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EXHIBIT 10.7
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
ARRAY BIOPHARMA INC.
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TABLE OF CONTENTS
Page
RECITALS .......................................................................................1
SECTION 1. PURCHASE AND SALE......................................................................1
1.1 Authorization of Shares................................................................1
1.2 Sale and Purchase......................................................................1
SECTION 2. CLOSING................................................................................1
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................2
3.1 Organization, Good Standing and Qualification..........................................2
3.2 Capitalization.........................................................................2
3.3 Authorization..........................................................................3
3.4 Financial Statements...................................................................3
3.5 Liabilities............................................................................3
3.6 Changes................................................................................3
3.7 Material Contracts.....................................................................5
3.8 Obligations to Related Parties.........................................................5
3.9 Assets.................................................................................6
3.10 Intellectual Property..................................................................6
3.11 Compliance with Other Instruments......................................................7
3.12 Litigation.............................................................................7
3.13 Taxes..................................................................................7
3.14 Employees and Consultants..............................................................7
3.15 Employee Benefits Matters..............................................................8
3.16 Registration Rights....................................................................8
3.17 Governmental Approvals/Third Party Consents............................................8
3.18 Compliance with Laws...................................................................8
3.19 Environmental Matters..................................................................9
3.20 Offering Valid.........................................................................9
3.21 Accuracy of Information Furnished......................................................9
3.22 Insurance..............................................................................9
3.23 Investment Company Act.................................................................9
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASERS...........................................9
4.1 Requisite Power and Authority..........................................................9
4.2 Investment Representations............................................................10
4.3 Restrictive Legends...................................................................11
SECTION 5. CONDITIONS TO CLOSING.................................................................11
5.1 Conditions to Purchasers' Obligations at the First Closing............................11
5.2 Conditions to Obligations of the Company at First Closing.............................13
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SECTION 6. COVENANTS OF THE COMPANY FOR THE PERIOD FOLLOWING CLOSING.............................13
6.1 Use of Proceeds.......................................................................13
6.2 Maintenance of Corporate Status.......................................................14
6.3 Compliance with Governing Documents...................................................14
6.4 Compliance with Laws, Licenses and Permits; No Infringement...........................14
6.5 Discharge of Obligations..............................................................14
6.6 Maintenance of Properties.............................................................14
6.7 Maintenance of Proprietary Information................................................14
6.8 Compensation of Directors.............................................................15
6.9 Books and Records.....................................................................15
SECTION 7. MISCELLANEOUS.........................................................................15
7.1 Governing Law.........................................................................15
7.2 Survival..............................................................................15
7.3 Successors and Assigns................................................................15
7.4 Entire Agreement......................................................................15
7.5 Severability..........................................................................15
7.6 Amendment and Waiver..................................................................15
7.7 Delays or Omissions...................................................................16
7.8 Notices...............................................................................16
7.9 Expenses..............................................................................16
7.10 Indemnification by the Company........................................................16
7.11 Indemnification by the Purchasers.....................................................16
7.12 Titles and Subtitles..................................................................17
7.13 Counterparts..........................................................................17
7.14 Broker's Fees.........................................................................17
7.15 Arbitration...........................................................................17
7.16 Exculpation Among Purchasers..........................................................17
7.17 Pronouns..............................................................................18
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SERIES C PREFERRED STOCK PURCHASE AGREEMENT
ARRAY BIOPHARMA INC.
This Series C Preferred Stock Purchase Agreement (the "AGREEMENT") is
made and entered into as of the 31st day of August 2000, by and among ARRAY
BIOPHARMA INC., a Delaware corporation (the "COMPANY"), and each of the
"PURCHASERS" identified on the signature pages hereto.
RECITALS
A. The Company has authorized the issuance and sale of a total of
1,666,667 shares (the "SHARES") of Series C Preferred Stock of the Company, par
value $0.001 per share.
B. The Company desires to sell the Shares to Purchasers, and Purchasers
desire to purchase the Shares from the Company, pursuant to the terms and
conditions contained herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants, agreements,
conditions, representations, and warranties contained in this Agreement, the
Company and Purchasers hereby each agree as follows:
SECTION 1. PURCHASE AND SALE.
1.1 AUTHORIZATION OF SHARES. On or prior to the Closing (as defined in
Section 2 below), the Company shall have authorized (i) the sale and issuance to
Purchasers of the Shares; and (ii) such shares of Common Stock issuable upon
conversion of the Shares (the "CONVERSION SHARES"). The Shares and the
Conversion Shares shall have the rights, preferences, privileges and
restrictions set forth in the Amended and Restated Certificate of Incorporation
of the Company, in the form attached hereto as Exhibit A (the "AMENDED
Certificate").
1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof, at
the Closing (as defined in Section 2 below) the Company hereby agrees to issue
and sell to each Purchaser, severally and not jointly, and each Purchaser agrees
to purchase from the Company, severally and not jointly, the number of Shares
set forth opposite such Purchaser's name on Exhibit B hereto, at the purchase
price of $6.00 per Share.
SECTION 2. CLOSING.
The closing of the sale and purchase of the Shares under this Agreement
(the "CLOSING") shall take place at 9:00 a.m. on the date hereof, at the offices
of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
at such other time or place as the Company and Purchasers may mutually agree
(such date is hereinafter referred to as the "CLOSING DATE"). At the Closing,
subject to the terms and conditions hereof, the Company will deliver to the
Purchasers certificates representing the number of Shares to be purchased at the
Closing by each
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Purchaser as set forth opposite such Purchaser's name on Exhibit B, against
payment of the purchase price therefor by check or wire transfer made payable to
the order of the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth on the Disclosure Schedule attached hereto as
Exhibit C, the Company hereby represents and warrants to each Purchaser that is
purchasing the Shares as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Company has all requisite corporate power and
authority to own and operate its properties and assets, to execute and deliver
this Agreement, the Amendment No. 1 to Amended and Restated Investor Rights
Agreement in the form attached hereto as Exhibit D (the "AMENDED INVESTOR RIGHTS
AGREEMENT"), and the Amendment No. 2 to Amended and Restated Shareholders
Agreement in the form attached hereto as Exhibit E (the "AMENDED SHAREHOLDERS
AGREEMENT") (collectively with this Agreement and the Amended Certificate, the
"FINANCING DOCUMENTS"), to issue and sell the Shares and to carry out the
provisions of the Financing Documents, and to carry on its business as presently
conducted and as presently proposed to be conducted. The Company is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction in which the nature of its activities and of its properties (both
owned and leased) makes such qualification necessary, except for those
jurisdictions in which failure to do so would not have a material adverse effect
on the Company or its business. The Company does not own, directly or
indirectly, equity securities of any other corporation, limited partnership,
limited liability company or other similar entity. The Company is not a
participant in any joint venture, partnership or similar arrangement.
3.2 CAPITALIZATION. The authorized capital stock of the Company,
immediately prior to the Closing, will consist of (a) 20,225,000 shares of
Common Stock, 3,865,743 shares of which are issued and outstanding as of August
31, 2000, 4,837,500 shares of which are reserved for issuance to employees and
consultants pursuant to the Company's 1998 Stock Option Plan, as amended,
6,800,000 shares of which are reserved for issuance upon conversion of the
Series A Preferred Stock and warrants, 3,300,000 shares of which are reserved
for issuance upon conversion of the Series B Preferred Stock, 1,725,000 shares
of which are reserved for issuance upon conversion of the Series C Preferred
Stock; and (b) 11,825,000 shares of Preferred Stock, 6,800,000 shares of which
are designated Series A Preferred Stock, 6,635,000 shares of which are issued
and outstanding; 3,300,000 shares of which are designated Series B Preferred
Stock, 3,199,999 shares of which are issued and outstanding; and 1,725,000
shares of which are designated as Series C Preferred Stock, no shares of which
are issued and outstanding. All issued and outstanding shares of the Company's
Common Stock, Series A Preferred Stock and Series B Preferred Stock (i) have
been duly authorized and validly issued, (ii) are fully paid and nonassessable,
and (iii) were issued in compliance with all applicable state and federal laws
concerning the issuance of securities. The rights, preferences, privileges and
restrictions of the Shares are as stated in the Amended Certificate. The
Conversion Shares have been duly and validly reserved for issuance. Except as
may be granted pursuant to the Financing Documents, the Company's Preferred and
Common Stock Purchase Agreement dated May 18, 1998, as amended, the Company's
Series B Stock Purchase Agreement dated November 16, 1999, and the
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agreements referred therein, options granted pursuant to the Company's 1998
Stock Option Plan, and warrants granted pursuant to certain of the Company's
credit facilities, there are no outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal), proxy or
shareholders agreements, or agreements of any kind for the purchase or
acquisition from the Company of any of its securities. When issued in compliance
with the provisions of this Agreement and the Amended Certificate, and upon
receipt of the consideration therefor, the Shares and the Conversion Shares will
be validly issued, fully paid and nonassessable, and will be free of any liens
or encumbrances; provided, however, that the Shares and the Conversion Shares
may be subject to restrictions on transfer under state and federal securities
laws. A schedule describing the anticipated capitalization of the Company as of
the Closing is attached as Exhibit F hereto.
3.3 AUTHORIZATION. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization of the
Financing Documents, the performance of all obligations of the Company hereunder
and thereunder at the Closing, and the authorization, sale, issuance and
delivery of the Shares pursuant hereto and the Conversion Shares pursuant to the
Amended Certificate has been taken or will be taken prior to the Closing. The
Financing Documents, when executed and delivered, will be valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights; (ii) general principles of equity that
restrict the availability of equitable remedies; and (iii) to the extent that
the enforceability of the indemnification provisions in the Amended Investor
Rights Agreement may be limited by applicable laws. The sale of the Shares and
the subsequent conversion of the Shares into Conversion Shares are not and will
not be subject to any preemptive rights or rights of first refusal that have not
been properly waived or complied with.
3.4 FINANCIAL STATEMENTS. The Company's unaudited financial statements
for its fiscal year ended June 30, 2000, and its unaudited balance sheet (the
"BALANCE SHEET") as of July 31, 2000 (the "BALANCE SHEET Date"), and unaudited
statements of operations of the Company for the period from July 1, 2000 through
the Balance Sheet Date, made available to the Purchasers in connection with the
investment contemplated hereby (collectively, the "FINANCIAL STATEMENTS"),
fairly present in all material respects the financial position and the results
of operations of the Company for the period covered thereby.
3.5 LIABILITIES. The Company has no material liabilities and, to the
best of its knowledge, the Company knows of no material contingent liabilities
not disclosed in the Balance Sheet, except current liabilities incurred in the
ordinary course of business subsequent to the Balance Sheet Date which have not
been, either in any individual case or in the aggregate, materially adverse.
3.6 CHANGES. Since the Balance Sheet Date, and excluding the
transactions contemplated by the Financing Documents, there has not been:
(a) Any change in the assets, liabilities, financial condition
or operations of the Company from that reflected in the Financial Statements,
other than changes in the ordinary
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course of business, none of which individually or in the aggregate has had or is
expected to have a material adverse effect on such assets, liabilities,
financial condition or operations of the Company;
(b) Any resignation or termination of any key officers of the
Company; and the Company, to the best of its knowledge, does not know of the
impending resignation or termination of employment of any such officer;
(c) Any material change, except in the ordinary course of
business, in the contingent obligations of the Company by way of guaranty,
endorsement, indemnity, warranty or otherwise;
(d) Any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties, business or
prospects or financial condition of the Company;
(e) Any waiver by the Company of a valuable right or of a
material debt owed to it;
(f) Any direct or indirect loans made by the Company to any
stockholder, employee, officer or director of the Company, other than advances
made in the ordinary course of business;
(g) Any material change in any compensation arrangement or
agreement with any employee, officer, director or stockholder of the Company;
(h) Any declaration or payment of any dividend or other
distribution of the assets of the
Company;
(i) Any labor organization activity;
(j) Any debt, obligation or liability incurred, assumed or
guaranteed by the Company, except those for immaterial amounts and for current
liabilities incurred in the ordinary course of business;
(k) Any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets
or other intangible assets of the Company;
(1) Any change in any material agreement to which the Company
is a party or by which it is bound that materially and adversely affects the
business, assets, liabilities, financial condition, operations or prospects of
the Company, including compensation agreements with the Company's employees; or
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(m) Any other event or condition of any character that, either
individually or cumulatively, has materially and adversely affected the
business, assets, liabilities, financial condition, operations or prospects of
the Company.
3.7 MATERIAL CONTRACTS.
(a) Except as set forth on Item 3.7(a) of the Disclosure
Schedule, the Company has no, and is not bound by, any contract, agreement,
lease, commitment, or proposed transaction, judgment, order, writ or decree,
written or oral, absolute or contingent, other than (i) contracts for the
purchase of supplies and services that were entered into in the ordinary course
of business and that do not involve more than $20,000, and do not extend for
more than one year beyond the date hereof; (ii) sales contracts entered into in
the ordinary course of business; and (iii) contracts terminable at will by the
Company on no more than 30 days' notice without cost or liability to the Company
and that do not involve any employment or consulting arrangement and are not
material to the conduct of the Company's business. For the purpose of this
paragraph, employment and consulting contracts and contracts with labor unions,
and license agreements and any other agreements relating to the Company's
acquisition or disposition of patent, copyright, trade secret or other
proprietary rights or technology (other than standard end-user license
agreements) shall not be considered to be contracts entered into in the ordinary
course of business. Every contract disclosed on Item 3.7(a) of the Disclosure
Schedule (collectively, the "MATERIAL CONTRACTS") is a legal, valid and binding
obligation, enforceable in accordance with its terms with respect to the Company
and any other parties bound thereby, and true and complete copies of all
Material Contracts have been provided to Purchasers. The Company has not been
given notice that any other party is currently in breach of any of the terms of
any Material Contract. There is no default or event that, with notice or lapse
of time, or both, would conflict with or constitute a breach of any Material
Contract or would result in the creation or imposition of any lien or
encumbrance on the Company, or any of the Company's property. The Company has
not received notice that any party to any Material Contract intends to cancel,
amend or terminate any such agreement.
(b) Except as set forth on Item 3.7(b) of the Disclosure
Schedule, the Company has not engaged in the past three months in any discussion
(i) with any representative of any corporation or corporations regarding the
consolidation or merger of the Company with or into any such corporation or
corporations; (ii) with any corporation, partnership, association or other
business entity or any individual regarding the sale, conveyance or disposition
of all or substantially all of the assets of the Company, or a transaction or
series of related transactions in which more than 50% of the voting power of the
Company is or was to be disposed; or (iii) regarding any other form of
acquisition, liquidation, dissolution or winding up of the Company.
3.8 OBLIGATIONS TO RELATED PARTIES. There are no obligations of the
Company to officers, directors, stockholders, or employees of the Company other
than (i) for payment of salary for services rendered since the commencement of
the Company's most recent payroll period; (ii) reimbursement for reasonable
expenses incurred on behalf of the Company; and (iii) for other standard
employee benefits made generally available to all employees (including stock
option agreements outstanding under any stock option plan approved by the Board
of Directors of the Company). Except as set forth on Item 3.8 of the Disclosure
Schedule, none of the
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officers, directors or stockholders of the Company, or any members of their
immediate families, are indebted to the Company or have any direct or indirect
ownership interest in any firm or corporation with which the Company is
affiliated or with which the Company has a business relationship, or any firm or
corporation which competes with the Company, except that officers, directors
and/or stockholders of the Company may own stock in publicly traded companies
which may compete with the Company. No officer, director or stockholder, or any
member of their immediate families, is, directly or indirectly, interested in
any material contract with the Company (other than such contracts as relate to
any such person's ownership of capital stock or other securities of the
Company). Except as may be disclosed in the Financial Statements, the Company is
not a guarantor or indemnitor of any indebtedness of any other person, firm or
corporation.
3.9 ASSETS; REAL PROPERTY. The Company has good title to all of its
personal property, including all assets reflected on the balance sheets included
in the Financial Statements or acquired by the Company since the Balance Sheet
Date, all of which are in good operating condition and free and clear of
material restrictions on or conditions to transfer or assignment, and free and
clear of all liens, claims, mortgages, pledges, charges, equities, easements,
rights of way, covenants, conditions, security interests, encumbrances, or
restrictions, except for liens for current taxes or materialmen not yet due and
payable or being contested in good faith and as set forth on Item 3.9 of the
Disclosure Schedule. The Company does not own any real property. Set forth on
Item 3.9 of the Disclosure Schedule is a correct and complete list (including
the amount of annual rents called for and a summary description of the leased
property) of all leases under which the Company is a lessee. The properties and
leases listed on Item 3.9 of the Disclosure Schedule are sufficient for the
conduct of the Company's business as now being and presently planned to be
conducted. The Company holds a valid leasehold interest in all leases listed on
Item 3.9 of the Disclosure Schedule, free of any liens, claims, or encumbrances
granted by the Company, except for those described in the first sentence of this
Section 3.9, and is not in default under any such lease. The Company enjoys
peaceful and undisturbed possession of all premises leased to it from others,
and does not occupy any real property in material violation of any law,
regulations, or decree.
3.10 INTELLECTUAL PROPERTY. The Company owns or possesses sufficient
legal rights to all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information and other proprietary rights and processes necessary
for its business as now conducted and as currently proposed to be conducted,
without any known infringement of the rights of others. There are no outstanding
options, licenses or agreements of any kind relating to the foregoing, nor is
the Company bound by or a party to any options, licenses or agreements of any
kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information and other proprietary rights
and processes of any other person or entity other than such licenses or
agreements arising from the purchase of "off the shelf" or standard products.
The Company has received no communication alleging that the Company has violated
or, by conducting its business as proposed, would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity. The Company is not aware that
any of its employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with his or
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her duties to the Company or that would conflict with the Company's business as
currently proposed to be conducted. Neither the execution nor delivery of this
Agreement, nor the carrying on of the Company's business by the employees of the
Company, nor the conduct of the Company's business as proposed, will, to the
Company's knowledge, conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any employee is now obligated.
3.11 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation
or default of any term of its Amended Certificate or Bylaws, or of any provision
of any mortgage, indenture, contract, agreement, instrument or contract to which
it is party or by which it is bound or of any judgment, decree, order, writ or,
to its knowledge, any statute, rule or regulation applicable to the Company
which would materially and adversely affect the business, assets, liabilities,
financial condition, operations or prospects of the Company. The execution,
delivery, and performance of and compliance with the Financing Documents, and
the issuance and sale of the Shares pursuant hereto and of the Conversion Shares
pursuant to the Amended Certificate, will not, with or without the passage of
time or giving of notice, result in any such material violation, or be in
conflict with or constitute a default under any such term, or result in the
creation of any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of the Company or the suspension, revocation, impairment,
forfeiture or nonrenewal of any permit license, authorization or approval
applicable to the Company, its business or operations or any of its assets or
properties.
3.12 LITIGATION. There are no actions, suits, or legal, administrative,
or other proceedings or investigations pending or, to the best of the Company's
knowledge, threatened before any court, agency, or other tribunal to which the
Company is a party or against or affecting any of the property, assets,
businesses, or financial condition of the Company. The Company is not in default
with respect to any order, writ, injunction, or decree of any federal, state,
local or foreign court, department, agency, or instrumentality to which it is a
party.
3.13 TAXES. The Company has timely filed all federal, state, county,
local and foreign tax returns and reports within the times and in the manner
prescribed by law and has paid (or made adequate provision in the Financial
Statements for) all taxes shown due on such returns, as well as all other
assessments and penalties which have become due and payable. The Company's
federal income and other tax returns have not been audited by the Internal
Revenue Service or any other taxing authority and no notice of audit has been
received. The Company has received no notice of any disputes, deficiency
assessments, or proposed adjustments to taxes payable by the Company.
3.14 EMPLOYEES AND CONSULTANTS. Except as set forth on Item 3.14 of the
Disclosure Schedule, the Company has not entered into any arrangement with any
present or former employee that will result in any obligation of the Company to
make any payment to such employee upon termination of his or her employment with
the Company. Item 3.14 of the Disclosure Schedule lists all key executive
officers of the Company with whom the Company has entered into an employment
agreement. True and complete copies of all written employment agreements with
the key executive officers of the Company listed on Item 3.14 of the Disclosure
Schedule have been made available to Purchasers prior to the Closing Date. To
the Company's
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knowledge, no employee of or consultant to the Company is in material violation
of any term of any employment contract or any other contract or agreement
relating to the relationship of any such employee or consultant with the
Company. The Company has not received notice that any executive officer intends
to terminate his employment with the Company, nor does the Company have any
present intention to terminate the employment of any executive officer. To the
Company's knowledge, none of its employees are obligated under any contract
(including licenses, covenants, or commitments of any nature) or other
agreement, or subject to any judgment, decree, or order of any court or
administrative agency, that would interfere with the use of his/her reasonable
diligence to promote the interests of the Company or that would conflict with
the Company's business as proposed to be conducted. Neither the execution nor
delivery of this Agreement, nor the carrying on of the Company's business by the
employees of the Company, nor the conduct of the Company's business as proposed,
will, to the Company's knowledge, conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any contract,
covenant, or instrument under which any of such employees is obligated, which
conflict, breach, or default would be materially adverse to the Company.
3.15 EMPLOYEE BENEFITS MATTERS. The Company does not maintain or
contribute to any plan or arrangement that constitutes an "employee pension
benefit plan" as defined in Section 3(2) of ERISA except as set forth on Item
3.15, and is not obligated to contribute to or accrue or pay benefits under any
deferred compensation or retirement funding arrangement.
3.16 REGISTRATION RIGHTS. Except as required pursuant to the Amended
Investor Rights Agreement, the Company is presently not under any obligation,
and has not granted any rights, to register any of the Company's presently
outstanding securities or any of its securities that may hereafter be issued.
3.17 GOVERNMENTAL APPROVALS/THIRD PARTY CONSENTS. All consents,
approvals, or authorizations of, or registrations, qualifications, designations,
declarations, or filings with any federal or state governmental authority, and
all consents, approvals or authorizations of any third party required in
connection with the execution of the Financing Documents and the performance of
the transactions contemplated thereby (including the issuance and sale of the
Shares) have been obtained by the Company. The Company has, or has rights to
acquire, all licenses, permits, and other similar authority necessary for the
conduct of its business as now being conducted by it and as planned to be
conducted, the lack of which could materially and adversely affect the
operations or condition, financial or otherwise, of the Company, and it is not
in default in any material respect under any of such licenses, permits or other
similar authority.
3.18 COMPLIANCE WITH LAWS. The Company (a) has complied with and is in
compliance in all material respects with all foreign, federal, state and local
statutes, laws, ordinances, regulations, rules, judgments, orders and decrees
applicable to it and its assets, business and operations, and (b) has received
no written notice of any claim of default under or violation of any statute,
law, ordinance, regulation, rule, judgment, order or decree except for any such
noncompliance or claim of default or violation, if any, which in the aggregate
do not and will not have a material adverse effect the property, operations,
financial condition or prospects of the Company.
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3.19 ENVIRONMENTAL MATTERS. The Company is in compliance in all
material respects with all environmental and occupational health and safety laws
and, to its knowledge, except as set forth on Item 3.19 of the Disclosure
Schedule, no material expenditures are or will be required in order to comply
with any such laws.
3.20 OFFERING VALID. Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4 hereof, the offer, sale and
issuance of the Shares and the Conversion Shares will be exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT") and will have been registered or qualified, or are exempt from
registration and qualification, under the registration, permit or qualification
requirements of all applicable state securities laws.
3.21 ACCURACY OF INFORMATION FURNISHED. The Financing Documents, as
well as any exhibit, certificate, written statement, material or information
furnished to the Purchasers by or on behalf of the Company pursuant thereto or
in connection with the transactions contemplated thereby, do not contain any
untrue statement of a material fact or omit to state any material fact that is
necessary to make the statements contained herein or therein not misleading.
3.22 INSURANCE. The Company has obtained fire and casualty insurance
policies with coverage customary for companies similarly situated to the
Company.
3.23 INVESTMENT COMPANY ACT. The Company is not an "investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASERS.
Each Purchaser makes the following representations and warranties to
the Company as to itself that:
4.1. REQUISITE POWER AND AUTHORITY. Purchaser is an individual, or a
corporation, limited liability company, or limited partnership duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation, and has all requisite limited liability company, partnership or
corporate power and authority to own its assets and operate its business.
Purchaser has all necessary corporate, limited liability company or partnership
power and authority under all applicable provisions of law to execute and
deliver each of the Financing Documents to which it is a party and to carry out
their provisions. All action on Purchaser's part required for the lawful
execution and delivery of the Financing Documents have been or will be
effectively taken prior to each Closing Date. Upon their execution and delivery,
the Financing Documents will be valid and binding obligations of Purchaser,
enforceable in accordance with their terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights; (ii) general principles
of equity that restrict the availability of equitable remedies; and (iii) to the
extent that the enforceability of the indemnification provisions of the Amended
Investor Rights Agreement may be limited by applicable laws.
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4.2. INVESTMENT REPRESENTATIONS. Purchaser understands that the Shares
have not been registered under the Securities Act. Purchaser also understands
that the Shares are being offered and sold pursuant to an exemption from
registration contained in the Securities Act based in part upon Purchaser's
representations contained in this Agreement. Purchaser hereby represents and
warrants as follows:
(a) PURCHASER BEARS ECONOMIC RISK. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Purchaser must bear the economic risk of
this investment indefinitely unless the Shares are registered pursuant to the
Securities Act, or an exemption from registration is available. Purchaser
understands that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if available, such
exemption may not allow Purchaser to transfer all or any portion of the Shares
under the circumstances, in the amounts or at the times Purchaser might propose.
(b) ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the
Shares for Purchaser's own account for investment purposes only, and not with a
view towards their distribution.
(c) PURCHASER CAN PROTECT ITS INTEREST. Purchaser represents
that by reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transactions contemplated in the Financing Documents.
(d) ACCREDITED INVESTOR. Purchaser represents that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(e) COMPANY INFORMATION. Purchaser has received and read the
Financial Statements and has had an opportunity to ask questions of, and receive
answers from, directors, officers and management of the Company relating to the
Company's business, management and financial affairs and to the terms and
conditions of this investment, and has had the opportunity to review the
Company's operations and facilities.
(f) RULE 144. Purchaser acknowledges and agrees that the
Shares must be held indefinitely unless they are subsequently registered under
the Securities Act or an exemption from such registration is available.
Purchaser has been advised or is aware of the provisions of Rule 144 promulgated
under the Securities Act, which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including,
among other things: the availability of certain current public information about
the Company, the resale occurring not less than one year after a party has
purchased and paid for the security to be sold, the sale being through an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Act) and the number of
shares being sold during any three-month period not exceeding specified
limitations.
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(g) RESIDENCE. The residence of Purchaser (if an individual),
or the office or offices of the Purchaser in which its investment decision was
made is located at the address or addresses of the Purchaser as stated in the
Company's shareholder records.
4.3 RESTRICTIVE LEGENDS. Purchaser agrees to the imprinting, so long as
required by law, of a legend on certificates representing all of the Shares or
the Conversion Stock to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT
OR SUCH LAWS.
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AMENDED
AND RESTATED SHAREHOLDERS AGREEMENT DATED AS OF NOVEMBER 19, 1999, AS MAY BE
AMENDED FROM TIME TO TIME, AND SAID SHARES MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE
TERMS OF SUCH AGREEMENT. SUCH AGREEMENT MAY BE EXAMINED AT THE PRINCIPAL PLACE
OF BUSINESS OF THE COMP ANY AND A COPY THEREOF WILL BE FURNISHED WITHOUT CHARGE
TO THE HOLDER OF THIS CERTIFICATE UPON RECEIPT BY THE COMPANY AT ITS PRINCIPAL
PLACE OF BUSINESS OR REGISTERED OFFICE OF A WRITTEN REQUEST FROM THE
SHAREHOLDER."
SECTION 5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING. Purchasers'
obligations to purchase the Shares at the Closing are subject to the
satisfaction, at or prior to the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Section 3
hereof shall be true and correct in all material respects as of the Closing Date
with the same force and effect as if they had been made as of the Closing Date,
and the Company shall have performed all obligations and conditions herein
required to be performed or observed by it on or prior to the Closing.
(b) LEGAL INVESTMENT. On the Closing Date, the sale and
issuance of the Shares, and the proposed issuance of the Conversion Shares,
shall be legally permitted by all laws and regulations to which Purchasers and
the Company are subject.
(c) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the
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transactions contemplated by the Financing Documents (except for such as may be
properly obtained subsequent to the Closing).
(d) FILING OF AMENDED CERTIFICATE. The Amended Certificate
shall have been filed with the Secretary of State of the State of Delaware.
(e) CORPORATE DOCUMENTS. The Company shall have delivered to
Purchasers or their counsel, copies of all corporate documents of the Company as
Purchasers shall reasonably request.
(f) RESERVATION OF CONVERSION SHARES. The Conversion Shares
issuable upon conversion of the Shares shall have been duly authorized and
reserved for issuance upon such conversion.
(g) CERTIFICATES. The Company shall have delivered to
Purchasers:
(1) proof of filing of the Amended Certificate, and a
certificate, as of the most recent practical date, of the Secretary of State of
Delaware as to the Company's good standing;
(2) a certificate of the Secretary of the Company
dated as of the Closing Date, certifying as to (i) the incumbency of the
officers of the Company executing the Financing Agreements and all other
documents executed and delivered in connection therewith; (ii) a copy of the
Amended Certificate, in effect as of the Closing Date; (iii) a copy of the
Bylaws of the Company, in effect as of the Closing Date; and (iv) a copy of the
resolutions or consents of the Board of Directors and stockholders of the
Company authorizing and approving the Company's execution, delivery and
performance of the Financing Agreements; and
(3) a certificate, executed by the Chief Executive
Officer of the Company as of the Closing Date, certifying to the fulfillment of
all of the conditions of the Purchasers' obligations under this Agreement, as
set forth in this Section 5.
(h) AMENDED INVESTOR RIGHTS AGREEMENT. The Amended Investor
Rights Agreement shall have been executed and delivered by the parties thereto.
(i) AMENDED SHAREHOLDERS AGREEMENT. The Amended Shareholders
Agreement shall have been executed and delivered by the parties thereto.
(j) LEGAL OPINION. The Purchasers shall have received from
legal counsel to the Company an opinion addressed to them, dated as of the
Closing Date, in substantially the form attached hereto as Exhibit ------- G.
(k) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
hereby and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form
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to the Purchasers and their special counsel, and the Purchasers and their
special counsel shall have received all such counterpart originals or certified
or other copies of such documents as they may reasonably request.
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY AT CLOSING. The Company's
obligation to issue and sell the Shares at the Closing is subject to the
satisfaction, on or prior to the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties made by Purchasers in Section 4 hereof shall be true and correct
in all material respects at the Closing Date, with the same force and effect as
if they had been made on and as of said date.
(b) PERFORMANCE OF OBLIGATIONS. Purchasers shall have
performed and complied with all agreements and conditions herein required to be
performed or complied with by Purchasers on or before the Closing.
(c) FILING OF AMENDED CERTIFICATE. The Amended Certificate
shall have been filed with the Secretary of State of the State of Delaware.
(d) AMENDED INVESTOR RIGHTS AGREEMENT. The Amended Investor
Rights Agreement shall have been executed and delivered by the Purchasers.
(e) AMENDED SHAREHOLDERS AGREEMENT. The Amended Shareholders
Agreement shall have been executed and delivered by the Purchasers.
(f) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Financing Documents (except
for such as may be properly obtained subsequent to the Closing).
(g) MINIMUM INVESTMENT. The Purchasers shall purchase at least
1,666,667 Shares in the aggregate at the Closing.
SECTION 6. COVENANTS OF THE COMPANY FOR THE PERIOD FOLLOWING CLOSING.
Until the date upon which all Shares held by Purchasers (including any
capital stock of the Company issued upon conversion of the Shares) are no longer
outstanding, the Company covenants to each Purchaser and agrees as follows:
6.1 USE OF PROCEEDS. The Company shall use all proceeds from the sale
of the Shares to Purchasers pursuant to this Agreement for financing of
expenditures related to product
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development, equipment and facilities expansion, funding ongoing operating costs
and general working capital.
6.2 MAINTENANCE OF CORPORATE STATUS. The Company shall maintain, and
shall cause each affiliate to maintain, its corporate or partnership existence
in good standing or effective under the laws of its jurisdiction of organization
and any other states or jurisdictions in which its failure to qualify as a
foreign corporation or entity would have a material adverse effect on its
operations or financial condition.
6.3 COMPLIANCE WITH GOVERNING DOCUMENTS. The Company shall comply, and
shall cause each affiliate to comply, in all material respects with its Amended
Certificate, Bylaws or other governing documents.
6.4 COMPLIANCE WITH LAWS, LICENSES AND PERMITS; NO INFRINGEMENT. The
Company shall comply with all applicable federal, state, local, foreign and
other laws, regulations and ordinances, and with all applicable federal, state,
local and foreign governmental licenses and permits necessary for conducting its
business, except to the extent that any noncompliance would not have a material
adverse effect upon the Company. The Company shall not knowingly engage in any
activities that infringe upon the intellectual property rights of any other
person, corporation, partnership or other entity which could have a material
adverse effect upon the Company.
6.5 DISCHARGE OF OBLIGATIONS. The Company shall pay and discharge all
taxes, assessments, and governmental charges lawfully levied or imposed upon it
(in each case before they become delinquent and before penalties accrue), all
lawful claims for labor, materials, supplies and rents, and all other debts and
liabilities that if unpaid would by law be a lien or charge upon any of the
asserts or properties of the Company or lead to suspension of the business of
the Company (except to the extent contested in good faith by the Company and for
which adequate reserves are established).
6.6 MAINTENANCE OF PROPERTIES. The Company shall maintain all real and
personal property used in the business of the Company in good operating
condition, and shall make all repairs, renewals, replacements, additions and
improvements to those properties as are necessary or appropriate in the ordinary
course of business.
6.7 MAINTENANCE OF PROPRIETARY INFORMATION. The Company shall maintain
all proprietary information, and all applications and registrations therefor
owned or held by the Company, in full force and effect, except as otherwise
determined in the ordinary course of business. The Company shall not encumber or
license others to use its proprietary information owned by it except in the
ordinary course of the Company's business, and shall maintain the
confidentiality and trade secret status of all proprietary information that is
confidential except contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
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6.8 COMPENSATION OF DIRECTORS. Each member of the Board of Directors
shall be entitled to (a) customary liability insurance obtained at commercially
reasonable rates, and (b) reimbursement by the Company for all out-of-pocket
expenses, including, without limitation, travel expenses, incurred by such
director in connection with the performance of such directors duties, subject to
approval by the Board of Directors, such approval not be unreasonably withheld.
6.9 BOOKS AND RECORDS. The Company shall, and shall cause each
affiliate to, keep proper books of records and accounts, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Company and each affiliate, in accordance with generally
accepted accounting principles in effect from time to time. The Company shall
provide Purchasers with access to all such books and records and allow
Purchasers to make copies and abstracts thereof at reasonable times.
SECTION 7. MISCELLANEOUS.
7.1 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Colorado as such laws are applied to agreements between Colorado
residents entered into and performed entirely in Colorado, except that the
Delaware General Corporation Law will govern as to matters of corporate law.
7.2 SURVIVAL. The representations, warranties, covenants and agreement
made herein shall survive any investigation made by any Purchaser and the
closing of the transactions contemplated hereby. All statements as to factual
matters contained in any certificate or other instrument delivered by or on
behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
7.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
7.4 ENTIRE AGREEMENT. The Financing Documents, the Exhibits and
Schedules hereto, and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with regard
to the subjects hereof and no party shall be liable or bound to any other in any
manner by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
7.5 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
7.6 AMENDMENT AND WAIVER. This Agreement may be amended or modified
only upon the written consent of the Company, and the holders representing at
least two-thirds of the
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Shares (treated as if converted and including any Conversion Shares into which
the Shares have been converted that have not been sold).
7.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under any of the Financing Documents,
shall impair any such right, power or remedy, nor shall it be construed to be a
waiver of any such breach, default or noncompliance, or any acquiescence
therein, or of or in any similar breach, default or noncompliance thereafter
occurring. It is further agreed that any waiver, permit, consent or approval of
any kind or character of any breach, default or noncompliance under any of the
Financing Documents or any waiver of any provisions or conditions of any of the
Financing Documents must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies under any of the Financing
Documents, under any law or otherwise afforded to any party, shall be cumulative
and not alternative.
7.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when sent by confirmed facsimile if sent during
normal business hours of the recipient, if not, then on the next business day;
(iii) three (3) business days after having been sent by registered or certified
mail, return receipt requested, postage prepaid; or (iv) one (1) day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be sent
to the Company at its principal place of business and to Purchasers at the
addresses set forth in the shareholder records of the Company or at such other
address as the Company or Purchaser may designate by ten (10) days advance
written notice to the other parties hereto.
7.9 EXPENSES. The Company hereby agrees to reimburse each Purchaser for
its out-of-pocket expenses incurred in connection with the transactions
contemplated hereby, including all expenses incurred in connection with its due
diligence examination of the Company, the preparation and negotiation of the
Financing Documents, including the reasonable fees and expenses of special
counsel to the Purchasers, (▇▇▇▇▇▇ ▇▇▇▇▇▇ WHITE & ▇▇▇▇▇▇▇▇▇) and in connection
with the enforcement of rights and remedies of the Purchasers hereunder and
under the Amended Shareholders Agreement and all other documents evidencing the
transactions contemplated herein.
7.10 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold each Purchaser harmless against any loss, liability, damage or expense
(including reasonable legal fees and costs) which such Purchasers may suffer,
sustain or become subject to as a result of or in connection with the breach by
the Company of any representation, warranty, covenant or agreement of the
Company contained in the Financing Documents.
7.11 INDEMNIFICATION BY THE PURCHASERS. Each Purchaser, severally and
not jointly, agrees to indemnify and hold the Company harmless against any loss,
liability, damage or expense (including reasonable legal fees and costs) which
the Company may suffer, sustain or become subject to as a result of or in
connection with the breach by such Purchaser of any
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representation, warranty, covenant or agreement of such Purchaser contained in
the Financing Documents.
7.12 TITLES AND SUBTITLES. The titles of the sections and subsections
of the Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.13 COUNTERPARTS. This Agreement may be delivered via facsimile and
may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.
7.14 BROKER'S FEES. Each party hereto represents and warrants that no
agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein. Each party hereto further agrees to
indemnify each other party for any claims, losses or expenses incurred by such
other party as a result of the representation in this Section 7.14 being untrue.
7.15 ARBITRATION. The parties hereby covenant and agree that any legal
suit, dispute, claim, demand, controversy or cause of action of every kind and
nature whatsoever, known or unknown, fixed or contingent, that any party may now
have or at any time in the future claim to have based in whole or in part, or
arising from or out of or that in any way is related to the negotiations,
execution, interpretation or enforcement of this Agreement (collectively, the
"DISPUTES") shall be completely and finally settled by submission of any such
Disputes to arbitration under the rules of the American Arbitration Association
("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall
be chosen by mutual agreement of the parties in accordance with AAA rules.
Unless the parties agree otherwise, the arbitration proceedings shall take place
in the Denver, Colorado metropolitan area. The arbitrator shall apply Colorado
law to all issues in dispute, except issues with respect to corporate law in
which case the arbitrator shall apply Delaware law, in accordance with Section
7.1 above. Notice of demand for arbitration shall be filed in writing with the
other party to this Agreement and with the AAA. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such Dispute would be barred by the applicable statute of
limitations. The findings of the arbitrator shall be final and binding on the
parties. Judgment on such award may be entered in any court of competent
jurisdiction, or application may be made to that court for a judicial acceptance
of the award and an order or enforcement, as the party seeking to enforce that
award may elect. The prevailing party in any such action shall be entitled to
receive from the losing party all reasonable costs and expenses, including the
reasonable fees of attorneys, accountants, and other experts, incurred by the
prevailing party in investigating and prosecuting (or defending) such action,
together with any such fees which may be incurred in enforcing any award of
judgment.
7.16 EXCULPATION AMONG PURCHASERS. Each Purchaser acknowledges that it
is not relying upon any person, firm, or corporation, other than the Company and
its officers and directors, in making its investment or decision to invest in
the Company.
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Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable for any action heretofore or hereafter taken or
omitted to be taken by any of them in connection with the Shares and Conversion
Shares.
7.17 PRONOUNS. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as the identity of the parties hereto may require.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above first written.
COMPANY:
ARRAY BIOPHARMA INC. PURCHASERS:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ HEALTHCARE II, L.P.
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: General Partner
--------------------------
ARCH VENTURE FUND III, L.P.
By: Arch Venture Partners, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Managing Director
--------------------------
ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, its General
Partner
By: Advent International
Corporation,
its General Partner
By: /s/ ▇▇▇▇▇ FISHERMAN
-----------------------------
Name: ▇▇▇▇▇ Fisherman
---------------------------
Title: Vice President
--------------------------
MITSUI & CO. (U.S.A.), INC.
By: /s/ YOUICHIRO ENDO
-----------------------------
Name: Youichiro Endo
---------------------------
Title: General Manager
--------------------------
FALCON TECHNOLOGY PARTNERS, L.P.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
General Partner
23
BOULDER VENTURES II, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, General Partner
BOULDER VENTURES II, (ANNEX) L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, General Partner
THE ▇▇▇▇▇▇▇▇▇ FAMILY, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D., Manager
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, PH.D.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, PH.D.
/s/ ▇.▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
▇.▇. ▇▇▇▇▇▇▇▇, PH.D.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
24
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
VECTOR LATER-STAGE EQUITY FUND II, L.P.
By: Vector Fund Management II, L.L.C., its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Managing Director
---------------------------------------
VECTOR LATER-STAGE EQUITY FUND II (Q.P.), L.P.
By: Vector Fund Management II, L.L.C., its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Managing Director
---------------------------------------
MOSAIX VENTURES, LP
By: Mosaix Ventures Management, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇▇▇, Managing Partner
25
EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
26
State of Delaware PAGE 1
Office of the Secretary of State
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"ARRAY BIOPHARMA INC.", FILED IN THIS OFFICE ON THE THIRTY-FIRST DAY OF AUGUST,
A.D. 2000, AT 11:30 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
[SEAL] -----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary of State
2856233 8100 AUTHENTICATION: 0650953
001441765 DATE: 08-31-00
▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
DEPARTMENT OF CORPORATIONS
FILED 11.30 AM 08/31/2000
001441765 - 2856233
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
ARRAY BIOPHARMA INC.
(PURSUANT TO SECTIONS 242 AND 245)
Array BioPharma Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows for the purpose of amending and
restating its Certificate of Incorporation:
1. The Corporation was originally incorporated under the same name, and the
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on February 6, 1998.
2. The Board of Directors of the Corporation duly adopted resolutions
containing provisions of this Amended and Restated Certificate of Incorporation
of the Corporation, declaring such amendment and restatement to be advisable and
called for the approval of the stockholders of the Corporation to such amendment
and restatement in accordance with Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
3. That the holders of at least 66 2/3% of the outstanding shares of the
Corporation's Series A Preferred Stock voting as a single class, 66 2/3% of the
outstanding shares of the Corporation's Series B Preferred Stock voting as a
single class and 50% of the outstanding shares of the Corporation's Common Stock
and Preferred Stock voting as a single class, in each case acting by means of
written consent in lieu of a meeting pursuant to Section 228(a) of the General
Corporation Law of the State of Delaware, adopted and approved this Amended and
Restated Certificate of Incorporation in accordance with Sections 242 and 245 of
the General Corporation Law of the State of Delaware.
4. That the text of the Corporation's Certificate of Incorporation as
heretofore amended and supplemented is hereby further amended and restated in
its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is Array BioPharma Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of its registered office in the State of Delaware is ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, in the City of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. The name
of its registered agent at such address is The Corporation Trust Company.
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ARTICLE III
NATURE OF BUSINESS
The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activities for which corporations may be
organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
CAPITAL; SHAREHOLDERS
4.1 Authorized Capital. The aggregate number of shares that the Corporation
shall have authority to issue is 20,225,000 shares of common stock, each having
a par value of $0.001 (the "Common Stock"), and 11,825,000 shares of preferred
stock, each having a par value of $0.001, 6,800,000 shares of which shall be
designated as Series A Preferred Stock, 3,300,000 shares of which shall be
designated as Series B Preferred Stock and 1,725,000 shares of which shall be
designated as Series C Preferred Stock. The Series A Preferred Stock, Series B
Preferred Stock and the Series C Preferred Stock is sometimes collectively
referred to herein as the "Preferred Stock."
4.2 Relative Rights and Preferences. The designations, preferences and
rights of the shares of each class of stock which the Corporation is authorized
to issue, and the limitations thereof, are as set forth in the following
provisions of this Section 4.2:
(a) Common Stock.
(i) General. The dividend and liquidation rights of the holders
of the Common Stock are junior to, subject to and qualified by the
rights of the holders of the Preferred Stock.
(ii) Dividends. Dividends may be declared and paid on the Common
Stock from funds lawfully available therefor as and when determined by
the Board of Directors, subject to any preferential dividend rights of
any then-outstanding Preferred Stock.
(iii) Liquidation. In the event of any liquidation, dissolution
or winding-up of the Corporation, whether voluntary or involuntary,
the holders of the Common Stock shall be entitled, out of the assets
of the Corporation available for distribution to its shareholders,
subject to any preferential rights of any then-outstanding Preferred
Stock, to share ratably among themselves in proportion to the
respective amounts that would otherwise be payable in respect of the
shares
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held by them upon such distribution if all amounts payable on or with
respect to such shares were paid in full.
(iv) Voting. Each holder of Common Stock of record shall have one
vote for each share of stock outstanding in his name and on the books
of the Corporation except that, in the election of directors, he shall
have the right to vote each such share for as many persons as there
are directors to be elected. Cumulative voting shall not be allowed in
the election of directors or for any other purpose.
(b) Series Preferred Stock. The designations, dividend rights, voting
powers, rights on liquidation and other preferences and relative,
participating, optional or other special rights and the
qualifications, limitations or restrictions of the shares of the
series of Preferred Stock shall be as follows:
(i) Certain Definitions. Unless the context otherwise requires,
for purposes of Section 4.2(b), the terms defined in this Section
4.2(b)(i) shall have the meanings herein specified (with terms defined
in the singular having comparable meanings when used in the plural).
"Common Stock" shall mean the common stock, $0.001 par value
per share, of the Corporation.
"Disposition Proceeds" shall have the meaning set forth in
Section 4.2(b)(iii)(C).
"Equivalent Common Dividend" shall have the meaning set
forth in Section 4.2(b)(ii).
"Liquidation Preferences" shall have the meaning set forth
in Section 4.2(b)(iii)(C).
"Mandatory Conversion Date" shall have the meaning set forth
in Section 4.2(b)(iv)(B).
"Preferred Stock" shall mean any authorized series of
preferred stock of the Corporation, including, without limitation, the
Series A Preferred Stock, the Series B Preferred Stock and the Series
C Preferred Stock.
"Qualifying IPO" shall mean an underwritten public offering
pursuant to an effective registration statement under the Securities
Act of 1933 of shares of Common Stock, at a price per share of at
least $8.00, and the aggregate
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gross proceeds of which equal or exceed $20,000,000 (before
underwriting discounts and commissions).
"Required Consent" shall mean (i) the affirmative vote of
the holders of at least 66 2/3% of the outstanding shares of Preferred
Stock or a series of such Preferred Stock, as the case may be, taken
at a duly called meeting of the holders of such Preferred Stock or
series of such Preferred Stock; or (ii) the written consent of the
holders of at least 66 2/3% of the outstanding shares of Preferred
Stock or a series of such Preferred Stock, as the case may be.
"Series A Initial Purchase Price" shall mean $1.00 per share
(adjusted for stock dividends, stock splits, reverse stock splits,
combinations and the like).
"Series A Liquidation Preference" shall have the meaning set
forth in Section 4.2(b)(iii)(C).
"Series A Preferred Stock" shall mean the Series A Preferred
Stock, $0.001 par value per share, of the Corporation.
"Series B Initial Purchase Price" shall mean $2.50 per share
(adjusted for stock dividends, stock splits, reverse stock splits,
combinations and the like).
"Series B Liquidation Preference" shall have the meaning set
forth in Section 4.2(b)(iii)(C).
"Series B Preferred Stock" shall mean the Series B Preferred
Stock, $0.001 par value per share, of the Corporation.
"Series C Initial Purchase Price" shall mean $6.00 per share
(adjusted for stock dividends, stock splits, reverse stock splits,
combinations and the like).
"Series C Liquidation Preference" shall have the meaning set
forth in Section 4.2(b)(iii)(C).
"Series C Preferred Stock" shall mean the Series C Preferred
Stock, $0.001 par value per share, of the Corporation.
"Subordinate Stock" shall mean any class or series of
capital stock of the Corporation, however designated, which is junior
in right to the Preferred Stock, including without limitation the
Common Stock and any other capital stock
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of the Corporation that is not entitled to receive (i) any dividends
unless all dividends required to have been paid or declared and set
apart for payment on the Preferred Stock shall have been so paid or
declared and set apart for payment; or (ii) any assets upon
liquidation, dissolution or winding up of the affairs of the
Corporation until the Preferred Stock shall have received the entire
amount to which such stock is entitled upon such liquidation,
dissolution or winding up.
(ii) Dividends. If at any time during which any shares of Series
A Preferred Stock, Series B Preferred Stock or Series C Preferred
Stock remain outstanding the Corporation declares, pays or sets apart
for payment any dividend on the Common Stock, whether in cash,
property or otherwise, each holder of shares of Series A Preferred
Stock, Series B Preferred Stock or Series C Preferred Stock shall be
entitled to receive the equivalent per share dividend (an "Equivalent
Common Dividend"), when and as declared by the Corporation, based on
the number of shares of Common Stock into which each share of
Preferred Stock is convertible on the record date. For any Equivalent
Common Dividend that is not paid in full when due, then on such due
date such accrued and unpaid Equivalent Common Dividend shall be added
to the Liquidation Preference of the Preferred Stock effective at such
due date when such Equivalent Common Dividend was not paid. If any
accrued and unpaid Equivalent Common Dividend is so added to the
Liquidation Preference, such Liquidation Preference shall be reduced,
effective on the date of payment, to the extent any accrued and unpaid
Equivalent Common Dividend is subsequently paid.
(iii) Distributions Upon Liquidation, Dissolution or Winding Up.
(A) The Corporation shall deliver to each holder of
Preferred Stock notice of any Disposition (as defined in Section
4.2(b)(iii)(B)) at least 90 days prior to such event, which
notice shall state all material facts and common terms relating
to such Disposition, including, without limitation, (1) the
nature of such Disposition, including, without limitation, the
amount, terms and conditions of payment to the holders of the
Preferred Stock and the holders of Common Stock in connection
with such Disposition; (2) the date on which such Disposition
shall occur; and (3) the procedures that must be followed (and
the latest date that such procedures must be completed) in order
for such holder to effect a conversion of shares of Preferred
Stock into shares of Common Stock, if such a conversion is so
desired.
(B) The following events shall be considered a "Disposition"
under this Section:
(1) any consolidation or merger of the Corporation with
or into any other corporation or other entity or person, or
any other
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corporate reorganization, in which the stockholders of the
Corporation immediately prior to such consolidation, merger
or reorganization, own less than 50% of the Corporation's
voting power immediately after such consolidation, merger or
reorganization, or any transaction or series of related
transactions in which in excess of 50% of the Corporation's
voting power is transferred;
(2) a sale, lease or other disposition of all or
substantially all of the assets of the Corporation; or
(3) any voluntary or involuntary liquidation,
dissolution or other winding up of the affairs of the
Corporation.
(C) In the event of any such Disposition, before any payment
or distribution shall be made to the holders of the Common Stock,
the holders of Preferred Stock shall be entitled to be paid out
of the Disposition Proceeds in cash, or, if the Corporation does
not have sufficient cash on hand to pay such amounts, property of
the Corporation at its fair market value as determined by the
Board of Directors, an amount (the "Series A Liquidation
Preference", the "Series B Liquidation Preference" and the
"Series C Liquidation Preference") equal to either the Series A
Initial Purchase Price, the Series B Initial Purchase Price or
the Series C Initial Purchase Price, as appropriate, plus any
accrued but unpaid dividends. If upon any such Disposition, the
remaining assets of the Corporation available for distribution to
its shareholders shall be insufficient to pay the holders of the
Preferred Stock the full amount of their respective Liquidation
Preferences, the holders of the Preferred Stock shall share
ratably among themselves in any distribution of the remaining
assets and funds of the Corporation in proportion to the
respective amounts that would otherwise be payable in respect of
the shares held by them upon such distribution if all amounts
payable on or with respect to such shares were paid in full.
(iv) Conversion Rights.
(A) Conversion at the Option of the Holder. The holders of
the Preferred Stock shall have the right, at their option, to
convert shares of Preferred Stock into shares of Common Stock of
the Corporation at any time and from time to time on the
following terms and conditions:
(1) Each share of Preferred Stock shall be converted at
the option of the holder thereof, without the payment of
additional
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consideration, into such number of fully paid and
nonassessable shares of Common Stock as is determined by
dividing the Series A Initial Purchase Price, the Series B
Initial Purchase Price or the Series C Initial Purchase
Price, as applicable, by the Series A Conversion Rate, the
Series B Conversion Rate or the Series C Conversion Rate,
respectively, in effect at the time of conversion. For
purposes of this section, the "Series A Conversion Rate",
the "Series B Conversion Rate" and the "Series C Conversion
Rate" shall initially shall be equal to the Series A Initial
Purchase Price, Series B Initial Purchase Price and the
Series C Initial Purchase Price, respectively, and shall
each be subject to adjustment as provided in Section
4.2(b)(iv)(C)(2) below.
(2) The Corporation shall not issue, in connection with
the conversion of shares of Preferred Stock, certificates
for fractional shares, but in lieu thereof shall pay to any
person who would otherwise be entitled thereto an amount of
cash equal to such fraction multiplied by the fair value of
one share of Common Stock, as determined by the Board of
Directors, whose determination shall be conclusive.
(3) In order for any holder of shares of Preferred
Stock to convert the same into Common Stock, he shall
surrender the certificate or certificates therefor, duly
endorsed, at the office of the Corporation and shall give
written notice to the Corporation that he elects to convert
all or part of the shares represented by the certificate or
certificates and shall state in writing therein the name or
names in which he wishes the certificate or certificates for
Common Stock to be issued. The Corporation shall, as soon as
practicable thereafter, issue and deliver to such holder of
shares of Preferred Stock, or to his nominee or nominees,
certificates for the full number of shares of Common Stock
to which he shall be entitled as aforesaid. Shares of
Preferred Stock shall be deemed to have been converted as of
the date of the surrender of such shares for conversion as
provided above, and the person or persons entitled to
receive Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of
such Common Stock on such date.
(4) If a holder converts shares of Preferred Stock, the
Corporation shall pay any documentary , stamp or similar
issue or transfer tax due on the issue of shares of Common
Stock upon the conversion; provided, however, that the
holder shall pay any such
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tax that is due because the shares are issued in a name
other than the holder's name pursuant to Section
4.2(b)(iv)(A)(3).
(B) Mandatory Conversion. Subject to the adjustments set
forth in Section 4.2(b)(iv)(C), each share of Preferred Stock
shall be converted automatically into shares of the Corporation's
Common Stock at the Series A Conversion Rate, Series B Conversion
Rate or Series C Conversion Rate, as applicable, on the date a
Qualifying IPO is consummated (the "Mandatory Conversion Date").
At least 60 days prior to the Mandatory Conversion Date, the
Corporation shall (1) notify all holders of the Preferred Stock
of such event; (2) demand that all shares representing the
Preferred Stock be returned to the Corporation's offices or to
the designated transfer agent; and (3) pay any transfer or
similar tax with respect to the conversion, if any. As soon as
practical but in any event within 30 days after the Mandatory
Conversion Date, the Corporation shall deliver a certificate to
and in the name of the holder of the Preferred Stock for the
number of shares of Common Stock issuable upon the conversion and
a check in an amount calculated in accordance with Section
4.2(b)(iv)(A)(2) for any fractional shares, if any, for the
shares of Preferred Stock represented by the certificate. The
name of the person in which the Preferred Stock was issued shall
be treated as the stockholder of record of the Common Stock in
which the Preferred Stock was converted on and after the
Mandatory Conversion Date. Adjustment (or cash payment, if
applicable) shall be made for accrued and previously declared and
unpaid dividends, as of the Mandatory Conversion Date, on shares
of Preferred Stock converted pursuant to this Section
4.2(b)(iv)(B). Upon such conversion, the rights of the holders of
Preferred Stock with respect to the shares of Preferred Stock so
converted shall cease.
(C) Certain Matters With Respect to Conversion.
(1) The Corporation has reserved and shall continue to
reserve out of its authorized but unissued Common Stock or
its Common Stock held in treasury enough shares of Common
Stock to permit the conversion of the Preferred Stock in
full. All shares of Common Stock that may be issued upon
conversion of Preferred Stock shall be duly authorized,
validly issued, fully paid and nonassessable.
(2) The Series A Conversion Rate, Series B Conversion
Rate and Series C Conversion Rate shall be subject to
adjustment as follows:
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(a) In case the Corporation shall (i) pay a dividend or
make a distribution on its Common Stock in shares of Common
Stock of the Corporation, (ii) subdivide or split its
outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, the Series A
Conversion Rate, Series B Conversion Rate and Series C
Conversion Rate following the effective date of such event
shall be equal to the product of the Series A Conversion
Rate, Series B Conversion Rate or Series C Conversion Rate,
respectively, in effect immediately prior to such adjustment
multiplied by a fraction, the denominator of which is the
number of shares of Common Stock outstanding immediately
after such event and the numerator of which is the number of
shares outstanding immediately prior to such event.
(b) In the event the Corporation at any time or from
time to time shall make or issue, or fix a record date for
the determination of holders of Common Stock entitled to
receive a dividend or other distribution payable in
securities of the Corporation other than shares of Common
Stock, then and in each such event provision shall be made
so that the holders of Preferred Stock shall receive upon
conversion thereof in addition to the number of shares of
Common Stock receivable thereupon, the amount of securities
of the Corporation that they each would have received had
the Preferred Stock been converted into Common Stock on the
date of such event and had they each thereafter, during the
period from the date of such event to and including the
conversion date, retained such securities receivable by them
as aforesaid during such period, giving application to all
adjustments called for during such period under this section
with respect to the rights of the holders of Preferred
Stock; provided, however, that no such adjustment shall be
made if the holders of Preferred Stock simultaneously
receive a dividend or other distribution of such securities
as they would have received if all outstanding shares of
Preferred Stock had been converted into Common Stock on the
date of such event.
(c) If Common Stock issuable upon the conversion of
Preferred Stock shall be changed into the same or a
different number of shares of any class or classes of stock,
whether by capital reorganization, reclassification, or
otherwise (other than a subdivision or combination of shares
or stock dividend provided for above, or a reorganization,
merger, consolidation, or sale of assets provided for
below), then and in each such event the holder of each such
share of Preferred Stock shall have the right thereafter
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to convert such share into the kind and amount of shares of
stock and other securities and property receivable upon such
reorganization, reclassification, or other change, by
holders of the number of shares of Common Stock into which
such share of Preferred Stock might have been converted
immediately prior to such reorganization, reclassification,
or change, all subject to further adjustment as provided
herein.
(d) Adjustments to the Series A Conversion Rate, Series
B Conversion Rate and Series C Conversion Rate shall also be
made for certain dilutive issuances of additional shares of
capital stock by the Corporation as set forth in this
Section 4.2(b)(iv)(C)(2)(d).
(i) Special Definitions. For purposes of this Section
4.2(b)(iv)(C)(2)(d), the following definitions
shall apply:
(A) "Option" means rights, options, warrants or
other securities convertible into or exchangeable
or exercisable for shares of Common Stock or
Preferred Stock.
(B) "Additional Shares of Stock" (i) with respect
to the Series A Preferred Stock, all shares of
Common Stock or Preferred Stock issued by the
Corporation after the date that shares of Series A
Preferred Stock are first issued by the
Corporation (the "Series A Initial Issue Date")
for which the consideration per share (determined
pursuant to Section 4.2(b)(iv)(C)(2)(d)(iii)) is
less than the Series A Conversion Rate in effect
on the date of, and immediately prior to, the
issuance of such Additional Shares of Stock; (ii)
with respect to the Series B Preferred Stock, all
shares of Common Stock or Preferred Stock issued
by the Corporation after the date that shares of
Series B Preferred Stock are first issued by the
Corporation (the "Series B Initial Issue Date")
for which the consideration per share (determined
pursuant to Section 4.2(b)(iv)(C)(2)(d)(iii)) is
less than the Series B Conversion Rate in effect
on the date of, and immediately prior to, the
issuance of such Additional Shares of Stock;
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(iii) with respect to the Series C Preferred
Stock, all shares of Common Stock or Preferred
Stock issued by the Corporation after the date
that shares of Series C Preferred Stock are first
issued by the Corporation (the "Series C Initial
Issue Date") for which the consideration per share
(determined pursuant to Section
4.2(b)(iv)(C)(2)(d)(iii)) is less than the Series
C Conversion Rate in effect on the date of, and
immediately prior to, the issuance of such
Additional Shares of Stock, provided, however that
in the case of any series of Preferred Stock, not
including any shares of Common Stock or Preferred
Stock issued or issuable:
(I) upon exercise of any Options outstanding
on the Series C Initial Issue Date; provided,
however that if the Corporation, after the
Series C Initial Issue Date, amends the
exercise price or the number of shares
covered by any Options outstanding on the
Series C Initial Issue Date, then such
Options, as so amended, shall be deemed to
have been issued after the Series C Initial
Issue Date;
(II) by reason of a dividend, stock split,
split-up or other distribution on shares of
Common Stock that is covered by Section
4.2(b)(iv)(C)(2)(b) or (c) above;
(III) upon exercise of Options granted to
employees or directors of, or consultants to,
the Corporation pursuant to a valid option
plan adopted by the Corporation;
(IV) to employees or directors of, or
consultants to, the Corporation pursuant to a
valid stock purchase plan adopted by the
Corporation; or
(V) upon exercise of warrants or other
securities convertible into Common or
Preferred Stock issued in connection with a
credit facility, but not to exceed an
aggregate
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of $200,000 in value (as determined by the
exercise price) in any six month period.
(ii) Adjustment of Conversion Rates Upon Issuance of
Additional Shares of Stock. In the event the
Corporation shall at any time issue Additional
Shares of Stock with respect to the Series A
Preferred Stock, the Series B Preferred Stock or
the Series C Preferred Stock, then and in such
event, such Series A Conversion Rate, Series B
Conversion Rate or Series C Conversion Rate, as
applicable, shall be reduced, concurrently with
such issuance, to a price (calculated to the
nearest cent) determined by multiplying the Series
A Conversion Rate, the Series B Conversion Rate or
Series C Conversion Rate, as applicable, then in
effect by a fraction:
(A) the numerator of which shall be (1) the number
of shares of Common Stock outstanding immediately
prior to such issue plus (2) the number of shares
of Common Stock which the aggregate consideration
received or to be received by the Corporation for
the total number of Additional Shares of Stock so
issued would purchase at such Series A Conversion
Rate, Series B Conversion Rate or Series C
Conversion Rate, as applicable; and
(B) the denominator of which shall be the number
of shares of Common Stock outstanding immediately
prior to such issue plus the number of such
Additional Shares of Stock so issued.
(iii) Determination of Consideration. For purposes of
this Section 4.2(b)(iv)(C)(3)(d)(iii), the
consideration received by the Corporation for the
issue of any Additional Shares of Stock shall be
computed as follows:
(A) in case of the issuance of shares of Common
Stock for cash, the consideration shall be the
amount of such cash, provided that in no case
shall any deduction be made for any commissions,
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discounts or other expenses incurred by the
Corporation for any underwriting of the issue or
otherwise in connection therewith;
(B) in the case of the issuance of shares of
Common Stock for a consideration in whole or in
part other than cash, the consideration other than
cash shall be deemed to be the fair market value
thereof as determined by the Board of Directors of
the Corporation in its reasonable judgment
exercised in good faith (irrespective of the
accounting treatment thereof); and
(C) in the case of the issuance of Options, the
aggregate consideration received therefor shall be
deemed to be the consideration received by the
Corporation for the issuance of such Options plus
the additional minimum consideration, if any, to
be received by the Corporation upon the conversion
or exchange or exercise thereof (the consideration
in each case to be determined in the same manner
as provided in clauses (i) and (ii) of this
Section).
(3) Whenever the number of shares of Common Stock into which
any share of Preferred Stock is convertible is adjusted, the
Corporation shall promptly mail to holders of the affected
Preferred Stock, first class, postage prepaid, a notice of
the adjustment. The Corporation shall file with the transfer
agent, if any, for the Preferred Stock a certificate from
the Corporation's independent public accountants briefly
stating the facts requiring the adjustment and the manner of
computing it. Subject to Section 4.2(b)(iv)(C)(9) below, the
certificate shall be conclusive evidence that the adjustment
is correct.
(4) The adjustments herein provided for shall be made
successively when the event giving rise to such adjustment
occurs and shall become effective immediately following the
record date for any event for which a record date is
designated and on the effective date for any other event.
(5) Shares of Preferred Stock that have been converted as
provided herein shall revert to the status of authorized but
unissued shares of Preferred Stock.
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(6) For purposes of any computation of the number of shares
of Common Stock outstanding, such computation shall be made
assuming conversion of all then outstanding shares of
Preferred Stock and all outstanding currently exercisable
warrants and vested options.
(7) No adjustment in the number of shares of Common Stock
into which each share of Preferred Stock is convertible need
be made unless the adjustment would require an increase of
at least one-half of one percent (.5%) in the number of
shares of Common Stock into which each share of Preferred
Stock is convertible. Any adjustments that are not made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section
4.2(b)(iv)(C) shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be.
(8) In any case in which this Section 4.2(b)(iv)(C) shall
require that an adjustment as a result of any event become
effective from and after a record date, the Corporation may
elect to defer until after the occurrence of such event (a)
the issuance to the holder of any shares of Preferred Stock
converted after such record date and before the occurrence
of such event of the additional shares of Common Stock
issuable upon such conversion over and above the shares
issuable immediately prior to adjustment; and (b ) the
delivery of a check for any remaining fractional shares as
provided in Section 4.2(b)(iv)(A)(2) above.
(9) Except as provided in the immediately following
sentence, any determination that the Corporation or its
Board of Directors must make pursuant to this Section
4.2(b)(iv)(C) shall be conclusive. Whenever the Corporation
or its Board of Directors shall be required to make a
determination under this Section 4.2(b)(iv)(C), such
determination shall be made in good faith and may be
challenged in good faith by the holders of a majority of the
affected Series A Preferred Stock, Series B Preferred Stock
and/or Series C Preferred Stock, as applicable, and any
dispute shall be resolved promptly (and in no event later
than 90 days after any challenge), at the Corporation's
expense, by an investment banking firm of recognized
national standing selected by the Corporation and acceptable
to such holders of Series A Preferred Stock, Series B
Preferred Stock and/or Series C Preferred Stock, as
applicable. Any such determination shall be deemed approved
if the requisite holders have not notified the Corporation
of any challenge within
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30 days after receiving notice (including a statement in
reasonable detail of the bases therefor) of such
determination.
(v) Voting Rights.
(A) Except as otherwise set forth in this Section 4.2(b)(v)
or as otherwise required by law, each share of Preferred Stock
issued and outstanding shall have the right to vote on all
matters presented to the holders of the Common Stock for vote in
the number of votes equal at any time to the number of shares of
Common Stock into which each share of Preferred Stock would then
be convertible, and the holders of the Preferred Stock shall vote
with the holders of the Common Stock as a single class.
(B) In addition to any vote or consent of shareholders or
directors required by law or this Amended and Restated
Certificate of Incorporation, so long as any originally issued
Series A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock remains outstanding, the Required Consent of the
holders of the Series A Preferred Stock, Series B Preferred Stock
and/or Series C Preferred Stock shall be necessary for effecting,
validating or permitting:
(1) any amendment, alteration or repeal of any of the
provisions of the Corporation's Amended and Restated
Certificate of Incorporation or the Bylaws affecting the
rights, powers and preferences of the Series A Preferred
Stock, Series B Preferred Stock or Series C Preferred Stock,
as applicable, provided, however that the Required Consent
for this subparagraph (1) shall be of the holders of Series
A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock, voting as separate classes and only if such
series is affected; or
(2) any consolidation or merger of the Corporation with
or into any other corporation, or any other corporate
reorganization, in which the stockholders of the Corporation
immediately prior to such consolidation, merger or
reorganization, own less than 50% of the Corporation's
voting power immediately after such consolidation, merger or
reorganization; any transaction or series of related
transactions in which excess of 50% of the Corporation's
voting power is transferred; any reclassification or
recapitalization of any capital stock of the Corporation;
any dissolution, liquidation, or winding up of the
Corporation; or any sale of more than 50% of the assets of
the Corporation, or any agreement to become so obligated;
provided, however that the Required Consent for this
subparagraph (2) shall be of the holders
15
42
of Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock, voting together as a single class.
(C) The rights of the holders of the Preferred Stock set
forth in this Section 4.2(b)(v) may be exercised either at a
special meeting of the holders of each series of Preferred Stock,
called as hereinafter provided, or at any annual meeting of
stockholders held for the purpose of electing directors, and
thereafter at such annual meetings, special meetings or by the
written consent of the holders of Preferred Stock, as applicable.
(D) A special meeting of the holders of Preferred Stock for
purposes of voting on matters with respect to which the holders
of such shares are entitled to vote as a class may be called by
the Secretary of the Corporation or by a holder of Preferred
Stock designated in writing by the holders of record of 10% of
the shares of such series of Preferred Stock then outstanding.
Such meeting may be called at the expense of the Corporation by
any such person. At any meeting of the holders of each series of
Preferred Stock, the presence in person or by proxy of the
holders of a majority of the shares of such series of Preferred
Stock then outstanding shall constitute a quorum of the such
series of Preferred Stock.
(vi) Miscellaneous.
(A) Headings of Sections. The headings of the various
subdivisions hereof are for convenience of reference only and
shall not affect the interpretation of any of the provisions
hereof.
(B) Severability of Provisions. If any voting powers,
preferences and relative, participating, optional and other
special rights of the Preferred Stock and qualifications,
limitations and restrictions thereof set forth herein (as may be
amended from time to time) is invalid, unlawful or incapable of
being enforced by reason of any rule of law or public policy, all
other voting powers, preferences and relative, participating,
optional and other special rights of Preferred Stock and
qualifications, limitations and restrictions thereof set forth
herein (as so amended) that can be given effect without the
invalid, unlawful or unenforceable voting powers, preferences and
relative, participating, optional and other special rights of
Preferred Stock and qualifications, limitations and restrictions
thereof shall, nevertheless, remain in full force and effect, and
no voting powers, preferences and relative, participating,
optional or other special rights of Preferred Stock and
qualifications, limitations and restrictions thereof herein set
forth shall be deemed dependent upon any other such voting
powers, preferences and relative,
16
43
participating, optional or other special rights of Preferred
Stock and qualifications, limitations and restrictions thereof
unless so expressed herein.
(c) Other Series of Preferred Stock. Subject to the approval requirements
contained herein, the Board of Directors is hereby expressly authorized by
resolution from time to time adopted providing for the issuance of preferred
stock, to fix and state the designations, powers, preferences and relative,
optional and other special rights of the shares of each series of preferred
stock, and the qualifications, limitations and restrictions thereof, including
(but without limiting the generality of the foregoing) any of the following with
respect to which the Board of Directors shall determine to make effective
provisions:
(i) the distinctive name and serial designation;
(ii) the dividend payment dates;
(iii) the rate or rates at which dividends if any shall be paid;
(iv) whether dividends are to be cumulative or noncumulative, and any
preferential or other special rights with respect to the payment of
dividends;
(v) whether any series shall be redeemable and if so, the terms,
conditions and manner of redemption, and the redemption price or prices;
(vi) he rights of any series on voluntary or involuntary liquidation,
dissolution or winding up, including the amounts or amounts of preferential
or other payments to which any series is entitled over any other series or
over the common stock;
(vii) any sinking fund or other retirement provisions and the extent
to which the charges therefor are to have priority over the payment of
dividends on or the making of sinking fund or other like retirement
provisions for shares of any other series or over dividends on the common
stock;
(viii) the number of shares of such series;
(ix) the voting rights, if any, for such series; and
(x) the conversion rights, if any, for such series.
Unless otherwise provided in the resolution of the Board of Directors
providing for the issue thereof, the shares of any series of preferred stock
which shall be issued and thereafter
17
44
acquired by the Corporation through purchase, redemption, conversion or
otherwise may by resolution of the Board of Directors be returned to the status
of authorized but unissued preferred stock of the same or other series. Unless
otherwise provided in the resolution of the Board of Directors providing for the
issue thereof, the number of authorized shares of stock of any such series may
be increased or decreased (but not below the number of shares thereof then
outstanding) by resolution by the Board of Directors. In case the number of
shares of any such series of preferred stock shall be decreased, the shares
representing such decrease shall, unless otherwise provided in the resolution of
the Board of Directors providing for the issuance thereof, resume the status of
authorized but unissued preferred stock, undesignated as to series.
ARTICLE V
LIMITATION ON LIABILITY
To the fullest extent permitted by the General Corporation Law of Delaware,
as the same exists or may hereafter be amended, a director of the Corporation
shall not be liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. Any repeal or modification of this
Article by the stockholders of the Corporation shall be prospective only and
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
ARTICLE VI
INDEMNIFICATION
Each person who is or was a director or officer of the Corporation, and
each such person who is or was serving at the request of the Corporation as a
director or officer of another Corporation, or in a similar capacity of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans maintained or sponsored by the Corporation
(including the heirs, executors, administrators and estate of such person) shall
be indemnified by the Corporation, in accordance with the procedures specified
in the Bylaws of the Corporation, to the fullest extent permitted from time to
time by the General Corporation Law of the State of Delaware. The Corporation
may, to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of this Article
with respect to the indemnification and advancement of expenses of directors and
officers of the Corporation, without limiting the generality of the foregoing,
the Corporation may enter into one or more agreements with any person that
provide for indemnification and advancement of expenses greater or different
than that provided in this Article. No amendment or repeal of this Article shall
adversely affect any right or protection existing under or pursuant to this
Article immediately before the amendment or repeal.
18
45
ARTICLE VII
ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless the bylaws of
the Corporation so provide.
ARTICLE VIII
AMENDMENTS TO BYLAWS
The Board of Directors of the Corporation is expressly authorized to make,
alter or repeal the bylaws of the Corporation.
[signature page follows]
19
46
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation
of the Corporation has been executed this 31st day of August 2000.
ARRAY BIOPHARMA INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
20
47
EXHIBIT B
PURCHASERS SHARES
---------- ------
ARCH Venture Fund III, L.P. 204,779
▇▇▇▇▇▇▇ Healthcare II, L.P. 16,667
Boulder Ventures II, L.P. 136,587
Boulder Ventures II, (Annex) L.P. 20,410
Falcon Technology Partners, L.P. 156,997
Rovent II Limited Partnership 50,000
Mitsui & Co. (U.S.A.), Inc. 34,130
▇▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D. 266,667
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ph.D. 1,667
▇.▇. ▇▇▇▇▇▇▇▇, Ph.D. 50,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 5,834
The ▇▇▇▇▇▇▇▇▇ Family, L.L.C. 33,936
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 3,332
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 13,621
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,207
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 83,333
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,166
Mosaix Ventures, LP 166,667
Vector Later-Stage Equity Fund II, L.P. 104,167
Vector Later-Stage Equity Fund II (Q.P.), L.P. 312,500
TOTAL: 1,666,667
48
EXHIBIT C
DISCLOSURE SCHEDULE
General - The Array BioPharma Inc. unaudited financial statements for
the year ended June 30, 2000 are included by reference to all applicable
representations.
3.7 Material Contracts - (a) From time to time, Array BioPharma Inc.
purchases analytical instruments and other capital equipment, generally pursuant
to a purchase order. Such purchase orders have occasionally been in excess of
$300,000, and are periodically in excess of $30,000. Array BioPharma Inc. has
recently ordered various analytical instruments for on-going operations and
expansion at a cost of approximately $1,200,000. Array BioPharma Inc. licenses
an assortment of scientific and business software, the license fees for, which
are currently as high as $80,000 per year.
Significant Sales Agreements with future commitments:
Customer Date Type of Agreement
-------- ---- -----------------
▇▇▇ ▇▇▇▇▇ 4/00 Lead Optimization
ICOS 8/00 Lead Optimization
CellTech 6/99 Diversity Library
Tularik 5/99 Diversity Library
Merck Various Custom Libraries
DuPont 8/00 Diversity Library
ICOS 1/00 Process Scale-up
Neurocrine 10/99 Custom Library
Various Other Various Building Blocks & Custom
Synthesis or Libraries
Leases were entered into in July 1998, and April 1999 by and between
Amgen Inc. and Array BioPharma Inc. with a term of three years from the earlier
date for the premises located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
providing for monthly rental payments of approximately $47,000 (triple net). A
building lease was entered into for a facility in Longmont Co. located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ in February 2000 by and between ▇▇▇▇▇ Management Co. and
Array BioPharma with a term expiring May 2005 and monthly rental payments of
approximately $23,000 (triple net).
Agreements with a laboratory cabinet manufacturer, a mechanical
contractor and a general contractor were entered into in April 2000 for the
purpose of providing hoods, cabinets, and improvements to the Longmont facility
in the amount of approximately $3,000,000.
Software license agreement entered into in June of 1998, by and between
Tripos Inc. and Array BioPharma Inc. with a term of three years and providing
for yearly payments of approximately $80,000.
49
From time to time, Array BioPharma Inc. has had, in the normal course
of business negotiations, informal and preliminary discussions with
representatives of other corporations regarding the potential for various kinds
of business collaborations, including the possibility of acquisition of an
equity interest in Array BioPharma Inc.
Array has agreed to provide a fellowship to Scripps in the amount of
$40,000.
3.8 Obligations to Related Parties - Array BioPharma Inc. has loaned
the following amounts to certain of its executive officers. All of the loans
were made in May 1998 and are evidenced by promissory notes that bear simple
interest at 6% per annum. Principal and interest is due four years from the date
the loan was made. There are no periodic interest payments required.
▇▇▇▇▇ ▇▇▇▇ - $100,000
▇▇ ▇▇▇▇▇▇▇▇ - $125,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - $125,000
3.9 Assets - Leases were entered into in July 1998, and April 1999 by
and between Amgen Inc. and Array BioPharma Inc. with a term of three years from
the earlier date for the premises located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and providing for monthly rental payments of approximately $47,000 (triple net).
A building lease was entered into for a facility in Longmont Co. located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ in February 2000 by and between ▇▇▇▇▇ Management Co. and
Array BioPharma with a term expiring May 2005 and monthly rental payments of
approximately $23,000 (triple net).
Nearly all of Array BioPharma Inc.'s capitalized equipment is pledged
as collateral (UCC documents filed) for a combined equipment lease line of
$7,500,000 through Silicon Valley Bank and Leasing Technologies, Inc.
3.10 Intellectual Property - Array BioPharma Inc. has a federal TM
application pending.
3.14 Employees and Consultants - Array BioPharma Inc. has entered into
employment agreements each with a term of 2 years and that continue for one year
terms from year to year with the following individuals in the respective
capacity:
▇▇▇▇▇▇ ▇▇▇▇▇▇ (CEO) October 1999
▇▇▇▇▇ ▇▇▇▇ (President) July 1998(1)
▇▇▇▇▇ ▇▇▇▇▇▇▇ (Chief Operating Officer) July 1998(1)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Vice President of Chemistry) July 1998(1)
▇▇▇▇ ▇▇▇▇▇ (Director) July 1998(1)
▇▇▇▇▇ ▇▇▇▇▇▇▇ (Director) July 1998(l)
(1) indicated agreements amended and renewed effective July 2000.
50
As of the date hereof, Array BioPharma Inc. has entered into
negotiations regarding employment agreements or amended employment agreements,
as the case may be, with the following people: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (CFO); ▇▇▇▇▇▇
Money (Director); ▇▇▇▇▇ ▇▇▇▇ (President); ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Chief Operating
Officer); ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Vice President of Chemistry); ▇▇▇▇ ▇▇▇▇▇
(Director); and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Director).
3.15 Employee Benefit Matters - Array BioPharma Inc. maintains a
401(k) savings Plan which has the ability to match certain employee
contributions. Beginning August 2000, Array BioPharma Inc. began a match of 50%
of the employee's contribution applied to the first 4% of pay contributed by the
employee.
Array BioPharma Inc. provides a health insurance program requiring
nominal employee contributions for payment of premium. This Plan is partially
self-insured by Array BioPharma Inc. with aggregate and specific stop loss
insurance.
3.19 Environmental Matters - Array BioPharma Inc. estimates that it
will continue to incur expenditures of approximately $30,000 to $70,000 per year
related to compliance with environmental and occupational health and safety
laws.
51
EXHIBIT D
AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
52
AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Amendment No. 1 to Amended and Restated Investors Rights Agreement
(this "Amendment") is made and entered into as of the 31st day of August, 2000,
by and among Array BioPharma Inc., a Delaware corporation (the "Company"), and
each of those persons and entities whose names are set forth under the heading
"Investors" or "Common Stockholders" on the signature page attached hereto,
RECITALS
A. The Company, certain of the Investors and the Common Stockholders
previously entered into that certain Amended and Restated Investor
Rights Agreement, dated as of November 16, 1999 (the "Investor Rights
Agreement").
B. The Company, certain Investors and the Common Stockholders have entered
into that certain Series C Preferred Stock Purchase Agreement, dated of
even date herewith (the "Purchase Agreement"), pursuant to which the
Company will issue and sell, and the Investors will purchase, certain
shares of the Company's Series C Preferred Stock (the "Stock").
C. As a condition to the closing of the purchase of the Stock under the
Purchase Agreement, the Company, the Investors and the Common
Stockholders desire to amend the Investor Rights Agreement as provided
herein.
Now, Therefore, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree to amend the Investor Rights Agreement as
follows:
AMENDMENTS
1. The following definitions in Section 1 of the Investor Rights Agreement shall
be amended in their entirety to read as follows:
(j) "Preferred Stock" shall mean any series of preferred stock of the
Company including, without limitation, Series A Preferred, Series B
Preferred or Series C Preferred.
(s) "Shareholders Agreement" shall mean that certain Amended and
Restated Shareholders Agreement dated as of November 16, 1999, as
amended, by and among the Company and those certain holders of the
Company's outstanding capital stock identified therein.
53
2. The following new definition shall be added as Section 1(r) of the Investor
Rights Agreement:
(r) "Series C Preferred Stock" shall mean the Series C Preferred
Stock, $.001 par value per share, of the Company, or any other capital stock of
the Company into which such stock is reclassified or reconstituted, or any
securities convertible into, or exchangeable or exercisable for, any of the
foregoing, in each case, at any time outstanding.
3. Section 3.1 of the Investor Rights Agreement shall be amended in its entirety
to read as follows:
SECTION 3. OTHER COVENANTS OF THE COMPANY
The Company shall comply with the following covenants until
the conversion of Investors' Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock into Common Stock:
3.1 SIGNIFICANT TRANSACTIONS. In addition to any vote or
consent of shareholders or directors required by law or the Company's
Amended and Restated Certificate of Incorporation (the "Certificate"),
so long as any originally issued Preferred Stock remains outstanding,
the Required Consent of the Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock, voting as separate
classes for the transaction described in Section 3.1(a) and together as
a single class for the transactions described in Section 3.1(b), either
in writing without a meeting or by vote at any meeting called for the
purpose, shall be necessary for effecting, validating or permitting:
(a) any amendment, alteration or repeal of any of (i) the
provisions of the Certificate or the Bylaws of the Company affecting
the rights, powers and preferences of the Series A Preferred Stock,
Series B Preferred Stock or Series C Preferred Stock, as applicable, or
(ii) the provisions of Article IV of the Certificate; or
(b) any consolidation or merger of the Company with or into
any other corporation, or any other corporate reorganization, in which
the stockholders of the Company immediately prior to such
consolidation, merger or reorganization, own less than 50% of the
Company's voting power immediately after such consolidation, merger or
reorganization; any transaction or series of related transactions in
which excess of 50% of the Company's voting power is transferred; any
reclassification or recapitalization of any capital stock of the
Company; any dissolution, liquidation, or winding up of the Company; or
any sale of more than 50% of the assets of the Company, or any
agreement to become so obligated.
MISCELLANEOUS
1. Interpretation. Except as expressly amended by this Amendment, the Investor
Rights Agreement shall remain in full force and effect without change.
54
2. Counterparts. This Amendment may be executed in any number of counterparts,
each of which when executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument.
3. Effective Time. This Amendment shall be effective following its execution by
the holders of at least 66-2/3% of the outstanding shares held by the Holders
(as defined in the Investor Rights Agreement) and at least a majority of the
Common Stockholders, in accordance with Section 4.1 of the Investor Rights
Agreement.
4. Additional Investors. Each party who purchases Stock pursuant to the Purchase
Agreement agrees to be bound by the terms of the Investor Rights Agreement and
shall be deemed an additional "Investor" for all purposes thereunder.
[signature pages follow]
55
EXHIBIT E
AMENDMENT NO. 2 TO
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
56
AMENDMENT NO. 2 TO
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
This Amendment No. 2 to Amended and Restated Shareholders Agreement
(this "Amendment ") is entered into as of the 31st day of August, 2000, by and
among Array BioPharma Inc., a Delaware corporation (the "Company") and each of
those persons listed on the signature pages hereto as either "Investors",
"Founders" or "Holders ".
RECITALS
A. The Company, Founders and certain Investors and Holders
previously entered into that certain Amended and Restated
Shareholders Agreement, dated as of November 16, 1999 (as
amended heretofore, the "Shareholders Agreement").
B. The Company, certain Investors and Founders have entered into
that certain Series C Preferred Stock Purchase Agreement,
dated of even date herewith (the "Purchase Agreement"),
pursuant to which the Company will issue and sell, and the
Investors and Founders will purchase, certain shares of the
Company's Series C Preferred Stock (the "Stock").
C. As a condition to the closing of the purchase of the Stock
under the Purchase Agreement, the Company, Investors, Founders
and Holders desire to amend the Shareholders Agreement as
provided herein.
D. The Investors and Founders acknowledge that the Company has
complied with its obligations under Section 3 of the
Shareholders Agreement relating to Rights of First Refusal in
connection with the issuance of the Stock under the Purchase
Agreement and waive such right solely in connection with the
issuance of Stock under the Purchase Agreement.
Now, Therefore, in consideration of the foregoing, the mutual covenants
and agreements herein contained and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereby agree
that the Shareholders Agreement shall be amended as follows:
AMENDMENTS
1. In Section 1 of the Shareholders Agreement, the definition of "Preferred
Stock" shall be amended in its entirety to read as follows:
"Preferred Stock" shall mean any series of preferred stock of
the Company, including, without limitation, the Series A Preferred
Stock, the Series B Preferred Stock and Series C Preferred Stock.
2. In Section 1 of the Shareholders Agreement, the following definition shall be
added:
57
"Series C Preferred Stock" shall mean the Series C Preferred
Stock, $0.001 par value per share, of the Company, or any other
capital stock of the Company into which such stock is reclassified or
reconstituted or any securities convertible into, or exchangeable or
exercisable for, any of the foregoing, in each case, at any time
outstanding.
3. Section 2.2(a) of the Shareholders Agreement shall be amended in its entirety
to read as follows:
2.2 Right of First Offer.
(a) If at any time, other than pursuant to an Exempt Transfer,
any Shareholder or their Related Party (each, a "Seller") desires to
Transfer any or all of the Shares or any rights to Shares held by such
Seller to any person, such Seller shall reduce to writing the terms
pursuant to which Seller desires to Transfer such Shares (a "Transfer
Offer"). The Transfer Offer shall identify the number of Shares to be
transferred, the consideration for the Shares, the identity of any
third party offeror, and all the other terms and conditions of such
Transfer Offer. The Seller shall deliver the Transfer Offer to the
Company, Founders and Investors. Notwithstanding anything to the
contrary contained herein, for any Transfer by an Investor or Founder,
or their Exempt Transferees, of:
(i) Series A Preferred Stock, the rights set forth in
this Section 2.2 shall be limited to Transfer Offerees holding
Series A Preferred Stock;
(ii) Series B Preferred Stock, the rights set forth
in this Section 2.2 shall be limited to Transfer Offerees
holding Series B Preferred Stock; or
(iii) Series C Preferred Stock, the rights set forth
in this Section 2.2 shall be limited to Transfer Offerees
holding Series C Preferred Stock.
Notwithstanding anything to the contrary contained herein, Section 2.3
shall not apply to any such Transfer of Series B Preferred Stock or
Series C Preferred Stock.
MISCELLANEOUS
1. Interpretation. Except as expressly amended by this Amendment, the
Shareholders Agreement shall remain in full force and effect without change.
2. Counterparts. This Amendment may be executed in any number of counterparts,
each of which when executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument.
3. Effective Time. This Amendment shall be effective following its execution by
the Founders who hold two thirds of the Shares (as defined in the Shareholders
Agreement) held by
58
the Founders, the Investors who hold two-thirds of the Shares (as defined in the
Shareholders Agreement) held by the Investors and Holders who hold 51% of the
Shares (as defined in the Shareholders Agreement) held by Holders, each voting
as a class, in accordance with Section 7.1 of the Shareholders Agreement.
4. Additional Investors. Each party who purchases Stock pursuant to the Purchase
Agreement agrees to be bound by the terms of the Shareholders Agreement and
shall be deemed an additional "Investor" for all purposes thereunder.
[signature pages follow]
59
EXHIBIT F
CAPITALIZATION
OF THE COMPANY AS OF THE CLOSING DATE
60
Array BioPharma CAPITALIZATION TABLE 8/31/2000
Confidential
Ownership Structure as of
August 31, 2000
SHARES PURCHASE PURCHASE
COMMON @ PRICE SHARES A @ PRICE SERIES B @
STOCKHOLDERS OPTIONS $0.235/SH. COMMON $1.00/SH. SERIES A $2.50/SH.
------------ ------- ---------- ----------- ---------- ----------- ----------
ARCH Venture Fund III, LP $ -- 1,500,000 $ 1,500,000 604,446
▇▇▇▇▇▇▇ & Company $ -- 1,500,000 $ 1,500,000 604,446
BOULDER VENTURES II 130,500 $ 30,668 870,000 $ 870,000 403,166
BOULDER VENTURES II ANNEX 19,500 $ 4,583 130,000 $ 130,000 60,243
FALCON TECHNOLOGY 150,000 35,250 1,000,000 $ 1,000,000 463,409
ADVENT International, Inc. $ -- 750,000 $ 750,000 120,000
MITSUI & Company $ -- 250,000 $ 250,000 100,741
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 18,750 $ 4,406 250,000 $ 250,000 80,000
▇▇▇▇▇ ▇▇▇▇▇▇ 50,000 $ 50,000 10,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 100,387 44,505 $ 10,459 25,000 $ 25,000 8,000
▇▇▇▇▇▇▇ ▇▇▇▇ 25,000 $ 25,000 9,600
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 20,000 $ 20,000 4,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 10,000 $ 10,000 2,400
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 20,819 10,457 $ 2,457 5,000 $ 5,000 12,500
FOUNDING MANAGEMENT
▇▇▇▇▇ ▇▇▇▇ 76,172 664,396 $ 156,074 26,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ 65,734 662,977 $ 155,741 30,000
▇▇ ▇▇▇▇▇▇▇▇ 648,654 $ 152,375 252,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ 76,172 664,397 $ 156,075 250,000 $ 250,000 356,148
SERIES C INVESTORS
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vector Fund Management
Mosaix Ventures
--------- --------- ----------- ----------- ----------- ---------
Total Series A, B & Founders 339,284 3,014,136 $ 708,087 6,635,000 $ 6,635,000 3,147,099
Other - Preferred Series B 52,900
Other - Common 851,607 $ 287,728
SILICON VALLEY (Warrants) 47,000 50,000
LTI (Warrants) 16,500
Options Issued less included in
Founders and Investors (above) 2,658,855
--------- --------- ----------- ----------- ----------- ---------
Total 2,998,139 3,865,743 $ 995,814 6,698,500 $ 6,635,000 3,249,999
========= ========= =========== =========== =========== =========
PURCHASE PURCHASE TOTAL POST
PRICE SERIES C @ PRICE SHARES TOTAL %
STOCKHOLDERS SERIES B $6.00/SH. SERIES C (POST) OWNERSHIP
------------ ----------- ----------- ----------- ---------- ---------
ARCH Venture Fund III, LP $ 1,511,116 204,779 $ 1,228,674 2,309,225 12.50%
▇▇▇▇▇▇▇ & Company $ 1,511,116 16,667 $ 100,002 2,121,113 11.48%
BOULDER VENTURES II $ 1,007,914 136,587 $ 819,522 1,540,253 8.34%
BOULDER VENTURES II ANNEX $ 150,608 20,410 $ 122,460 230,153 1.25%
FALCON TECHNOLOGY $ 1,158,522 156,997 $ 941,982 1,770,406 9.58%
ADVENT International, Inc. $ 300,000 50,000 $ 300,000 920,000 4.98%
MITSUI & Company $ 251,853 34,130 $ 204,780 384,871 2.08%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $ 200,000 33,936 $ 203,616 382,686 2.07%
▇▇▇▇▇ ▇▇▇▇▇▇ $ 25,000 5,834 $ 35,004 65,834 0.36%
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ $ 20,000 3,332 $ 19,992 181,224 0.98%
▇▇▇▇▇▇▇ ▇▇▇▇ $ 24,000 34,600 0.19%
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $ 10,000 13,621 $ 81,726 37,621 0.20%
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $ 6,000 1,207 $ 7,242 13,607 0.07%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ $ 31,250 48,776 0.26%
FOUNDING MANAGEMENT
▇▇▇▇▇ ▇▇▇▇ $ 65,000 766,568 4.15%
▇▇▇▇ ▇▇▇▇▇▇▇▇ $ 75,000 1,667 $ 10,002 760,378 4.11%
▇▇ ▇▇▇▇▇▇▇▇ $ 630,000 50,000 $ 300,000 950,654 5.14%
▇▇▇▇▇ ▇▇▇▇▇▇▇ $ 890,371 266,667 $ 1,600,002 1,613,384 8.73%
SERIES C INVESTORS
▇▇▇▇▇ ▇▇▇▇▇▇ 83,333 $ 499,998 83,333
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,166 $ 24,996 4,166
Vector Fund Management 416,667 $ 2,500,002 416,667
Mosaix Ventures 166,667 $ 1,000,002 166,667
----------- --------- ----------- ---------- ------
Total Series A, B & Founders $ 7,867,750 1,666,667 $10,000,002 14,802,186 80.10%
Other - Preferred Series B $ 132,250 52,900 0.29%
Other - Common 851,607 4.61%
SILICON VALLEY (Warrants) 97,000 0.52%
LTL (Warrants) 16,500 0.09%
Options Issued less included in
Founders and Investors (above) 2,658,855 14.39%
----------- ----------- ----------- ---------- ------
Total $ 8,000,000 $ 1,666,667 $10,000,002 18,479,048 100.00%
=========== =========== =========== ========== ======
61
EXHIBIT G
OPINION OF COUNSEL TO THE COMPANY
62
August 31, 2000
To: The Purchasers under the Series C Preferred Stock Purchase Agreement dated
August 31, 2000
Re: Array BioPharma Inc.; Series C Preferred Stock Purchase Agreement
Ladies and Gentlemen:
This firm has acted as special counsel to Array BioPharma Inc., a
Delaware corporation (the "Company"), in connection with the Series C Preferred
Stock Purchase Agreement, dated of even date herewith (the "Purchase
Agreement"), among the Company and certain investors identified as "Purchasers"
on the signature pages thereto (collectively, the "Purchasers"). This opinion
letter is furnished to you pursuant to the requirements set forth in Section
5.1(j) of the Purchase Agreement. Capitalized terms used herein that are defined
in the Purchase Agreement shall have the meanings set forth in the Purchase
Agreement, unless otherwise defined herein.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. The Purchase Agreement, Amendment No. 2 to Amended and
Restated Shareholders Agreement and Amendment No. 1 to Amended and Restated
Investor Rights Agreement (collectively, the "Documents").
2. The Company's Amended and Restated Certificate of
Incorporation (the "Certificate"), as certified by the Secretary of State of the
State of Delaware on August 31, 2000 and as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in effect.
3. The Bylaws of the Company, as certified by the Secretary of
the Company on the date hereof as being complete, accurate and in effect.
4. A certificate of good standing of the Company issued by the
Secretary of State of the State of Delaware dated August 31, 2000.
5. Foreign qualification certificate issued by the Secretary
of State of the State of Colorado dated August 21, 2000.
6. Resolutions of the Board of Directors of the Company
adopted by unanimous written consent dated August 22, 2000, as certified by the
Secretary of the Company on the date hereof as being complete, accurate and in
effect, relating to, among other things, authorization of the Purchase Agreement
and the consummation of the transactions contemplated thereunder.
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The Purchasers
August 31, 2000
Page 2
7. A certificate of an officer of the Company dated the date
hereof as to certain facts relating to the Purchase Agreement and the Company.
8. A certificate of the Secretary of the Company, dated the
date hereof, as to the incumbency and signatures of certain officers of the
Company.
9. The common and preferred stock ledger of the Company
certified by the Secretary of the Company as being accurate and complete as of
the date hereof.
We have not, except as specifically identified above, made any
independent review or investigation of factual matters, including the assets,
business or affairs of the Company. In our examination of the Documents and the
aforesaid certificates, records, documents and agreements, we have assumed the
genuineness of all signatures (other than those on behalf of the Company in the
Documents), the legal capacity of all natural persons, the accuracy and
completeness of all documents submitted to us, the authenticity of all original
documents and the conformity to authentic original documents of all documents
submitted to us as copies (including telecopies). We also have assumed the
accuracy, completeness and authenticity of the foregoing certifications (of
public officials, governmental agencies and departments and corporate officers)
and statements of fact, on which we are relying, and have made no independent
investigations thereof. In rendering the following opinions with respect to the
Company, we have relied as to factual matters, without independent
investigation, upon the representations, warranties and certifications made by
the Company in or pursuant to the Documents and upon the officer's certificate
identified in Paragraph 7 above and the Secretary's certificate identified in
Paragraph 8 above. This opinion letter is given, and all statements herein are
made, in the context of the foregoing.
As used in this opinion letter, the phrase "to our knowledge" means
the actual knowledge (that is, the conscious awareness of facts or other
information) of lawyers in the firm who have given substantive legal attention
to representation of the Company since the Company has been a client of the
firm.
For purposes of this opinion letter, we have assumed that (i) the
Purchasers have all requisite power and authority under all applicable laws,
regulations and governing documents to execute, deliver and perform their
respective obligations under the Documents, (ii) the Purchasers have duly
authorized, executed and delivered the Documents, (iii) the Purchasers, to the
extent they are not individuals, are validly existing and in good standing in
all necessary jurisdictions, (iv) the Documents constitute valid and binding
obligations, enforceable against the Purchasers in accordance with their
respective terms and (v) there has been no material mutual mistake of fact or
misunderstanding or fraud, duress or undue influence, in connection with the
negotiation, execution or delivery of the Documents.
64
The Purchasers
August 31, 2000
Page 3
This opinion letter is based as to matters of law solely on applicable
provisions of (i) the Delaware General Corporation Law and (ii) Colorado
contract law (but not including any statutes, ordinances, administrative
decisions, rules or regulations of any political subdivision of the State of
Colorado), except as to Paragraph (i) below, which is limited to the Securities
Act of 1933, as amended, and we express no opinion as to any other laws,
statutes, ordinances, rules or regulations (such as state securities laws or
regulations, antitrust or unfair competition laws or regulations, tax laws or
regulations or communications laws or regulations).
Based upon, subject to and limited by the foregoing, we are of the
opinion that:
(a) The Company was incorporated and is validly existing and in good
standing as of the date specified in the certificate referred to in Paragraph 4
above under the laws of the State of Delaware.
(b) The Company is authorized to transact business as a foreign
corporation in the State of Colorado as of the date of the certificate specified
in Paragraph 5 above. The Company is not qualified as a foreign corporation in
any jurisdiction other than the State of Colorado.
(c) The Company has the requisite corporate power and corporate
authority to own or lease its properties and assets and to conduct its business
as it is currently being conducted.
(d) The Company has the corporate power and corporate authority to
enter into the Documents and to perform its obligations thereunder.
(e) The Documents are valid, binding and enforceable against the
Company in accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and other law regarding
fraudulent conveyances, fraudulent transfers and preferential transfers) and as
may be limited by the exercise of judicial discretion and the application of
principles of equity including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether such
agreements are considered in a proceeding in equity or at law). In addition, we
express no opinion as to the indemnification and contribution provisions
contained in Section 2 of the Amended and Restated Investor Rights Agreement.
(f) The execution, delivery and performance as of the date hereof by
the Company of the Documents have been duly authorized by all necessary
corporate action of the Company.
(g) The authorized, issued and outstanding capital stock of the Company
as of August 31, 2000 are as set forth in Section 3.2 of the Purchase Agreement.
The shares of common stock issuable upon conversion of the Series C Preferred
Stock (the "Conversion Shares") have been duly and validly reserved for
issuance. When issued in compliance with the Certificate and the
65
The Purchasers
August 31, 2000
Page 4
Purchase Agreement, the Conversion Shares will be validly issued, fully paid and
nonassessable, and will be free of any liens or encumbrances created by the
Company; provided, however, that the Conversion Shares are subject to
restrictions on transfer under state and/or federal securities laws and the
Documents. The shares of Series C Preferred Stock, when issued in accordance
with the Certificate and the Purchase Agreement, will be validly issued, fully
paid and non-assessable, and will be free of liens or encumbrances created by
the Company; provided, however, that the shares of Series C Preferred Stock are
subject to restrictions on transfer under state and/or federal securities laws
and the Documents. Except as provided in the Documents, to our knowledge, there
are no outstanding rights, options, warrants, conversion privileges, preemptive
rights, or other agreements or commitments obligating the Company to issue or
transfer any additional shares of Series C Preferred Stock.
(h) The execution, delivery, and performance as of the date hereof by
the Company of the Documents do not violate the Certificate or Bylaws of the
Company.
(i) Based on the covenants and representations of the Purchasers set
forth in the Purchase Agreement and the representations of the Company officer
referred to in Paragraph 7 above, the offer, issuance and sale of the Series C
Preferred Stock to the Purchasers pursuant to the Purchase Agreement is exempt
from the registration requirements of the Securities Act of 1933, as amended.
The opinion expressed in Paragraph (e) above shall be understood to
mean only that if there is a default in performance of an obligation, (i) if a
failure to pay or other damage can be shown and (ii) if the defaulting party can
be brought into a court which will hear the case and apply the governing law,
then, subject to the availability of defenses, and to the exceptions set forth
in Paragraph (e) above, the court will provide a money damage (or perhaps
injunctive or specific performance) remedy.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with transactions contemplated by the
Purchase Agreement on the date hereof, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
Very truly yours,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.