EXHIBIT 10.33
[ * ] = Certain confidential
information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 24b-2 of the Securities Exchange
Act of 1934, as amended.
FIRST AMENDMENT TO DRUG DISCOVERY
AND DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DRUG
DISCOVERY AND DEVELOPMENT AGREEMENT (“Amendment”), effective as of
June 17, 2009 (the “ Amendment Date
”), is entered into by and between Celgene Corporation, a
Delaware corporation, having a principal place of business 86
Morris Avenue, Summit, NJ 07901 (“ Celgene ”),
and Array BioPharma Inc., a Delaware corporation, having
a principal place of business at 3200 Walnut Street,
Boulder, Colorado 80301 (“ Array ”).
Celgene and Array are sometimes referred to herein individually as
a “ Party ” and collectively as the “
Parties .” Capitalized terms used but not
defined herein have the meaning assigned to them in the Agreement
(as defined below).
WHEREAS, Celgene and Array entered into that certain Drug
Discovery and Development Agreement, effective as of
September 21, 2007 (the
“Agreement”);
WHEREAS, the Joint Research Committee has determined that
research activities with respect to one of the Targets under the
Discovery Program should be discontinued;
WHEREAS, the Parties, pursuant to Section 3.2.2 of
the Agreement, wish to substitute for such discontinued Target a
new molecular target that has been the subject of research efforts
at Array prior to the Amendment Date; and
WHEREAS, the Parties desire to amend the Agreement as set
forth below.
NOW, THEREFORE,
in consideration of the promises and
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1.
This Amendment hereby amends and
revises the Agreement to incorporate the terms and conditions set
forth in this Amendment. The relationship of the Parties
shall continue to be governed by the terms of the Agreement, as
amended.
2.
[ * ] shall cease to be a Target and is hereby deleted
from Schedules 1.38 and 2.2.3(c) to the
Agreement.
3.
[ * ] (the “Substitute Target”) is hereby
added as a substitute target for [ * ] , and Schedules
1.38 and 2.2.3(c) are hereby updated
accordingly.
4.
For purposes of clarity and pursuant
to Section 3.2.2(ii) of the Agreement, the Option Term
for the Substitute Target shall commence on the Amendment
Date.
5.
The Parties have established
Clinical Candidate Guidelines for the Substitute Target. Such
Clinical Candidate Guidelines may be amended upon mutual written
agreement of the Parties or subsequent Clinical Candidate
Guidelines for the Substitute Target may be
1
[ * ] = Certain confidential
information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 24b-2 of the Securities Exchange
Act of 1934, as amended.
agreed in writing by the Parties and
attached to the Agreement from time to time as appropriate pursuant
to Section 3.5.1 of the Agreement.
6.
For the avoidance of doubt and
pursuant to Section 3.7.3(a), Array shall use Diligent Efforts
during the Option Term to conduct and manage a Phase II clinical
trial of the Development Compound directed to the Substitute Target
only if the first IND for such Compound was filed in a division of
the FDA other than the cancer division, and Celgene has not
exercised the Celgene Product Option with respect to such
Development Compound (or terminated the Celgene Product Option with
respect to the Substitute Target), provided, however, that Array
has not commenced Initiation of two (2) other Phase II
clinical trials under the Agreement.
7.
In partial consideration of this
Amendment, Celgene shall pay to Array a fee of Four Million Five
Hundred Thousand Dollars ($4,500,000) within fifteen (15) days
following the Amendment Date.
8.
Section 6.2 of the Agreement is
hereby amended by adding, at the beginning of the first sentence
thereof, the phrase “Subject to Section 6.2.3
below,”
9.
The Agreement is hereby amended by
adding the following Section 6.2.3:
“6.2.3
If, on or before [ * ] ,
Array presents to the JRC any Compound which is directed to
the Substitute Target as a potential Development Compound
(a) that meets the Clinical Candidate Guidelines for such
Target or (b) that does not strictly meet the Clinical
Candidate Guidelines for such Target but, in accordance with
Section 3.5.
