1
EXHIBIT 10.15
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR
AN APPLICABLE EXEMPTION TO SUCH REGISTRATION.
PROMISSORY NOTE
Principal: $125,000 May 18, 1998
Boulder, Colorado
FOR VALUE RECEIVED the undersigned, Xxxxxxx X. Xxxxxxxx, Ph.D., his
successors or assigns ("Borrower"), promises to pay to the order of ARRAY
BIOPHARMA INC. ("Lender") on the Due Date (as defined below), (i) $125,000 which
equals the principal amount loaned to Borrower by Lender under this Note and
(ii) interest on the unpaid principal outstanding, which shall accrue from the
date of this Note until paid in full at the simple rate of six percent (6%) per
annum. Interest shall accrue at the simple rate of twelve percent (12%) per
annum, upon default under the Note, until paid in full.
DUE DATE. The "Due Date" as used in this Note shall be the earlier of
(i) four years from the date of this Note, or (ii) upon voluntary termination of
Xxxxxxxx's employment and consultancy with the Company.
PREPAYMENT. Principal, interest and any charges may be prepaid in whole
or in part at any time without penalty or premium. Prepayments will be applied
first to accrued interest, then to additional charges and then to principal.
SECURITY. Payment and performance of Xxxxxxxx's obligations under this
Note shall be secured by a pledge of Borrower's stock in Lender, as set forth in
that certain Pledge Agreement between Borrower and Lender, of equal date
herewith.
EVENTS OF DEFAULT. Borrower shall be in default under this Note upon
the happening of any of the following (each, an "Event of Default"): (a)
Borrower's failure to make any payment under this Note when due; (b) Borrower's
failure to perform or comply with any term, covenant, or condition of this Note;
(c) if the collateral or any part thereof securing Lender's security interest is
seized or levied upon under legal process, or is placed under any lien or
encumbrance; (d) if any representation, warranty or statement made by Borrower
herein proves untrue or incomplete in any material respect; (e) if Borrower
becomes insolvent or enters into negotiations with creditors with regard to a
composition or rescheduling of any material portion of his debt, makes an
assignment for the benefit of creditors, or applies for or consents to the
appointment of a trustee or receiver for Borrower or for any major part of its
property and such trustee or receiver is not discharged within 30 days after
such appointment; (f) if Bankruptcy, reorganization, arrangements, insolvency or
liquidation proceedings, or other proceedings for relief under any bankruptcy
law or similar law for the relief of debtors, are instituted by or against
Borrower, and
2
if instituted against Borrower, such proceedings are allowed against Borrower or
are consented to by Borrower and are not dismissed within 30 days after such
institution; provided, however, that for any event specified in clauses (a),
(b), or (c) above, an Event of Default shall not have occurred unless Borrower
has been given written notice of such default and fails to cure the default
within 30 days from the date a notice of default is given to Borrower.
Except as provided in the last clause of the immediately preceding
paragraph, upon the occurrence of an Event of Default, then and in such event,
Xxxxxx may declare this Note immediately due and payable.
USE OF PROCEEDS. Borrower acknowledges that all of the proceeds
represented by this Note have been used to purchase Xxxxxx's Common Stock
pledged to secure this Note.
WAIVER. The acceptance by Lender of any partial payment or any payment
made hereunder after the time when any obligation under this Note becomes due
and payable will not establish a custom, or waive any rights of Lender to
enforce prompt and full payment hereof. Borrower and any endorser hereof waives
presentment, demand and protest and notice of presentment, default, non-payment,
maturity, release, compromise, settlement, extension or renewal of this Note.
ARBITRATION; COSTS OF COLLECTION. Any disputes arising under this Note
shall be subject to final and binding arbitration under the commercial
arbitration rules of the American Arbitration Association before a single
independent arbitrator selected by the parties (or if the parties do not agree
as to the selection of the arbitrator within ten days of the submission of the
dispute to arbitration, by a commercial arbitrator selected by the AAA within
ten days thereafter). Each party consents to submit to arbitration in Denver or
Boulder, Colorado. The arbitrators award may, but is not required to be,
submitted to a court of competent jurisdiction to be entered as a final judgment
and enforced accordingly. The prevailing party shall be entitled to an award of
all fees and costs, including attorneys' fees, reasonably incurred.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Lender that (i) Borrower is a resident of the state of Colorado, (ii) no
litigation, arbitration, government investigation or other action or proceeding
is pending, or to the knowledge of Borrower, threatened against Borrower; and
(iii) Borrower has no material debts, liabilities or other obligations that
subordinate Lender's security interest in, or otherwise lien or encumber the
secured collateral.
SET-OFF. Any deposits or other sums at any time credited or payable by
or due from Lender to Borrower may be applied by Lender or Borrower to or set
off by Lender or Borrower against Xxxxxxxx's obligations hereunder. Any funds,
cash, cash equivalents, securities, instruments, documents or other assets of
Borrower in possession or control of Lender or its affiliates or bailees for any
purpose may at any time be reduced to cash and applied by Lender to or set off
by Xxxxxx against Xxxxxxxx's obligations hereunder.
-2-
3
SEVERABILITY. If any provision of this Note or the application thereof
or any party or circumstance is held invalid or unenforceable, the remainder of
this Note and the application of such provision to other parties or
circumstances will not be affected thereby and the provision of this Note shall
be severable in any such instance.
GOVERNING LAW. This Note is governed and controlled by the laws of
Colorado (without regard to the choice to provisions thereof) as to
interpretation, enforcement, validity, construction, effect and in other
respects.
MODIFICATIONS. This Note may not be changed orally, but only by an
agreement in writing, signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
/s/ XXXXXXX X. XXXXXXXX
------------------------------
Xxxxxxx X. Xxxxxxxx, Ph.D.
-3-
4
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of May 18, 1998, between Xxxxxxx X. Xxxxxxxx,
Ph.D., ("Pledgee"), and ARRAY BIOPHARMA INC., a Delaware corporation (the
"Company ").
RECITALS
X. Xxxxxxx has executed a Promissory Note dated as of March 18, 1998
payable to the Company in the principal amount of $125,000 (the "Note").
B. Pledgee is willing to secure the due and punctual payment of the
principal and interest of the Note in accordance with the terms thereof and all
other amounts payable in respect thereof, including without limitation any costs
and expenses incurred in connection with the realization of the security for
which this Agreement provides and any costs and expenses of any proceedings to
which this Agreement may give rise (all such payments, obligations, costs and
expenses, collectively, the "Obligations").
AGREEMENT
In consideration of the mutual promises set forth herein and subject to
the terms and conditions hereof, the parties hereto agree as follows:
ARTICLE I
PLEDGE
As collateral security for payment in full of the Obligations, Pledgee
hereby pledges, hypothecates, assigns, transfers, sets over and delivers unto
the Company and grants to the Company a security interest in 648,404 shares of
common stock, par value $0.001 per share, of the Company (the "Pledged Shares"),
together with a separate assignment executed in blank, attached hereto as
Exhibit A.
ARTICLE II
PLEDGED SHARES
2.01 RIGHTS OF PLEDGEE IN PLEDGED SHARES. So long as there shall not
have occurred and be continuing an Event of Default hereunder, Pledgee may
exercise any and all rights and powers relating or pertaining to the Pledged
Shares for any purpose not inconsistent with the terms of this Agreement,
including without limitation the right to vote the Pledged Shares, whether at a
meeting of shareholders or by consent in lieu of a meeting, and the right to
receive and retain any and all cash distributions, if any, paid by the Company
with respect to the Pledged Shares.
5
2.02 TRANSFER OF PLEDGED SHARES. The Company shall not assign, transfer
or deliver any of the Pledged Shares to any person unless and until an Event of
Default hereunder shall have occurred and be continuing. Upon the occurrence and
during the continuance of an Event of Default hereunder, the Company may assign,
transfer or deliver any of the Pledged Shares to any transferee of any interest
in the Note and thereafter shall be fully discharged from all responsibility
with respect to such Pledged Shares, but the Company shall retain all rights and
powers hereunder with respect to any of the Pledged Shares remaining.
ARTICLE III
DEFAULT
3.01 EVENTS OF DEFAULT. Events of Default shall be as defined in the
Note.
3.02 REMEDIES. (a) If an Event of Default shall have occurred and be
continuing, the Company may acquire the Pledged Shares or may arrange for their
sale to another party.
(b) The proceeds of the sale of all or any part of the Pledged Shares
shall be applied first to expenses of sale, including attorney's fees, and then
toward the satisfaction of all amounts owing on the Note and the other
Obligations and any remaining surplus shall be paid to Pledgee.
(c) No failure on the part of the Company to exercise, and no delay in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy by the Company preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. All remedies hereunder are
cumulative and not exclusive of any other remedies provided by law.
ARTICLE IV
TERMINATION
This Agreement shall terminate, and the Company shall return to Pledgee
such of the Pledged Shares as shall not have been exchanged, released,
transferred, sold, conveyed or otherwise disposed of in accordance with this
Agreement, upon satisfaction in full of the Obligations.
ARTICLE V
MISCELLANEOUS
5.01 THE COMPANY APPOINTED ATTORNEY-IN-FACT. Pledgee hereby constitutes
and appoints the Company, with unlimited powers of substitution, the
attorney-in-fact of Pledgee for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument which the
Company or such person authorized by the Company may
-2-
6
deem necessary or advisable to accomplish the purpose hereof, which appointment
is irrevocable and coupled with an interest.
5.02 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Colorado.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PLEDGEE:
/s/ XXXXXXX X. XXXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxxx, Ph.D.
COMPANY:
ARRAY BIOPHARMA INC.,
a Delaware corporation
By: /s/ XXXXX XXXXXXX
-------------------------------
Its: COO
------------------------------
-3-
7
IRREVOCABLE STOCK POWER
KNOW ALL MEN BY THESE PRESENTS:
That Xxxxxxx X. Xxxxxxxx, Ph.D., the undersigned, FOR VALUE RECEIVED, hereby
bargained, sold, assigned and transferred and by these presents hereby
bargains, sells, assigns and transfers unto Array BioPharma Inc., 648,404
shares of the Common Stock of Array BioPharma Inc. standing in the name of the
undersigned on the books of the said Array BioPharma Inc. represented by
Certificate No. ____ AND the undersigned hereby constitutes and appoints Array
BioPharma Inc. as attorney-in-fact, IRREVOCABLY, to sell, assign, transfer,
hypothecate, pledge and make over all or any part of the said stock and for
that purpose to make and execute all necessary acts of assignment and transfer
thereof, and to substitute one or more persons with like full power, hereby
ratifying and confirming all that said attorney-in-fact or a substitute or
substitutes shall lawfully do by virtue hereof.
WITNESSED this 18th day of May, 1998, at
/s/ XXXXXXX X. XXXXXXXX
--------------------------------------------------
STATE OF COLORADO )
) ss.
COUNTY OF BOULDER )
The foregoing instrument was signed and acknowledged before me this
18th day of May, 1998, by Xxxxxxx X. Xxxxxxxx.
Witness by hand and official seal
My commission expires 7-17-2000.
/s/
------------------------------
Notary
8
INCORPORATED UNDER THE LAWS OF THE STATE OF
DELAWARE
NUMBER SHARES
C-7 648,404
ARRAY BIOPHARMA INC.
COMMON STOCK
SHARES ARE WITH $.001 PAR VALUE
THIS CERTIFIES THAT XXXXXXX X. XXXXXXXX, Ph.D. is the owner of
Six Hundred Forty-Eight Thousand Four Hundred Four Shares of the Capital Stock
of ARRAY BIOPHARMA INC. Common Stock FULLY PAID AND NON-ASSESSABLE
transferable only on the books of the Corporation by the holder hereof in
person or by Attorney upon surrender of this Certificate properly endorsed.
IN WITNESS WHEREOF, the said Corporation has caused this Certificate
to be signed by its duly authorized officers and its Corporate Seal to be
hereunto affixed this 18th day of May A.D. 1998
/s/ XXXXXXX X. XXXXXXXX /s/ XXXXX XXXX
---------------------------------- --------------------------------------
SECRETARY PRESIDENT
9
AMENDMENT TO PROMISSORY NOTE
AND PLEDGE AGREEMENT
THIS AMENDMENT TO PROMISSORY NOTE AND PLEDGE AGREEMENT (this
"Amendment") is entered into as of September 1, 2000 by and among Array
BioPharma Inc., a Delaware corporation (the "Company") and Xxxxxxx X. Xxxxxxxx
(the "Employee").
RECITALS
A. The Employee issued the Company a certain promissory noted dated May
18, 19998 with and initial principal balance of $125,000 (the "Promissory
Note").
B. The Company and Employee entered into that certain pledge agreement
dated May 18, 1998 (the "Pledge Agreement").
C. The Company and Employee desire to amend the Promissory Note and
Pledge Agreement as set forth in this Amendment.
AGREEMENT
In consideration of the mutual promises set forth herein and other
good and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. The second paragraph of the Promissory Note titled "Due Date" shall be
deleted in its entirety and replaced with the following language:
DUE DATE. The "Due Date" as used in this Note shall be the
earlier of (i) September 1, 2002, or (ii) upon a voluntary termination
of Xxxxxxxx's employment and consultancy with the Lender.
2. Article I of the Pledge Agreement titled "Pledge" shall be deleted in
its entirety and replaced with the following language:
As collateral security for payment in full of the
Obligations, Pledgee hereby pledges, hypothecates, assigns, transfers,
sets over and delivers unto the Company and grants to the Company a
security interest in 50,000 shares of common stock, par value $0.001
per share, of the Company (the "Pledged Shares"), together with a
separate assignment executed in blank, attached hereto as Exhibit A.
3. Except for the provisions of the Promissory Note and Pledge Agreement
that are expressly amended by this Amendment, the Promissory Note and Pledge
Agreement are hereby ratified in their entirety.
10
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
Promissory Note and Pledge Agreement as of the date first set forth above.
ARRAY BIOPHARMA INC. /s/ XXXXXXX X. XXXXXXXX
------------------------------
XXXXXXX X. XXXXXXXX, Ph.D.
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Xxxxxx X. Xxxxxx, Chief Executive
Officer
