EXHIBIT 99.1
AGREEMENT
FOR THE SUPPLY OF COMPOUNDS
This Agreement is entered into as of October 15th, 2001 by and between
PFIZER INC, a Delaware corporation, and its Affiliates, having a principal place
of business at 235 East 42nd Street, New York, NY 10017 ("Pfizer") and ARRAY
BIOPHARMA INC. with an address at 3200 Walnut Street, Boulder Colorado 80301
("Array").
WHEREAS, Pfizer is engaged in discovery, development and marketing of
pharmaceuticals for the treatment of human and animal diseases and is interested
in evaluating compounds which may be useful in this area;
WHEREAS, Array is in the business of selling compounds and building
blocks; and
WHEREAS, Pfizer wishes to purchase from Array and Array wishes to sell
to Pfizer, certain chemical compounds and building blocks ("Compounds"), for
animal and human pharmaceutical research and development, set forth in the list
("List") attached to and made part of this Agreement as Exhibit A, and amended
from time to time.
NOW, THEREFORE, the parties agree as follows:
1. Purchase and Sale.
1.1 Pfizer, from time to time, shall select and purchase Compounds
on a plate-by-plate basis from (a) the List (b) a computerized
listing available from Array; or (c) Array supplied structure
lists of new Compounds.
1.2 Array shall make a reasonable effort to supply each Compound
selected by Pfizer.
1.3 Subject to Section 2.3 below, Array grants Pfizer a
non-exclusive license, under applicable Array intellectual
property, to make and use all Compounds in animal and human
pharmaceutical research and development (including, using as a
starting material or intermediate in the synthesis of other
substances), in perpetuity, with no further obligations to
Array, financial or otherwise, provided Pfizer has purchased
the Compounds according to the terms and conditions set forth
in Section 2. Array hereby grants Pfizer the option to obtain
an exclusive license, with the right to grant sublicenses,
under applicable Array intellectual property, to make, use and
sell Compounds that Pfizer activates in accordance with
Article 2 below ("Active Compounds").
1.4 Pfizer shall not file, prosecute or maintain any patent
application or patent claiming a Compound unless Pfizer
designates such Compound as an Active Compound. Pfizer shall
have the right to seek and obtain patents on any Active
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Compounds and make disclosure required by law in such filings.
Array agrees to provide to Pfizer, all necessary information
upon Pfizer's request, to file, prosecute or maintain such
patents.
2. Nomination of Active Compounds.
2.1 Subject to Section 2.3 below, Pfizer may nominate a Compound
as an Active Compound by sending Array a written notice and a
one-time activation fee of [***] per Compound. Array will
thereupon either (a) advise Pfizer that such Compound cannot
be the subject of exclusive license under section 1.3 because
previous to Pfizer's nomination Array had granted a third
party Rights in such Compound, or (b) confirm that such
Compound is an Active Compound and provide Pfizer with the
synthetic protocols for it. Pfizer shall not be obligated to
make any further payment to Array with respects to its
exclusive license under section 1.3 for such Active Compound.
2.2 If Array confirms any Compound as an Active Compound, Array
shall not thereafter make available or sell, or to share
information specifically relating to such Active Compound to
any third party.
2.3 It is understood that Array is in the business of providing
combinatorial compound libraries to third parties, and except
as expressly provided herein, nothing herein shall prevent or
restrict Array from providing Compounds to third parties, or
from using the Compounds for any purposes. It is further
understood that Array may grant to third parties rights to
acquire licenses in the Compounds similar to those granted to
Pfizer hereunder; accordingly, Pfizer's right to designate any
particular Compound as an Active Compound, and Array's grant
of an exclusive license to Pfizer therefor, are limited to the
extent that Array has prior to designation of an Active
Compound granted a third party a license or other right with
respect to such a Compound.
2.4 This Agreement shall not restrict or encumber Pfizer from
making, using, or selling analogs or derivatives of a
Compound, so long as such analogs and derivatives are not
Compounds.
3. Purchase Price. (a) The price for any Compound purchased by Pfizer shall be
agreed upon by both parties and set forth in the compound quotation
("Quotation") attached to and made part of this Agreement from time to time as
Exhibit B; (b) Pfizer shall pay within [***] days of receipt of Array's invoice.
4. Shipping and Documentation.
4.1 Array shall process and ship each Compound selected by Pfizer
in accordance with Exhibit A.
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4.2 Array will send to Pfizer Compound quantities in accordance
with Exhibit A.
4.3 With each Compound, Array will supply to Pfizer information
regarding the Compound such as its structure, empirical
formula, molecular weight and other physical properties
regularly included in Array's reports.
4.4 Array shall be responsible, at its own expense, for supplying
vials, labels and shipping containers for all Compounds.
Pfizer shall be responsible, at Pfizer's expense, for insuring
all Compounds selected by Pfizer. Array shall be responsible,
at Pfizer's expense, for shipping all Compounds using either
Federal Express, Account number [***] or United Parcel Service
- Ground, Account number [***].
5. Liabilities and Responsibilities.
5.1 Pfizer and Array each represents to the other that it has
expertise and experience in the analysis, synthesis, safety,
use and handling of chemicals. Neither party shall be
obligated to provide the other assistance, information or
reimbursement with respect to any inspection, investigation or
adverse finding by any federal, state or local governmental
agency. Pfizer and Array each indemnifies and holds harmless
the other, including its officers, directors, employees,
affiliates and sublicensees, from any claim, suit, liability
or expense, including, reasonable attorneys fees that such
other party may face as a result of damage to property
including the environment and death or injury to persons,
including the other party's employees resulting from any
aspect of its direct or indirect use of the information or
Compounds furnished to it by the other party under this
Agreement.
5.2 Each party is an independent contractor and shall retain
complete control over and responsibility for its own
operations and employees. Nothing in this Agreement shall be
construed to constitute either party a partner, joint
venturer, agent or representative of the other. Neither party
shall have the right or authority to assume or create any
obligation on behalf of or in the name of the other, to accept
legal process for the other or to bind the other in any manner
whatever.
6. Confidentiality.
6.1 Array shall keep confidential any information specifically
relating to the purchase by Pfizer of Compounds and the
nomination by Pfizer of Compounds as Active Compounds, with
the same degree of care that Array uses with its own similar
confidential information. Once Array confirms a Compound as an
Active Compound, Array shall keep confidential any information
specifically relating to such Active Compound, with the same
degree of care that Array uses with its own similar
confidential information.
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6.2 Pfizer shall keep confidential any information relating to
Compounds not nominated by Pfizer as Active Compound, with the
same degree of care as it uses with its own confidential
information.
6.3 A party's non-disclosure obligations shall not apply to the
extent that such party can demonstrate that any information or
Compounds:
a. was in its possession or control before the
other party disclosed it to such party; or
b. is lawfully obtained from a third party
under no obligation of confidentiality to
the other party relative to it; or
c. becomes publicly available through no fault
of such party..
6.4 The provisions of this Section 6 to the contrary
notwithstanding, nothing in this Agreement shall be construed
as preventing Pfizer from seeking and obtaining patents on any
invention to which Pfizer believes itself to be entitled and
making all disclosures required by law in such filings.
6.5 All obligations of Pfizer under this provision shall terminate
five (5) years from the date of the Agreement first set forth.
7. Term, Extension and Termination.
7.1 Unless sooner terminated or extended as provided below, this
Agreement shall expire [***] years from the date of execution
by both parties. At least [***] before the end of the term,
Pfizer may extend this Agreement for [***] by giving written
notice to Array.
7.2 Either party may terminate this Agreement if the other party
fails in any material respect to perform or observe any term,
covenant or understanding contained in this Agreement, and
does not remedy such failure within [***] of being given
notice.
8. Notices. All notices shall be mailed via certified mail, return receipt
requested, sent by overnight courier, or facsimile transmitted, addressed as
follows, or to such other address as may be designated from time to time by
notice given in the manner provided in this Section:
If to Pfizer: PRESIDENT, STRATEGIC AND OPERATIONS
MANAGEMENT PFIZER INC
50 PEQUOT AVE
NEW LONDON, CT 06320
FAX: 860) 732-7029
with a copy to: ASSISTANT GENERAL COUNSEL, PGRD (ADDRESS
AS ABOVE)
FAX: 860) 732-7384
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If to Array: Array BioPharma Inc.
3200 Walnut Street
Boulder, CO 80301
Attention: David L. Snitman, Ph. D.
Facsimile: (303) 381-6697
With a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 9430-1050
Attention: Kennith A. Clark
Facsimile: (650) 493-6811
Notices shall be deemed given as of the date received.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
10. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective legal representatives, successors
and permitted assigns.
11. Headings. Paragraph headings are inserted in this Agreement for convenience
of reference only and do not form a part of this Agreement, and no construction
or inference shall be derived from them.
12. Entire Agreement. This Agreement and the instruments, documents and the
confidential disclosure agreement signed July 2001 set forth the entire
Agreement and understanding of the parties regarding the subject matter.
13. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. Third Party Beneficiaries. No person to this Agreement, including any
employee of any party to this Agreement, shall have or acquire any rights by
reason of this Agreement, nor shall any party have any obligations or
liabilities to such other person by reason of this Agreement.
15. Assignment and Successors. This Agreement may not be assigned by either
party, except that either party may assign this Agreement and its rights and
interests, in whole or in part, (i) to any of its Affiliates or (ii) with the
consent of the other party, which consent shall not be unreasonably withheld, to
any successor corporation resulting from any merger or consolidation with or
into such successor corporation.
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16. Affiliates. As used herein, the term "Affiliates" means (a) any company,
corporation, joint venture or business organization in which either party has a
fifty percent (50%) or greater interest in the ownership or control thereof; (b)
any company or corporation owning or controlling, directly or indirectly fifty
percent (50%) or more of the voting stock of either party; and (c) any company
or corporation owning fifty percent (50%) or more of whose stock is owned or
controlled by a company or corporation owning or controlling fifty percent (50%)
or more of the voting stock of either party.
17. Force Majeure. Neither Pfizer nor Array shall be liable for failure of or
delay in performing obligations set forth in this Agreement, and neither shall
be deemed in breach of its obligations, if such failure or delay is due to
natural disasters or any causes reasonably beyond the control of Pfizer or
Array.
18. Severability and Survival. If any provision of this Agreement is or becomes
invalid or is ruled invalid by any court of competent jurisdiction or is deemed
unenforceable, it is the intention of the parties that the remainder of the
Agreement shall not be affected.
IN WITNESS WHEREOF, The parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first written
above.
PFIZER INC ARRAY BIOPHARMA, INC.
By: /s/ Alan R. Proctor By: /s/ David L. Snitman
------------------------------------- -------------------------------
Name: Alan R. Proctor Name: David L. Snitman
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Title: Vice President Strategic Alliances Title: COO
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Date: Oct. 18, 2001 Date: 10/29/01
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cc: Pfizer Inc, Legal Division, New London, CT 06320
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EXHIBIT A
1. Purchase of Compounds.
(a) Designated Libraries:
<Table>
<Caption>
No. of Price Per
Library Selected Quantity Compound
Identification Compounds (umol/Compound) (US-$/cmpd)
-------------- --------- --------------- -----------
[***] [***]
[***] [***]
</Table>
2. Format, Quantity, Purity and Delivery of All Compounds.
(a) Compound format and Delivery:
Compounds will be made available for selection in [***],
suitable for high throughput screening, [***].
(b) Quantity:
Pfizer shall select either a maximum of [***] umol/Compound
per Library or a minimum of [***] umol/Compound per Library
(c) Purity:
On a plate basis the average purity of Compounds shall be at
least [***]%, with no Compounds being less then [***]% pure.
Chemical identity and overall purity of each Compound ([***])
WITH [***] compliance should be provided by Array with
analytical data on CD ROM. Pfizer shall have an opportunity to
review this analytical information prior to selecting each
Library. Pfizer shall have no obligation to incur any cost
for, or to accept any Compound for which these data are not
provided or which do not support structural confirmation or
which otherwise fail to meet the specifications set forth in
this exhibit, unless otherwise agreed by both Parties in
writing, provided also that such a defect will be reported by
Pfizer within 30 days from the receipt of non-conforming
Compounds, otherwise, such Compounds shall be deemed
satisfactory. Array 's liability for providing non-conforming
Compounds to either replacing it with a conforming Compound
or, at Pfizer's discretion, promptly refunding the purchase
price paid, if any, for non-conforming Compounds.
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