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EXHIBIT 10.34
RESEARCH SERVICES AGREEMENT
▇▇▇ ▇▇▇▇▇ AND COMPANY
AND
ARRAY BIOPHARMA, INC.
MARCH 22, 2000
[ * ] = 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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TABLE OF CONTENTS
ARTICLE I DEFINITIONS ...........................................................................................1
1.1 Array Alliance Manager ...............................................................................1
1.2 Array Confidential Information .......................................................................1
1.3 Array FTE ............................................................................................2
1.4 Array Process ........................................................................................2
1.5 Array Project Leader .................................................................................2
1.6 Array Technology .....................................................................................2
1.7 Associate Chemist ....................................................................................2
1.8 Calendar Quarter .....................................................................................2
1.9 Calendar Year ........................................................................................2
1.10 cGCP .................................................................................................2
1.11 cGLP .................................................................................................3
1.12 cGMP .................................................................. ..............................3
1.13 Chemistry Invention ..................................................................................3
1.14 FTE Rate .............................................................................................3
1.15 Lilly Chemistry Research Services Director ...........................................................3
1.16 Lilly Confidential Information .......................................................................3
1.17 Lilly Project Leader .................................................................................4
1.18 Project ..............................................................................................4
1.19 Project Rights .......................................................................................4
1.20 Project Services .....................................................................................4
1.21 Project Team .........................................................................................4
1.22 Senior Chemist .......................................................................................4
1.23 Target Family ........................................................................................4
1.24 Third Party ..........................................................................................4
1.25 Work Plan ............................................................................................4
ARTICLE 2 PROJECT SERVICES .....................................................................................5
2.1 Project Services and Other Services ..................................................................5
2.2 Conflicts of Interest ................................................................................5
2.3 Project Management; Meetings .........................................................................5
2.4 Commitment to Project Staffing .......................................................................6
2.5 Array Employees Assigned to Each Project .............................................................6
2.6 Reduction of Array FTEs Assigned to Projects...........................................................7
2.7 Communication and Access to Array Employees ..........................................................8
2.8 Reports, Records and Project Rights Transfer .........................................................8
2.9 Project Diligence ....................................................................................9
2.10 Governing Authority of Projects ......................................................................9
2.11 Array's Alliance Management ..........................................................................9
ARTICLE 3 CONSULTING SERVICES ...................................................................................9
ARTICLE 4 PROJECT RESOURCES AND COSTS ..........................................................................10
4.1 Project Resources and Costs .........................................................................10
4.2 Subcontracting Project Services or Other Services ...................................................11
4.3 Training ............................................................................................12
[ * ] = 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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ARTICLE 5 PROJECT OWNERSHIP, PROCEDURAL SAFEGUARDS AND
SECURITY .......................................................................................12
5.1 Ownership of Project Rights...........................................................................12
5.2 Safeguards to Protect Confidentiality and Project Rights Ownership ..................................13
5.3 Security ............................................................................................13
ARTICLE 6 RECORD-KEEPING AND AUDIT .............................................................................14
6.1 Records Retention; Maintenance of Project Records ...................................................14
6.2 Financial Audit .....................................................................................14
6.3 Scientific and Legal Audit ..........................................................................15
6.4 Quality Assurance and Security Audits; On-Site Lilly Personnel ......................................15
ARTICLE 7 CONFIDENTIALITY AND NON-USE ..........................................................................15
7.1 Disclosure of Agreement .............................................................................15
7.2 Array's Confidentiality Obligations .................................................................16
7.3 Lilly's Confidentiality Obligations .................................................................16
ARTICLE 8 TERM AND TERMINATION .................................................................................17
8.1 Term 20
8.2 Lilly Voluntary Termination .........................................................................17
8.3 Termination for Default .............................................................................19
8.4 Termination Due to Array Ownership Change ...........................................................19
8.5 Termination Due to Insolvency or Liquidation ........................................................19
8.6 Surviving Rights and Obligations ....................................................................19
ARTICLE 9 REPRESENTATIONS AND WARRANTIES .......................................................................20
9.1 Lilly's Authority to Perform Agreement ..............................................................20
9.2 Array's Authority to Perform Agreement ..............................................................20
9.3 No Debarment ........................................................................................20
9.4 Year 2000 ...........................................................................................20
ARTICLE 10 MUTUAL INDEMNIFICATION ..............................................................................21
10.1 Array's Right to Indemnification ....................................................................21
10.2 Lilly's Right to Indemnification ....................................................................21
10.3 Indemnification Notice and Defense Procedures .......................................................21
ARTICLE 11 MISCELLANEOUS .......................................................................................22
11.1 Further Assurances ..................................................................................22
11.2 No Agency; Independent Contractor ...................................................................23
11.3 Compliance with Laws " ..............................................................................23
11.4 Compliance with Work Plan and Lilly Protocols and Specifications ...................................23
11.5 Insurance ...........................................................................................23
11.6 Amendment ...........................................................................................23
11.7 Notices and Reports .................................................................................23
11.8 Governing Law .......................................................................................24
11.9 Assignment ..........................................................................................24
11.10 Headings ............................................................................................24
[ * ] = 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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11.11 Severance of Clauses ................................................................................24
11.12 No Waiver ...........................................................................................24
11.13 Entire Agreement ....................................................................................24
11.14 Force Majeure .......................................................................................24
11.15 Counterparts ........................................................................................24
11.16 No Licenses .........................................................................................24
11.17 Jointly Prepared ....................................................................................24
Schedule 1.25 Work Plan(s)
Exhibit A: Initial Press Release
[ * ] = 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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RESEARCH SERVICES AGREEMENT
THIS RESEARCH SERVICES AGREEMENT (the "Agreement") is made and entered
into effective as of March 22, 2000 (the "Effective Date"), by and between ▇▇▇
▇▇▇▇▇ and Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ("Lilly"),
and Array BioPharma, Inc., ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ("Array")
(together Lilly and Array, the "Parties").
RECITALS
WHEREAS, Lilly is engaged in the discovery, development, manufacturing
and marketing of pharmaceutical products; and
WHEREAS, Array provides research services in all aspects of chemistry,
high through-put screening, structural biology, and information management; and
WHEREAS, Lilly proposes to retain Array for the specific purpose of
providing chemical research, analysis, manufacturing of specialty chemical
products or related services that Array may offer.
NOW, THEREFORE, it is agreed as follows:
ARTICLE I
DEFINITIONS
Terms defined in this Article I and parenthetically elsewhere shall
have the same meaning throughout this Agreement, including the recitals. Defined
terms may be used in the singular or plural.
1.1 "ARRAY ALLIANCE MANAGER" shall have the meaning set forth in
Section 2.11.
1.2 "ARRAY CONFIDENTIAL INFORMATION" means (1) any and all Array
Technology and (2) any and all information, items, material or know-how (whether
or not patentable), except Project Rights and Array Processes, that is disclosed
to and/or received by Lilly from Array (whether orally, in writing, through
observation, or otherwise) during the term of this Agreement or prior to the
Effective Date, including, without limitation, any and all suggestions,
descriptions, ideas, inventions (whether or not patentable) discoveries,
know-how, trade secrets, techniques, data, strategies, methods, syntheses,
processes, practices, documents, apparatus, devices, chemical formulations,
chemical synthesis, compounds, composition of matter, chemical samples, assays,
cell lines, vectors, screens, databases, database structures, and data analysis
methods.
Array Confidential Information shall not include any information that
Lilly can prove by competent evidence: (a) is now, or hereafter becomes, through
no act or failure to act
[ * ] = 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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on the part of Lilly, generally known or available; (b) is known by Lilly at the
time of receiving such information; (c) is hereafter disclosed to Lilly by a
Third Party, as a matter of right and without restriction on disclosure; (d) is
independently developed by Lilly without the aid, application, or use of Array
Confidential Information; (e) is the subject of a written permission to disclose
provided by Array; or (f) is required to be disclosed by law, government agency,
court order or valid discovery request in connection with a legal proceeding
1.3 "ARRAY FTE" means a full time equivalent scientific person year
consisting of no less than a total of [ * ] of Project Services carried out by a
Lilly approved, Array employee who is either (except as the Parties may
otherwise agree in writing) (i) the Array Alliance Manager or (ii) an Array
Project Leader, Senior Chemist, or Associate Chemist exclusively assigned and
fully dedicated to Projects. Time spent by Array FTEs will qualify for
reimbursement under Subsection (a) of Section 4.1 only if it involves Project
Services on or directly related to a Project.
1.4 "ARRAY PROCESS" means a chemical method or process that Array owns
or has a right to license and that Array used, by its choice, in at least one
Project, but the term expressly excludes all high-speed synthesis technology and
methods of Array.
1.5 "ARRAY PROJECT LEADER" means an Array employee assigned to lead
other Array employees working on a particular Project who, unless otherwise
agreed to by the Parties in writing, has a Ph.D. in organic chemistry, at least
[ * ] of professional medicinal chemistry experience, and previous project
leadership experience. Each Array Project Leader shall be responsible for
managing the day-to-day activities of Array FTEs assigned to his/her particular
Project to achieve the Project's goals in accordance with the Work Plan. An
Array Project Leader is subordinate to a Project's Lilly Project Leader
regarding all aspects of such Project, and therefore, any disagreements between
them regarding the direction, priorities, goals or other aspects of the Project
shall be resolved ultimately by the Lilly Project Leader.
1.6 "ARRAY TECHNOLOGY" means Array inventions (whether or not
patentable) and Array know-how. Array Technology expressly excludes all Project
Rights regardless of Array's contribution to such Rights and, for purposes of
this Agreement, also expressly excludes Array Processes.
1.7 "ASSOCIATE CHEMIST" means an Array employee who has at least a
Masters Degree in organic chemistry or its equivalent (i.e., a Bachelor Degree
in organic chemistry with several years of chemistry experience), but who is
neither an Array Project Leader, nor a Senior Chemist, nor the Array Alliance
Manager.
1.8 "CALENDAR QUARTER" means a three-month period ending on March 3 1,
June 30, September 30, or December 31.
1.9 "CALENDAR YEAR" means the twelve-month period ending on December
31.
1.10 "CGCP" means the then-current Good Clinical Practice Standards
promulgated or
[ * ] = 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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endorsed by the FDA (or in the case of foreign jurisdictions,
comparable regulatory standards), including those regulations or guidelines
expressed or implied in the regulatory filings made with respect to a particular
compound or product at issue with the FDA or foreign regulatory agents.
1.11 "CGLP" means the then-current Good Laboratory Practices
promulgated or endorsed by the FDA (or in the case of foreign jurisdictions,
comparable regulatory standards), including those procedures expressed or
implied in the regulatory filings made with respect to a particular compound or
product at issue with the FDA or foreign regulatory agents.
1.12 "CGNIP" means current Good Manufacturing Practices as defined in
the U.S. regulations 21 CFR Section 210 et seq., and the EEC Guide to Good
Manufacturing Practices for Medicinal Products (Vol. IV Rules Governing
Medicinal Products in the European Community 1992).
1.13 "CHEMISTRY INVENTION" means [ * ] that is conceived and invented
by Array (by itself or jointly with Lilly) as a direct or indirect result of
performing Project Services or Other Services.
1.14 "FTE RATE" means [ * ] (12) month period ending December 31, 2000.
The FTE Rate for any Calendar Year after December 31, 2000 shall be adjusted
annually by Lilly in accordance with the annual percentage change in the
Consumer Price Index for all Urban Consumers as published by the United States
Department of Labor, Bureau of Labor Statistics.
1.15 "LILLY CHEMISTRY RESEARCH SERVICES DIRECTOR" means [ * ] (or his
successor as appointed by Lilly). As the Lilly Chemistry Research Services
Director, [ * ] (or his successor) will be responsible for, among other things,
(i) issuing Projects to Array, (ii) discontinuing Projects, (iii) reviewing
Array FTE rosters, (iv) informing Array of each Project's initial staffing
needs, (v) communicating changes in staffing levels, (vi) coordinating Lilly's
communications with Array, and (vii) facilitating the smooth operations of all
Projects.
1.16 "LILLY CONFIDENTIAL INFORMATION" means (1) any and all Project
Rights and (2) any and all other information, items, material or know-how
(whether or not patentable) that is disclosed to and/or received by Array from
Lilly (whether orally, in writing, through observation, or otherwise) during the
term of this Agreement or prior to the Effective Date, including, without
limitation, any and all suggestions, descriptions, ideas, inventions (whether or
not patentable) discoveries, know-how, trade secrets, techniques, data,
strategies, methods, syntheses, processes, practices, documents, apparatus,
devices, chemical formulations, chemical synthesis, compounds, composition of
matter, chemical samples, assays, cell lines, vectors, screens, databases,
database structures, and data analysis methods.
Lilly Confidential Information shall not include any information that
Array can prove by competent evidence: (a) is now, or hereafter becomes, through
no act or failure to act on the part of Array, generally known or available; (b)
is known by Array at the time of receiving such information; (c) is hereafter
disclosed to Array by a Third Party, as a matter of right and without
restriction on disclosure; (d) is independently developed by Array without the
aid, application, or use of Lilly Confidential Information; (e) is the subject
of a written permission to disclose
[ * ] = 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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provided by Lilly; or (f) is required to be disclosed by law, government agency,
court order or valid discovery request in connection with a legal proceeding.
1.17 "LILLY PROJECT LEADER" means a Lilly employee assigned by Lilly to
lead a particular Project. Each Lilly Project Leader shall, with appropriate
input from Array, establish the direction, priorities, and goals of the Project
assigned to such Lilly Project Leader. However, the Lilly Project Leader shall
be the ultimate authority with respect to all issues and decisions pertaining to
such Project and as such, may at any time accept, reject, or modify any portion
of such Project or its Work Plan, except as specified in Section 2.10, to the
extent he or she deems appropriate.
1.18 "PROJECT" means a chemistry project for a specific biological
target submitted by Lilly and accepted by Array under the terms of this
Agreement and which is fully described in a Work Plan. "PROJECTS" means each and
every Project under the terms of this Agreement.
1.19 "PROJECT RIGHTS" shall have the meaning set forth in Subsection
(a) of Section 5.1.
1.20 "PROJECT SERVICES" shall have the meaning set forth in Section
2.1.
1.21 "PROJECT TEAM" means the Array FTEs who are assigned to and
Lilly's employees, independent contractors, and research collaboration partners
who are working on a particular Project.
1.22 "SENIOR CHEMIST" means an Array employee who has a Ph.D. in
organic chemistry and at least [ * ] of organic synthesis chemistry experience
subsequent to obtaining such Ph.D.
1.23 "TARGET FAMILY" means a group of targets related to each other by,
for example, [ * ]. Although the term is broader than a single target such as
"[ * ]" or "[ * ]", it is not as broad as "all [ * ]" or "all [ * ]". The
following non-comprehensive list contains examples of Target Families; [ * ],
and [ * ] and [ * ].
1.24 "THIRD PARTY" means any person or organization, incorporated or
unincorporated, other than Array, Lilly, or an employee of Array or Lilly.
1.25 "WORK PLAN" means the detailed plan established and submitted by
Lilly to Array for each Project that defines the parameters, scope, and
deliverables of such Project. Each Work Plan shall include, without limitation:
(i) a detailed plan for the Project at issue including specific milestones to be
accomplished throughout the Project; (ii) a determination of the Array FTEs
(including the composition thereof) reasonably necessary to carry out the
Project; and (iii) a designation by Lilly of whether the Project is a "[ * ],"
"[ * ]," or "[ * ]". It is anticipated that before finalizing a Work Plan the
Parties shall attempt to fully discuss and reach consensus regarding the
parameters, scope, deliverables, and other details of the Project described in
that Work Plan, but in the absence of such consensus, Lilly shall make the final
determination with respect to all issues and decisions related to a Project and
its Work Plan. All Work Plans shall be subsequently appended hereto as part of
SCHEDULE 1.25.
[ * ] = 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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ARTICLE 2
PROJECT SERVICES
2.1 PROJECT SERVICES AND OTHER SERVICES. Lilly hereby retains Array to
perform, and Array hereby agrees to perform, for Projects usual and customary
chemistry services and related services in the areas of compound design,
synthesis, isolation, and purification, structure, confirmation, and composition
and purity determination, in accordance with the applicable Work Plans ("Project
Services"). Depending on the Project, Project Services may include, without
limitation, consulting and technical assistance, chemical synthesis (including,
without limitation, design and synthesis of organic compounds), routine
computational analysis customary to compound design, synthetic chemical
research, medicinal chemistry, compound identification and quantification,
compound physical chemical characterization, and compound purification.
From time to time, Lilly may request Array to provide for Projects
chemistry and other services that are not Project Services ("Other Services"),
but Lilly recognizes that Array has the option to provide Other Services on a
case-by-case basis. Other Services may include, without limitation, synthesis of
general use chemical libraries, process research & development, and large scale
compound preparation, but expressly excludes the consulting services described
in Article 3. [ * ]
2.2 CONFLICTS OF INTEREST. Lilly recognizes that Array provides
research services to Third Parties: therefore, at the time the Lilly Chemistry
Research Services Director proposes a Project, he or she will identify the
Project's target and Target Family. If a Project that Lilly desires to issue to
Array deals with the same target or Target Family as that of a project,
assignment, or task on which Array is working or has agreed to work for a Third
Party, Array shall immediately, but no later than five (5) business days after
Lilly's proposed issuance of the Project, notify Lilly in writing of this
potential conflict of interest. In such cases, the Project will be issued to
Array only by mutual consent of the Parties.
2.3 PROJECT MANAGEMENT; MEETINGS. Each project shall be conducted in
accordance with its Work Plan and under the overall direction and guidance of
the Array Project Leader and Lilly Project Leader assigned to it (the "Project
Steering Committee"), but subject to the Lilly Project Leader's ultimate
authority. Each Project Steering Committee shall hold meetings regularly, and
except as the Lilly Project Leader may reasonably determine otherwise, shall
hold such meetings weekly. Such meetings may be held in-person, via video
conference and/or teleconference, provided that at least quarterly the Project
Steering Committee shall meet in-person, unless they otherwise agree. The Lilly
Project Leader, after consultation with the Array Project Leader, will determine
in good faith whether individual members of the Project Team or other persons
should also be in attendance at a Project Steering Committee meeting; however,
for in-person Project Steering Committee meetings, the in-person attendance of
individuals other than the Project Steering Committee members will be required
only upon the mutual consent of the Parties. In-person, Project Steering
Committee meetings will alternate between Lilly's Indianapolis, Indiana
facilities and Array's Boulder, Colorado facilities, unless the Parties
otherwise agree. Each [ * ] with the attendance of its employees and consultants
at such meetings.
[ * ] = 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.
10
2.4 COMMITMENT TO PROJECT STAFFING. During the term of this Agreement,
Array hereby agrees to have at least the following number of Array FTEs
available for Projects:
[ * ]
If Lilly desires to increase the number of Array FTEs beyond [ * ], all
such increases must be mutually agreed upon by the Parties in writing. Array,
however, will notify Lilly in writing each Calendar Quarter as to: (i) how many
Array employees are then-currently available to serve as Array FTEs for
Projects; and (ii) its forecast of how many such persons will be available
during the next three Calendar Quarters.
2.5 ARRAY EMPLOYEES ASSIGNED TO EACH PROJECT. Critical to the ultimate
success of each Project is the quality, make-up, and continuity of Array
employees assigned thereto. To that end, the Parties hereby agree as follows:
(a) Qualifications and Make-Up. Array hereby agrees that Array
employees assigned to perform Project Services or Other
Services shall have the skills necessary to efficiently
perform such services in a form and of a quality suitable to
Lilly.
Moreover, except as the Parties may otherwise agree in writing, Array
hereby agrees that each Array FTE shall consist only of Array employees that are
either: (i) the Array Alliance Manager or (ii) Array Project Leaders, Senior
Chemists, or Associate Chemists exclusively assigned and fully dedicated to
Projects. Moreover, except as the Parties may otherwise agree in writing, each
Project shall have at least one Array Project Leader and a ratio of Senior
Chemists to Associate Chemists no lower than as follows (the "Experience
Ratio"):
Type of Project Ratio - Senior/Associate
[ * ] [ * ]
For purposes of calculating the Experience Ratio, an Array Project
Leader, to the extent he is actually conducting work on a particular Project,
shall count as a Senior Chemist.
Finally, Array agrees to use reasonable efforts to ensure that [ * ] on
each Project shall not exceed [ * ]. The term "New Hire" means an Array employee
who has not been employed by Array [ * ] immediately preceding assignment to a
Project, and the term "Existing Employee" means an Array employee who has been
employed by Array for at least the [ * ] immediately preceding assignment to a
Project. If Array is unable to satisfy the [ * ] on a Project, it is acceptable
to Lilly that at least one Senior Chemist assigned to such Project is an
Existing Employee.
(b) Continuity to Projects. Array hereby agrees that: (1) Array
employees assigned to a Project as an Array FTE will [ * ]; and (2) Array
employees assigned to a Project as an Array FTE will [ * ]. An Array employee
assigned to a Project as an Array FTE, however, will not be required to continue
work on Projects under the following circumstances:
[ * ] = 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.
11
(i) The employee's termination from employment with Array;
(ii) The employee's temporary or permanent leave from Array (e.g.,
paternity, maternity, disability, etc.);
(iii) The removal of the employee from a Project [ * ] as described
in Subsection (c) below or;
(iv) Mutual agreement of the Parties.
(c) [ * ] Array Employees or Permitted Subcontractors from
Projects. In the event [ * ] the work of any Array employee or
permitted subcontractor on a Project or otherwise determines
[ * ] that [ * ] Array will [ * ] immediately (but no later
than two (2) business days [ * ]. Upon [ * ] Array will use
[ * ].
(d) Array FTE [ * ]. Prior to the commencement of a Project, Array
will provide Lilly with a [ * ] to the Project as Array FTEs
[ * ]. Upon [ * ], such persons shall be deemed to be [ * ]
the particular Project at issue and subject to the relevant
provisions pertaining thereto set forth in this Agreement.
Array shall notify Lilly in writing immediately (but in no
case later than two (2) business days after the occurrence
[ * ].
2.6 REDUCTION OF ARRAY FTES ASSIGNED TO PROJECTS.
(a) Reduction of Array FTEs. At any time, [ * ] Projects as Array
FTEs by providing Array with at least [ * ] advance written
notice, but [ * ] under this Section by [ * ] during any [ * ]
period, if so requested [ * ], to the extent that it can
rotate or move such additional Array FTEs [ * ] and provided
that such [ * ] is not inconsistent with Section 5.2 and the
other provisions of this Agreement.
(b) [ * ] Period. During a [ * ] day notice period described in
Subsection (a) above, the Array FTEs who are [ * ]
[ * ], except to the extent necessary to [ * ] a Project (or
their portion of one), if applicable, in an orderly and
efficient fashion including, without limitation, (i)
furnishing Lilly with all required reports, records and other
items as described in and in accordance with Section 2.8; (ii)
[ * ] Project Rights by Array [ * ] Lilly in accordance with
Section 5.1; (iii) [ * ] Lilly any and all [ * ]; and (iv)
[ * ] Lilly of any equipment, supplies, commodity chemicals,
non-commodity chemicals, solvents, reagents, materials, and
other capital items [ * ] as described in Subsection (e) of
Section 4.1, Lilly will [ * ] Array, pursuant to Subsection
(a) of Section 4.1, for the Project Services or Other Services
[ * ] Array FTEs during the [ * ] period, but no reduction
[ * ] of Array FTEs under this Section, even if more than
[ * ] Array FTEs during a [ * ] .
[ * ] = 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.
12
(c) Subsequent Increases in Array FTEs. If, after a reduction of
Array FTEs under this Section, Lilly requests additional Array
FTEs, Array agrees to use reasonable efforts to satisfy
Lilly's requests up to the [ * ] FTEs threshold in Section
2.4. Any increase in the number of Array FTEs beyond such
threshold must be mutually agreed upon by the Parties in
writing.
2.7 COMMUNICATION AND ACCESS TO ARRAY EMPLOYEES. In addition to the
meetings described in Section 2.3, during the term of the Agreement, Lilly shall
have reasonable and informal access to and communication and interaction with
Array employees assigned to each Project. It is anticipated that such access,
communication and interaction shall be similar to the access, communication, and
interaction that would occur between scientists in a fully integrated, drug
discovery project team effort. Furthermore, upon Lilly's request, Array shall
interact and communicate with Lilly regarding any issue raised by Lilly about a
Project as soon as reasonably practical.
2.8 REPORTS, RECORDS AND PROJECT RIGHTS TRANSFER. Array will provide to
Lilly the following reports and records:
(a) Quarterly Status Reports. For each Project, Array shall
provide the applicable Lilly Project Leader with a quarterly
status report that summarizes Array's efforts on such Project
during the Calendar Quarter at issue and that includes,
without limitation, a general summary of important events
and/or milestones achieved, personnel changes (if any),
learning points and other matters that Lilly may reasonably
deem appropriate, and a general description of Project Rights
(if any) discovered, invented, developed and/or conceived. The
Lilly Project Leader of each Project, with appropriate
consultation from the Array Project Leader assigned thereto,
shall determine the appropriate format of the quarterly status
report for his or her Project. In addition to the foregoing,
each quarterly status report shall include for each compound
discovered or made during the Calendar Quarter at issue: (i)
the structure of such compound; (ii) the name of the
discover/maker of such compound; (iii) the date such compound
was discovered or made; (iv) the list of analytical methods
for which data was obtained on such compound [ * ] and (v) the
quantity of such compound made.
(b) Project Reports. For each Project, Array will provide the
applicable Lilly Project Leader a report fully summarizing the
results and experimental procedures of the Project and
include, without limitation, a description of all Project
Rights, compound structures, analytical data, physical
chemical characterization data, compound numbers, lot numbers,
names of compound (including the name of the person who
prepared such compound), dates when compounds were prepared,
full details of synthesis methods (especially new methods or
modifications and new applications of existing methods),
compound purification conditions and protocols, chemical
reaction schemes, conditions, protocols, yields, certificate
of analysis, other items relevant to such Project, and such
other matters as Lilly may reasonably request. Array shall
provide such a report within thirty (30) days after the
earlier of: (i) Lilly's written request, (11) the completion
or termination of a Project, or (iii) the termination or
expiration of this Agreement.
[ * ] = 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.
13
(c) Records. Array will provide the applicable Lilly Project
Leader copies of all experimental and other Project records
and laboratory notebooks containing experimental descriptions
and data generated from work conducted under a Project within
thirty (30) days after the earlier of: (i) Lilly's written
request, (ii) the completion or termination of a Project, or
(iii) the termination or expiration of this Agreement.
(d) Project Rights & Other Lilly Confidential Information. To the
extent not already transferred to Lilly in accordance with
Subsection (b) of Section 5.1 or otherwise under this
Agreement, Array shall disclose and transfer ownership to
Lilly [ * ] within thirty (30) days of the earlier of: (i)
Lilly's written request, (ii) the completion or termination of
a particular Project, or (iii) the termination or expiration
of this Agreement.
2.9 PROJECT DILIGENCE. Array shall diligently use its best efforts to
render Project Services and Other Services hereunder in accordance with
prevailing high professional standards and will make all reasonable efforts to
produce consistently high levels of accuracy and expertise and to meet
timetables set forth under this Agreement for completion of Project Services and
Other Services.
2.10 GOVERNING AUTHORITY OF PROJECTS. Each Project shall be conducted
by its Project Team in accordance with its Work Plan and under the overall
directions and guidance of its Project Steering Committee, [ * ].
2.11 ARRAY'S ALLIANCE MANAGEMENT. Array hereby designates ▇▇▇▇▇ ▇▇▇▇,
Ph.D. (and any successor President/Chief Science Officer) as the Array officer
who is ultimately responsible for ensuring its performance under this Agreement.
Array also agrees to designate, with Lilly's prior written approval, an Array
employee to oversee Array's day-to-day activities on all Projects, to coordinate
Array's communications with Lilly, and to otherwise facilitate the smooth
operations of all Projects (the "Array Alliance Manager"). Along with his other
responsibilities for this Agreement, the Parties agree that ▇▇. ▇▇▇▇ will serve
as the interim Array Alliance Manager until a successor Array Alliance Manager
is appointed in accordance with this Section. However, notwithstanding Section
1.2 and Subsection (a) of Section 2.5, Array is not entitled to any compensation
from Lilly for ▇▇. ▇▇▇▇'▇ work as the interim Array Alliance Manager.
ARTICLE 3
CONSULTING SERVICES
Array employees who, as reasonably determined by a Lilly Project Leader
after consultation with the Array Project Leader, possess useful technical
expertise to a Project but who are not assigned to that Project shall be made
available at such times as Lilly reasonably requests for technical consultations
with Lilly personnel via telephone or in-person. Such Array employees may
include, without limitation, senior management of Array. In the event that such
[ * ] = 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.
14
consultation is in the form of an in-person consultation, the time and location
of such consultation shall be mutually agreed upon by the Parties in good faith
[ * ].
ARTICLE 4
PROJECT RESOURCES AND COSTS
4.1 PROJECT RESOURCES AND COSTS.
(a) FTE Funding and Reimbursement of Other Costs. [ * ]. In
addition, in the event that (i) Other Services are used by
Array in accordance with Section 2. 1, (ii) Third Parties are
used by Array in accordance with Section 4.2, or (iii) Array
incurs reimbursable expenses under Subsection (e) of this
Section 4. 1, Lilly shall reimburse Array for only the
incremental actual costs incurred by Array for such services
or items (i.e., no ▇▇▇▇-up) and not according to the FTE Rate.
(b) Invoice. Within thirty (30) days [ * ], Array shall provide
the Lilly Chemistry Research Services Director with an invoice
detailing: (i) the name, number, and title of each Array FTE
performing Project Services during the preceding [ * ]; (ii)
the total Project Service hours worked by each Array FTE
during the preceding [ * ]; (iii) the Project Service hours
worked on each Project during the preceding [ * ]; (iv) the
number of Project Services hours that were United
States-based; (v) the Other Services performed by Array during
the preceding [ * ] (if any); (vi) the permitted Third
Parties' services used by Array during the preceding [ * ] (if
any); and (vii) the actual costs incurred by Array during the
preceding [ * ] for items reimbursable under Subsection (e) of
this Section 4.1 (if any). Array's invoice for the last month
in a Calendar Year will also contain sufficient information
and documentation to calculate the year end Array FTE true-up,
if any, under Subsection (d) of this Section. Lilly, or its
representatives, shall have the right to audit Array records
with respect to any invoice in accordance with Section 6.2.
(c) Project Payments. [ * ]
(d) Year End Array FTE True-Up. If:
(i) an Array FTE worked [ * ];
(ii) Lilly, under Subsection (a) of this Section, paid a
pro-rated FTE Rate for that Array FTE's reduced work
hours during that [ * ]; and
(iii) that Array FTE worked [ * ] on Project Services in
another month during the Calendar Year,
Lilly, to the extent of such excess hours, will pay Array the
difference between the pro-rated amount it paid Array for the
Array FTE's reduced hours month [ * ] of the FTE Rate. Lilly's
payment of such amount, if any, will accompany Lilly's
[ * ] = 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.
15
payment made under Subsection (c) of this Section for the last
month in a Calendar Year. An Array FTE's excess hours do not
carry over to the next Calendar Year nor are they applicable
to another Array FTE.
(e) Equipment, Supplies, and Reasonable Capital Expenditures.
Except for non- commodity chemicals or except as the Parties
otherwise agree in writing, the Parties acknowledge and agree
that Array is solely responsible for the cost of all
equipment, supplies, commodity chemicals (e.g., chemicals that
are readily available in bulk quantities and obtainable from
multiple suppliers and whose cost is generally considered
relatively low, fairly well-defined, and consistent across the
chemical supply industry), solvents, reagents, materials, and
reasonable capital items that Array uses (or is required to
use) in connection with the Projects. Lilly agrees to
reimburse Array for its purchases of non-commodity chemicals
that are necessary for a Project, but only if Lilly
pre-approved such purchase in writing.
When Lilly reimburses Array for necessary and pre-approved
non-commodity chemicals or in the event, Lilly, in its sole
discretion, supplies, leases, or purchases (or reimburses
Array for) any equipment, supplies, commodity chemicals,
non-commodity chemicals, solvents, reagents, materials, or
other capital items in connection with Array's efforts on a
Project, Lilly shall be the sole owner of such item, and,
Array shall, to the extent not already done so, transfer sole
ownership in such item to Lilly and deliver possession of such
item to Lilly at the earlier of: (i) the completion or
termination of the Project at issue, (ii) Lilly's request, or
(iii) the termination or expiration of this Agreement. In
certain cases (e.g., Lilly determines that the item might be
useful in another Project), Lilly may reasonably delay
transfer of ownership and/or possession of such item by
notifying Array of the same.
(f) Research Tax Credits. To the extent permitted by law, Lilly
shall be entitled to any tax credits due on account of
research and development expenses it pays to Array under this
Agreement.
4.2 SUBCONTRACTING PROJECT SERVICES OR OTHER SERVICES. The Parties
acknowledge and agree that subcontracting (including, without limitation, any
consultation by Third Parties) of Project Services or Other Services by Array is
generally prohibited under this Agreement. However, Array may subcontract
Project Services or Other Services if, prior to such subcontract:
(i) The Lilly Chemistry Research Services Director
approves, in writing, that such subcontract would be
useful or beneficial to a Project and that the
selected Third Party is an appropriate subcontractor
for the particular Project Services or Other Services
at issue;
(ii) The Lilly Chemistry Research Services Director
approves, in writing, the cost associated therewith;
[ * ] = 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.
16
(iii) Array and/or Lilly, as appropriate, obtain written
confidentiality and nonuse agreements from the Third
Party;
(iv) Array and/or Lilly, as appropriate, obtain written
assignments from the Third Party of all patent rights
and know-how that such Third Party may develop by
reason of work performed under this Agreement (which,
in turn, shall ultimately be assigned to Lilly in
accordance with Section 5. 1); and
(v) Array and/or Lilly, as appropriate, obtain a
certification from the Third Party that such work
will be performed according to cGLPs, cGCPs and/or
cGMPs, as applicable.
To be reimbursed for the incremental actual costs incurred from such approved
Third Parties' services, Array shall provide Lilly with all documentation of
such costs as Lilly may reasonably require. The foregoing prohibition is
intended to apply only to Array's ability to subcontract Project Services or
Other Services and is not intended to limit Lilly's ability to subcontract in
any respect.
4.3 TRAINING. Except as the Parties otherwise agree in writing, the
Parties acknowledge and agree that Array is solely responsible for providing and
paying for training, including attendance at scientific meetings, as may be
necessary for its employees and permitted subcontractors to perform their duties
under this Agreement.
ARTICLE 5
PROJECT OWNERSHIP, PROCEDURAL SAFEGUARDS AND SECURITY
5.1 OWNERSHIP OF PROJECT RIGHTS.
(a) Lilly Sole Ownership. Lilly shall be the sole and exclusive
owner of any and all information, items, material, and
know-how that is either (i) disclosed (whether orally, in
writing, through observation, or otherwise) to Array from
Lilly under this Agreement or (ii) acquired, generated,
developed, discovered, evolved or derived [ * ] Project
Services or Other Services, including, without limitation, any
and all suggestions, descriptions, ideas, inventions (whether
or not patentable) discoveries, know-how, trade secrets,
techniques, data, strategies, methods, syntheses, processes,
practices, documents, apparatus, devices, chemical
formulations, chemical synthesis, compounds, composition of
matter, chemical samples, assays, cell lines, vectors,
screens, databases, database structures, and data analysis
methods (collectively, "Project Rights").
(b) Assignment and Transfer of Project Rights. In order to ensure
the sole ownership interest in Project Rights is fully and
exclusively vested in Lilly, Array, after the conception,
discovery, invention and/or development of Project Rights,
shall (and shall cause its employees, permitted
subcontractors, and other agents providing Project Services or
Other Services hereunder to) promptly cooperate with Lilly in
[ * ] = 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.
17
taking all steps that Lilly believes reasonably necessary or
desirable to secure its ownership rights in such Project
Rights including, without limitation, cooperating in
completing any patent applications relating to such Project
Rights, as well as executing and delivering any instrument
that may be reasonably required to assign, convey and transfer
to Lilly any ownership interest, if any, that Array or its
employees, permitted subcontractors, and other agents
providing Project Services or Other Services hereunder may
have in such Project Rights.
Moreover, after the conception, discovery, invention and/or
development of Project Rights, [ * ] (and shall cause its
employees, permitted subcontractors, and other agents
providing Project Services or Other Services to) [ * ] items,
material, and know-how encompassed in Project Rights together
with any other information, items, material, and know-how
[ * ] Project Rights. Finally, [ * ] with reasonable technical
assistance in connection with such disclosure and transfer of
Project Rights.
(c) [ * ]. Pursuant to Subsection (a) above, Lilly has exclusive
rights to [ * ]. Array shall have the right to practice a
[ * ] for purposes other than a Project [ * ].
(d) Non-Exclusive License to [ * ]. Array hereby grants to Lilly
[ * ] to practice [ * ] only to Third Parties that are
involved with Lilly in research and development
collaborations, and such sublicenses shall be only for the
purpose of carrying out such collaborations. Lilly shall not
have any other sublicense rights.
5.2 SAFEGUARDS TO PROTECT CONFIDENTIALITY AND PROJECT RIGHTS
OWNERSHIP.
(a) As a means reasonably designed to protect Lilly's sole
ownership rights in [ * ] and otherwise to ensure Array's
compliance with its obligations set forth in Section 5.1 and
Section 7.2, Array agrees [ * ]. In addition, Array agrees
that [ * ]. Array's obligations under this Subsection shall
survive until [ * ] after the expiration or termination date
of this Agreement.
(b) Array hereby agrees that, each of its employees and permitted
subcontractors will, prior to commencing work on any Project,
execute an instrument agreeing to: (i) assign to Array all
[ * ] arising during the course of and as a result of their
association with Array (which shall ultimately be assigned by
Array to Lilly in accordance with the assignment provisions of
Subsection (b) of Section 5.1); and (ii) to abide by
confidentiality and non-use restrictions regarding the terms
of the Agreement and Lilly Confidential Information in a
manner consistent with Array's obligations under Section 7.1
and Section 7.2.
5.3 Security. As a means reasonably designed to protect Lilly's sole
ownership rights in [ * ], to protect the secrecy and confidentiality of all
[ * ] and other Lilly Confidential Information, and to otherwise ensure Array's
compliance with its obligations set forth in Section 5.1 and Section 7.2, Array
agrees to maintain appropriate security measures no less stringent than measures
that are customary in the industry. In addition to customary security measures,
[ * ] = 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.
18
Array shall: (i) conduct all [ * ] and Other Services in a facility or
facilities solely dedicated and exclusively used for Projects; and (ii) maintain
informational technology systems that are compatible with Lilly's informational
technology systems and that ensure confidential communications and data
transfers between Array and Lilly.
ARTICLE 6
RECORD-KEEPING AND AUDIT
6.1 RECORDS RETENTION; MAINTENANCE OF PROJECT RECORDS. In addition to
providing copies of records and other Project Rights in accordance with Section
2.8, during the term of this Agreement and consistent with Array's security
obligations set forth in Section 5.3, Array shall retain and maintain all
written materials and all other data and information obtained or generated by
Array in the course of providing Project Services and Other Services in a secure
area reasonably protected from fire, theft and destruction for up to ten (10)
years after the expiration or termination of this Agreement. Upon the expiration
or termination of this Agreement, such items, at Lilly's option, may be (i)
delivered to Lilly or its designee in such form as is then currently in the
possession of Array, (ii) retained by Array for Lilly for a period of time
mutually agreed upon by the Parties, or (iii) disposed of, at the direction and
written request of Lilly, unless such materials are otherwise required to be
stored or maintained by Array as a matter of law or regulation. In no event
shall Array dispose of any materials, data, or other information obtained or
generated by Array in the course of providing Project Services and Other
Services without first giving, Lilly sixty (60) days prior written notice of
Array's intent to do so.
For those records pertaining to the accuracy and correctness of an
Array invoice, such records shall be maintained for a three (3) year period
following the year in which such invoice was paid by Lilly.
Array shall keep complete and accurate records pertaining to each
Project that are reasonably useful to confirm the efforts. Array shall record
all information relating to Projects in written or electronic form. Such records
shall be kept separately from written records documenting other research and
development that may be conducted by Array. All such written records shall be
maintained in a form sufficient to satisfy regulatory authorities. Moreover,
from time to time, upon Lilly's request Array will promptly provide copies of
any of the records that it maintains for Lilly.
6.2 FINANCIAL AUDIT. Upon written notice from Lilly, Array shall permit
Lilly or Lilly's representative to have access during normal business hours to
audit the books and records of Array and its permitted subcontractors as may be
reasonably necessary to verify the accuracy of any payments made under this
Agreement. The audit shall be limited to books and records for any Calendar Year
ending not more than twenty-four (24) months prior to the date of such notice.
All reports, invoices and payments not disputed as to correctness by Lilly
within three (3) years after receipt thereof shall thereafter conclusively be
deemed correct for all purposes. Such audit shall be at Lilly's expense unless
the audit establishes that Lilly's payments for the period examined exceeded the
amount that should have been paid by five percent (5%) or more, in which case
Array shall be responsible for the reasonable expenses of such audit. Within
thirty (30) days after both Parties have received an audit report, Lilly or
Array, as appropriate, will
[ * ] = 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.
19
compensate the other Party for any errors or omissions revealed by an audit.
This audit night shall survive for a period of two (2) years from the date this
Agreement terminates or expires.
6.3 SCIENTIFIC AND LEGAL AUDIT. Upon written notice from Lilly, Array
shall permit Lilly or Lilly's representative to have access during normal
business hours to audit the books and records of Array and its permitted
subcontractors as may be reasonably necessary to confirm that Project Services
and Other Services have been performed accurately and in compliance with (i)
prevailing professional standards of quality, (ii) applicable Lilly protocols
and/or specifications of which Array was reasonably advised, (iii) applicable
laws and regulations, and (iv) applicable Work Plans. Such an audit shall be at
Lilly's expense unless the audit establishes a material error by Array. In such
case, in addition to other remedies Lilly may have against Array for such
material error, Array shall be responsible for the reasonable expenses of the
audit. This audit right shall survive for a period of ten (10) years from the
date this Agreement terminates or expires.
6.4 QUALITY ASSURANCE AND SECURITY AUDITS; ON-SITE LILLY PERSONNEL.
During the term of this Agreement, Lilly retains the right at reasonable times
and upon reasonable prior written notice to conduct quality assurance and
security audits of Array's research and development facilities, as well as of
the facilities of Array's permitted subcontractors (if any), where work on a
Project is conducted. Furthermore, from time to time, upon Lilly's reasonable
written request, Array will allow Lilly personnel to be located at Array
facilities where Projects are conducted to further a particular Project as well
as to ensure that such facilities meet Lilly and regulatory authority standards
and the security standards set forth in Section 5.3. Array hereby agrees to
cooperate with Lilly and take such other acts as may be reasonably necessary or
appropriate to carry out the purpose and intent of this Section.
ARTICLE 7
CONFIDENTIALITY AND NON-USE
7.1 DISCLOSURE OF AGREEMENT.
(a) Existence of the Agreement. Except as the Parties otherwise
agree, neither Array nor Lilly shall release any information
to any Third Party with respect to the existence of this
Agreement (including, without limitation, either Party's name)
until the Parties issue the press release, which has been
agreed to by both Parties and a copy of which is attached as
Exhibit A. Afterwards, each Party may use the substance of
such press release and the substance of other public
announcements of the other Party without prior notice.
(b) Terms of the Agreement. Except as required by law or except
for a request from an authorized representative of a U.S.
and/or foreign tax authority for a copy of the Agreement,
neither Array nor Lilly shall release any information to any
Third Party with respect to the terms of this Agreement
without the prior written consent of the other. This
prohibition includes, but is not limited to, any press
releases, educational and scientific conferences,
publications, promotional
[ * ] = 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.
20
materials, governmental filings, and discussions with public
officials and the media.
If a Party determines a release of information regarding the terms of
this Agreement is required by law, that Party will notify the other
Party as soon as practical and give as much detail as possible in
relation to the disclosure required. The Parties will then cooperate
with respect to determining what information will actually be released.
If a Party receives a request from an authorized representative of a
U.S. and/or foreign tax authority for a copy of the Agreement, that
Party may provide a copy of the Agreement to such tax authority
representative without advance notice to or the consent or cooperation
of the other Party, but the disclosing Party must notify the other
Party of the disclosure as soon as practical. The release of any
additional information to a tax authority is subject to the notice and
cooperation requirements for other disclosures required by law as set
forth in this Section.
7.2 ARRAY'S CONFIDENTIALITY OBLIGATIONS. Except upon obtaining Lilly's
prior written consent to the contrary, Array agrees that while this Agreement is
in effect and for [ * ] after the date this Agreement terminates or expires:
(i) it will not, nor will it permit any of its employees
or Permitted Third Parties to, use Lilly Confidential
Information other than for the purposes of this
Agreement;
(ii) it will not, nor will it permit any of its employees
or Permitted Third Parties to, disclose any Lilly
Confidential Information to a Third Party (including
Third Party consultants, representatives, or agents
of Array);
(iii) it will not, nor will it permit any of its employees
or Permitted Third Parties to, disclose any Lilly
Confidential Information. to any Array employee or
Permitted Third Party who does not need to know such
Lilly Confidential Information to further a Project;
and
(iv) it will not, nor will it permit any of its employees
or Permitted Third Parties to, publish or submit for
publication Lilly Confidential Information.
A "Permitted Third Party" is a Third Party for whom Lilly has given written
consent to Array for Array's disclosure of specified Lilly Confidential
Information. For the sole purpose of monitoring its obligations hereunder, Array
may retain in its legal files one copy of all Lilly Confidential Information
that it receives.
7.3 LILLY'S CONFIDENTIALITY OBLIGATIONS.
(a) Array Confidential Information. Except upon obtaining Array's
prior written consent to the contrary, Lilly agrees that while
this Agreement is in effect and for [ * ] after the date this
Agreement terminates or expires:
[ * ] = 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.
21
(i) it will not, nor will it permit any of its employees
or Excepted Third Parties to, use Array Confidential
Information other than for the purposes of this
Agreement;
(ii) it will not, nor will it permit any of its employees
or Excepted Third Parties to, disclose any Array
Confidential Information to a Third Party;
(iii) it will not, nor will it permit any of its employees
or Excepted Third Parties to, disclose any Array
Confidential Information to any Lilly employee or
Excepted Third Party who does not need to know such
Array Confidential Information to further a Project;
and
(iv) it will not, nor will it permit any of its employees
or Excepted Third Parties to, publish or submit for
publication Array Confidential Information.
An "Excepted Third Party" is a Third Party for whom Array has
given written consent to Lilly for Lilly's disclosure of
specified Array Confidential Information. Lilly agrees that
its Excepted Third Parties shall be bound by confidentiality
and non-use obligations regarding the terms of this Agreement
and Array Confidential Information consistent with Lilly's
under Section 7.1 and this Subsection. For the sole purpose of
monitoring its obligations hereunder, Lilly may retain in its
legal files one copy of all Array Confidential Information
that it receives.
(b) Array Processes. Lilly agrees that, while this Agreement is in
effect and for [ * ] after the date this Agreement terminates
or expires, it may disclose Array Processes to a Third Party
only with Array's prior written consent, except that Lilly
may, without Array's consent, disclose Array Processes to a
Third Party (i) working on behalf of Lilly or (ii) involved
with Lilly in a research and development collaboration. Lilly
agrees that Third Parties to whom Array Processes are
disclosed under this Subsection shall be bound by
confidentiality obligations regarding Array Processes
consistent with Lilly's under this Subsection.
ARTICLE 8
TERM AND TERMINATION
8.1 TERM. This Agreement shall commence on the Effective Date and shall
continue in effect until five (5) years thereafter, unless earlier terminated as
provided in this Agreement or extended by mutual written agreement of the
Parties.
8.2 LILLY VOLUNTARY TERMINATION. At any time after the Effective Date,
with or without cause, Lilly may terminate this Agreement upon providing Array
with thirty (30) days advance written notice of the same. Such termination shall
be effective upon the expiration of such thirty (30) day period. In the event
that Lilly terminates the Agreement under this Section
[ * ] = 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.
22
(and only under this Section), Lilly shall pay Array the applicable, one-time
lump sum termination payment below:
(i) [ * ] Array FTEs. If [ * ] Array FTEs were charged to
Projects during the Calendar Quarter immediately preceding Lilly's notice of
termination, then Lilly shall pay Array an amount equal to [ * ] of the Array
FTE funding obligation incurred by Lilly under Subsection (a) of Section 4.1
with respect to such [ * ] (i.e., only the amount of such obligation incurred
with respect to Array FTEs, specifically excluding any other reimbursable items
described in Subsection (a) of Section 4.1).
(ii) [ * ] Array FTEs. If [ * ] Array FTEs were charged to
Projects during the Calendar Quarter immediately preceding Lilly's
notice of termination, then Lilly shall pay Array an amount equal to
[ * ] of the Array FTE funding obligation incurred by Lilly under
Subsection (a) of Section 4.1 with respect to such [ * ] (i.e., only
the amount of such obligation incurred with respect to Array FTEs,
specifically excluding any other reimbursable items described in
Subsection (a) of Section 4.1).
(iii) [ * ] Array FTEs. If [ * ] Array FTEs were charged to
Projects during the Calendar Quarter immediately preceding Lilly's
notice of termination, then Lilly shall pay Array an amount equal to
[ * ] of the Array FTE funding obligation incurred by Lilly under
Subsection (a) of Section 4.1 with respect to such [ * ] (i.e., only
the amount of such obligation incurred with respect to Array FTEs,
specifically excluding any other reimbursable items described in
Subsection (a) of Section 4.1).
(iv) [ * ] Array FTEs. If [ * ] Array FTEs were charged to
Projects during the Calendar Quarter immediately preceding Lilly's
notice of termination, then Lilly shall pay Array an amount equal to
[ * ] of the Array FTE funding obligation incurred by Lilly under
Subsection (a) of Section 4.1 with respect to such [ * ] (i.e., only
the amount of such obligation incurred with respect to Array FTEs,
specifically excluding any other reimbursable items described in
Subsection (a) of Section 4.1).
(v) [ * ] Array FTEs. If greater then [ * ] Array FTEs were
charged to Projects during the Calendar Quarter immediately preceding
Lilly's notice of termination, then Lilly shall pay Array an amount
equal to [ * ] of the Array FrE funding obligation incurred by Lilly
under Subsection (a) of Section 4.1 with respect to such [ * ] (i.e.,
only the amount of such obligation incurred with respect to Array FTEs,
specifically excluding any other reimbursable items described in
Subsection (a) of Section 4.1).
The lump sum termination payment due under this Section shall be paid
by Lilly within thirty (30) days of the later of: (i) Lilly's receipt of all
reports, records, and other items due to Lilly under Section 2.8; (ii) the
completed transfer and assignment of all Project Rights by Array to Lilly in
accordance with Section 5. 1; (iii) the completed transfer to Lilly of any and
all Lilly Confidential Information that Array possesses; and (iv) the transfer
of possession and ownership to Lilly of any equipment, supplies, commodity
chemicals, non-commodity chemicals, solvents, reagents, materials, and other
capital items that Lilly supplied, leased, or purchased (or reimbursed Array
for) as described in Subsection (e) of Section 4.1.
In addition, the lump sum payment due under this Section shall be in
lieu of Lilly's payment obligations under Subsection (a) of Section 4.1 during
the thirty (30) day notice period.
[ * ] = 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.
23
Therefore, Lilly shall neither be required nor obligated to fund Array FTEs
under Subsection (a) of Section 4.1 during such thirty (30) day notice period.
Similarly, Array FTEs need not work on Projects during such thirty (30) day
notice period, except to the extent necessary to wind-down the Projects in an
orderly and efficient fashion including, without limitation, (i) furnishing
Lilly with all required reports, records, and other items as described in and in
accordance with Section 2.8; (ii) transferring and assigning all Project Rights
to Lilly in accordance with Section 5. 1; (ill) transferring to Lilly of any and
all Lilly Confidential Information that Array possesses; and (iv) transferring
ownership and possession to Lilly of any equipment, supplies, commodity
chemicals, non-commodity chemicals, solvents, reagents, materials, and other
capital items that Lilly either supplied, leased, or purchased (or reimbursed
Array for) as described in Subsection (e) of Section 4. 1.
8.3 TERMINATION FOR DEFAULT. If a Party believes the other Party is in
default of any material obligation under this Agreement, it may give notice of
such default to the other Party. Upon receipt of such notice, the defaulting
Party shall have thirty (30) days to remedy such default. If such default is not
remedied within those thirty (30) days, the Party claiming default may give
notice of termination, and termination of this Agreement shall be effective
immediately upon the defaulting Party's receipt of such notice.
8.4 TERMINATION DUE TO ARRAY OWNERSHIP CHANGE. In the event that Array
is reorganized, acquired by or merged with a Third Party, or substantially all
of its assets to which this Agreement relates are acquired by a Third Party
(collectively and individually, an "Ownership Change Event"), Lilly may, in its
sole discretion, terminate this Agreement upon thirty (30) days written notice
to Array (or, if applicable, Array's successor). Lilly may provide Array (or, if
applicable, Array's successor) with such notice at any time within twelve (12)
months of the occurrence of an Ownership Change Event.
8.5 TERMINATION DUE TO INSOLVENCY OR LIQUIDATION. Upon written notice
to the other Party, a Party may terminate this Agreement immediately if: (1) the
other Party goes into liquidation, other than for the purpose of a bona fide
reorganization, (ii) a receiver or trustee is appointed for the other Party's
property or estate, or (iii) the other Party makes an assignment for the benefit
of its creditors (whether or not any of the aforesaid acts are the outcome of a
voluntary act of the non-terminating Party). Termination of the Agreement under
this Section shall be effective as the occurrence of the applicable event.
8.6 SURVIVING RIGHTS AND OBLIGATIONS. The obligations of the Parties
under Section 5.1 (Ownership of Project Rights), Section 5.2 (Procedural
Safeguard Restrictions to Protect Confidentiality and Project Right Ownership),
Article 6 (Record Keeping and Audit), Article 7 (Confidentiality), the
applicable termination provisions of Article 8 (Termination), Article 9
(Representations & Warranties), Article 10 (Indemnification), and Article 11
(Miscellaneous) will survive the termination or expiration of this Agreement.
Also, termination or expiration of this Agreement shall not relieve either Party
from obligations that are expressly indicated to survive termination or
expiration of the Agreement. Finally, except as specifically provided to the
contrary in this Agreement, termination or expiration of the Agreement for any
reason shall be without prejudice to any rights that shall have accrued to the
benefit of either Party prior to such termination or expiration and shall not
relieve the Parties of any obligations accrued hereunder prior to such
termination or expiration.
[ * ] = 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.
24
Moreover, to the extent not already done so under this Agreement, Array
shall promptly (but in no event later than thirty (30) days after the effective
date of the termination of expiration of the Agreement): (i) submit to Lilly all
required reports, records, and other items as described in and in accordance
with Section 2.8; (ii) transfer ownership and possession to Lilly of all Project
Rights and Lilly Confidential Information as described further in Sections 2.8
and 5. 1; and (iii) transfer ownership and possession to Lilly of any equipment,
supplies, commodity chemicals, non-commodity chemicals, solvents, reagents,
materials, and other capital items that Lilly either supplied, leased, or
purchased (or reimbursed Array for) as described in Subsection (e) of Section
4.1.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
9.1 LILLY'S AUTHORITY TO PERFORM AGREEMENT. Lilly represents and
warrants to Array that (i) it is free to enter into and perform this Agreement;
(ii) it has no agreement, policy, or other understanding with any other person,
firm, or entity exists that would interfere or conflict with its obligations
hereunder; and (iii) it has and will maintain all regulatory or governmental
permits, licenses, and approvals necessary for it to perform its obligations
legally in accordance with this Agreement. Moreover, Lilly represents and
war-rants to Array that this Agreement is a legal, valid, and binding obligation
of it, enforceable against it in accordance with the terms of this Agreement.
9.2 ARRAY'S AUTHORITY TO PERFORM AGREEMENT. Array represents and
warrants to Lilly that (i) it is free to enter into and perform this Agreement;
(ii) it has no agreement, policy, or other understanding with any other person,
firm or entity exists that would interfere or conflict with its obligations
hereunder; and (iii) it has and will maintain all regulatory or governmental
permits, licenses, and approvals necessary for it to perform its obligations
legally in accordance with this Agreement. Moreover, Array represents and
warrants to Lilly that this Agreement is a legal, valid, and binding obligation
of it, enforceable against it in accordance with the terms of this Agreement.
9.3 NO DEBARMENT. Array hereby represents and warrants that it is in
compliance with the provisions of the Generic Drug Enforcement Act of 1992 and
covenants that at all times during this Agreement, it, its employees, and its
permitted subcontractors will comply with such Act. Array agrees, upon Lilly's
request, to certify in writing that neither it nor its employees or permitted
subcontractors have been debarred under the provisions of such Act.
9.4 YEAR 2000. Array hereby represents and warrants that its business
systems and/or computer systems and the business systems and/or computer systems
of any Third Party on which it is dependent are Year 2000 compliant. Array also
covenants to Lilly that it shall use commercially reasonable efforts to ensure
its obligations under this Agreement are not materially delayed, interrupted, or
otherwise hindered to the detriment of Lilly due to: (i) the business systems
and/or computer systems of Array ceasing to function or otherwise malfunctioning
because of date-based problems related to the Year 2000; or (ii) the business
systems and/or
[ * ] = 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.
25
computer systems of any Third Party on which Array is dependent ceasing to
function or otherwise malfunctioning because of date-based problems related to
the Year 2000.
ARTICLE 10
MUTUAL INDEMNIFICATION
10.1 ARRAY'S RIGHT TO INDEMNIFICATION. Lilly shall indemnify and hold
harmless Array, its successors and assigns, and the directors, officers,
employees, agents and counsel thereof (the "Array Indemnitees") from and against
any and all liabilities, damages, losses, penalties, fines, costs, interest, or
expenses, including, without limitation reasonable attorneys, fees, ("Damages")
arising from or occurring as a result of a Third Party's, Lilly employee's, or
governmental agency's claim, action, suit, judgment, or settlement against an
Array Indemnitee that is due to or based upon: (i) the failure of Lilly to
disclose to Array any chemical handling and exposure hazards information related
to a Project known by Lilly; (ii) any breach of this Agreement by Lilly; (iii) a
clinical trial conducted or authorized by Lilly or its designee that is based
upon a compound transferred to Lilly by Array; or (iv) a product developed,
manufactured, used, sold, or otherwise distributed by or under authority of
Lilly or its designees that is based upon a compound transferred to Lilly by
Array (a "Third Party Claim"). However, Lilly shall not indemnify or hold
harmless Array Indemnitees from a Third Party Claim to the extent that Damages
from such Third Party Claim are finally determined to have resulted from the
acts or omissions of an Array Indemnitee, including the failure of Array to
disclose to Lilly any chemical handling and exposure hazards information known
by Array that was related to a compound that it transferred to Lilly.
10.2 LILLY'S RIGHT TO INDEMNIFICATION. Array shall indemnify and hold
harmless Lilly, its successors and assigns, and the directors, officers,
employees, agents and counsel thereof (the "Lilly Indemnitees") from and against
any and all Damages, payroll taxes, employment taxes, and employee benefits
arising from or occurring as a result of a Third Party's, Array employee's, or
governmental agency's claim, action, suit, judgment, or settlement against a
Lilly Indemnitee that is due to or based upon: (i) the failure of Array to
disclose to Lilly any chemical handling and exposure hazards information related
to a Project known by Array; (ii) any breach of this Agreement by Array; or
(iii) the Parties' classification or characterization of an Array employee or
independent contractor as a non-Lilly employee or the denial to an Array
employee or independent contractor of benefits extended to Lilly employees (a
"Lilly Third Party Claim"). However, Array shall not indemnify or hold harmless
Lilly Indemnitees from a Lilly Third Party Claim to the extent that Damages from
such Lilly Third Party Claim are finally determined to have resulted from the
acts or omissions of a Lilly Indemnitee.
10.3 INDEMNIFICATION NOTICE AND DEFENSE PROCEDURES.
(a) Notice. Promptly after a Lilly Indemnitee or an Array
Indemnitee (each, an "Indemnitee") receive notice of a pending
or threatened Third Party Claim or Lilly Third Party Claim, as
the case may be (an "Action"), such Indemnitee shall give
written notice of the Action to the Party to whom the
Indemnitee is entitled to look for indemnification pursuant to
this Article 10 (the "Indemnifying Party"). However, an
Indemnitee's delay in providing or failure to provide such
notice
[ * ] = 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.
26
shall not relieve the Indemnifying Party of its
indemnification obligations, except to the extent it can
demonstrate prejudice due to the delay or lack of notice.
(b) Defense. The Indemnifying Party shall be entitled to
participate in and, if it so desires, to assume the defense of
an Action with counsel reasonably satisfactory to the
Indemnitee. Once the Indemnifying Party notifies the
Indemnitee of its election to assume the defense of an Action,
the Indemnifying Party is not liable to the Indemnitee for the
fees of other counsel or any other expenses subsequently
incurred by the Indemnitee in connection with such defense,
other than reasonable costs of investigation. However, the
Indemnitee shall have the right to employ separate counsel and
to participate in the defense of an Action (and the
Indemnifying Party shall bear the reasonable fees, costs, and
expenses of such separate counsel) if:
(i) the use of the counsel chosen by the Indemnifying
Party would present such counsel with a conflict of
interest;
(ii) the actual or potential defendants in, or targets of,
such Action include both the Indemnifying Party and
the Indemnitee, and the Indemnitee reasonably
concludes that there may be legal defenses available
to it that are different from or additional to those
available to the Indemnifying Party (in which case
the Indemnifying Party shall not have the right to
assume the defense of such Action on the Indemnitee's
behalf);
(iii) the Indemnifying Party does not employ counsel
satisfactory to the Indemnitee to represent the
Indemnitee within a reasonable time after the
Indemnitee's notice of such Action; or
(iv) the Indemnifying Party authorizes the Indemnitee to
employ separate counsel at the Indemnifying Party's
expense.
(c) Settlement. If an Indemnifying Party assumes the defense of an
Action, no compromise or settlement of such Action may be
effected by the Indemnifying Party without the Indemnitee's
written consent (which consent shall not be unreasonably
withheld or delayed), unless (i) there is no finding or
admission of any violation of law or any violation of the
rights of any person and no effect on any other claims that
may be made against the Indemnitee and (ii) the sole relief
provided is monetary damages that are paid in full by the
Indemnifying Party.
ARTICLE 11
MISCELLANEOUS
11.1 FURTHER ASSURANCES. Each Party agrees to execute, acknowledge and
deliver such further instruments, and to do all such other acts, as may be
necessary or appropriate in order to carry out the purposes and intent of this
Agreement.
[ * ] = 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.
27
11.2 NO AGENCY; INDEPENDENT CONTRACTOR. It is understood and agreed
that nothing in this Agreement shall be construed as authorization for either
Array or Lilly to act as agent for the other. Lilly shall not incur any
liability for any act or failure to act by employees of Array, and Array shall
not incur any liability for any act or failure to act by employees of Lilly.
Array shall perform all of its services under this Agreement as an independent
contractor, and nothing herein shall be construed as creating any other
relationship between the Parties, including, without limitation, a joint
venture, partnership, agency relationship or employment relationship. Neither
Array nor its employees or agents shall be deemed for any purpose to be
employees of Lilly nor participants in any programs, insurance, or other
benefits extended to Lilly's employees. Array has sole authority and
responsibility to hire, fire, supervise, and otherwise control its employees and
is solely responsible for all employee benefits, wages, and employment taxes of
its employees.
11.3 COMPLIANCE WITH LAWS. Array hereby covenants that its Project
Services and Other Services shall be carried out in compliance with all
applicable laws including, without limitation, federal, state, or local laws,
regulations, or guidelines governing the work at the site where such work is
being conducted. Array further covenants that its Project Services and Other
Services will be performed in accordance with current cGLP, cGCP, and cGMP, as
applicable.
11.4 COMPLIANCE WITH WORK PLAN AND LILLY PROTOCOLS AND SPECIFICATIONS.
Except as otherwise required by law, Array covenants that Project Services and
Other Services shall be conducted in compliance with the applicable Work Plan,
as well as with applicable Lilly protocols and/or specifications of which Array
is reasonably advised.
11.5 INSURANCE. Array has obtained and shall maintain insurance
coverage covering risks associated with its business in such amounts as are
customary in the industry including, without limitation, covering liabilities
that may arise due to injuries to its employees or the negligent performance of
Project Services and Other Services hereunder.
11.6 AMENDMENT. This Agreement may not be amended, supplemented, or
otherwise modified except by an instrument signed by the Parties.
11.7 NOTICES AND REPORTS. All notices required by this Agreement shall
be in writing. All notices and reports shall be deemed given if delivered
personally or by registered or certified mail, return receipt requested and
postage prepaid or sent by express courier service, to the Parties at the
following addresses or such other addresses as may be designated in writing by
the respective Parties:
To Lilly: ▇▇▇ ▇▇▇▇▇ and Company
Lilly ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
To Array: Array BioPharma, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
[ * ] = 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.
28
11.8 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Indiana, excluding any
choice of law rules which may direct the application of the law of any other
jurisdiction.
11.9 ASSIGNMENT. Array may not assign its rights and obligations under
this Agreement without Lilly's prior written consent. This Agreement shall be
binding upon and shall inure to the benefit of the successors and permitted
assigns of the Parties.
11.10 HEADINGS. The captions or headings of the articles, sections, and
other subdivisions hereof are inserted only as a matter of convenience or for
reference and shall have no effect on the meaning of the provisions.
11.11 SEVERANCE OF CLAUSES. Should any provision of this Agreement be
determined by a court of competent jurisdiction to violate or contravene any
applicable law or policy, such provision will be severed or modified by the
court to the extent necessary to comply with the applicable law or policy, and
such modified provision and the remainder of the provisions hereof will continue
in full force and effect.
11.12 NO WAIVER. The waiver of a breach hereunder may be effected only
by a writing signed by the waiving Party and shall not constitute a waiver of
any other breach.
11.13 ENTIRE AGREEMENT. The Agreement constitutes the entire Agreement
of the Parties relating to the subject matter.
11.14 FORCE MAJEURE. Neither Party shall be liable to the other for
loss or damages or shall have any right to terminate this Agreement for any
default or delay attributable to any force majeure event, including but not
limited to acts of God, acts of government, war, fire, flood, earthquake,
strike, labor dispute and the like, if the Party affected shall give prompt
notice of any such cause to the other Party. The Party giving such notice shall
thereupon be excused from such of its obligations hereunder as it is thereby
disabled from performing for so long as it is so disabled and for sixty (60)
days thereafter; provided, however, that such affected Party commences and
continues to take reasonable and diligent actions to cure such cause.
11.15 COUNTERPARTS. This Agreement may be executed in one or more
counterparts; each of which shall constitute an original, but which together
shall constitute the same instrument.
11.16 NO LICENSES. Except as specifically provided for in this
Agreement, neither Party grants, expressed or implied, any license to the other
Party under this Agreement.
11.17 JOINTLY PREPARED. This Agreement has been prepared jointly and
shall not be strictly construed against either Party.
IN WITNESS WHEREOF, each Party, through its duly-authorized
representative, has executed this Agreement as of the Effective Date.
[ * ] = 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.
29
▇▇▇ ▇▇▇▇▇ AND COMPANY ARRAY BIOPHARMA, INC.
/s/ August ▇. ▇▇▇▇▇▇▇▇ 3/22/2000 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3/20/2000
--------------------------------- -------------------------------
August ▇. ▇▇▇▇▇▇▇▇, M.D. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President Chief Executive 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.
30
EXHIBIT A
PRESS RELEASE
[ * ]
[ * ] = 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.
31
CONFIDENTIAL
AMENDMENT NO. 1
TO
RESEARCH SERVICES AGREEMENT
THIS AMENDMENT NO. 1 TO RESEARCH SERVICES AGREEMENT (the "Amendment")
amends the Research Services Agreement, dated March 22, 2000 (the "Agreement"),
by and between ▇▇▇ Lilly and Company, Lilly ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("Lilly") and Array BioPharma, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Array") (together with Lilly and Array, the "Parties") and is made and entered
into by and between the Parties, pursuant to Section 11.6 of the Agreement,
effective as of July 19, 2000 (the "Amendment Effective Date").
Terms defined in the Agreement will have the same meaning in this
Amendment, unless specifically noted otherwise.
1. The following new sections are added to Article 5 of the Agreement:
"5.4 NON-SOLICITATION OF LILLY EMPLOYEES.
(a) Prohibition. Except as provided in Subsection (b) below, while the
[***] after the termination or expiration of the Agreement, Array
agrees that it will not, directly or indirectly, (i) solicit or
recruit for employment, (ii) offer to employ, or (iii) employ any
Lilly employee.
(b) Exceptions. Array may offer to employ a Lilly employee who approaches
Array for the purpose of employment: (i) on his or her own initiative;
or (ii) as a result of Array's use of a general solicitation (such as
an advertisement) not specifically directed to Lilly employees.
5.5 NON-SOLICITATION OF ARRAY EMPLOYEES.
(a) Prohibition. Except as provided in Subsection (b) below, while the
[***] after the termination or expiration of the Agreement, Lilly
agrees that it will not, directly or indirectly, (i) solicit or
recruit for employment, (ii) offer to employ, or (iii) employ any
Array employee.
(b) Exceptions. Lilly may offer to employ an Array employee who approaches
Lilly for the purpose of employment: (i) on his or her own initiative;
or (ii) as a result of Lilly's use of a general solicitation (such as
an advertisement) not specifically directed to Array employees.
***CONFIDENTIAL TREATMENT IS
REQUESTED FOR THE PORTIONS OF THIS
EXHIBIT WHICH WAS UNDERLINED,
MARKED BY BRACKETS ("[ ]"), AND/OR
OTHERWISE INDICATED.***
32
CONFIDENTIAL
2. Except as specifically amended herein, all other provisions of the
Agreement remain in full force and effect
IN WITNESS WHEREOF, each Party, through its duly-authorized representative,
has executed this Amendment as of the Amendment Effective Date.
▇▇▇ ▇▇▇▇▇ AND COMPANY ARRAY BIOPHARMA, INC.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- -------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, LRL Chief Executive Officer
Discovery Chemistry Research
2