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EXHIBIT 10.17
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.
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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.
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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]
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Amended and Restated Investor Rights Agreement as of the date first above
written.
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COMPANY: COMMON STOCKHOLDERS:
ARRAY BIOPHARMA INC. /s/ DAVID SNITMAN
------------------------------
DAVID SNITMAN, PH.D.
By: /s/ ROBERT CONWAY
------------------------------------
Robert Conway, Chief Executive Officer /s/ KEVIN KOCH
------------------------------
KEVIN KOCH, PH.D.
/s/ ANTHONY D. PISCOPIO
------------------------------
ANTHONY D. PISCOPIO, PH.D.
/s/ K.C. NICOLAOU
------------------------------
K.C. NICOLAOU, PH.D.
INVESTORS:
FRAZIER HEALTHCARE II, L.P.
By: /s/ ROBERT W. OVERELL
---------------------------
Print Name: Robert W. Overell
-------------------
Title: General Partner
------------------------
ARCH VENTURE FUND III, L.P.
By: Arch Venture Partners, LLC, its
General Partner
By: /s/ ROBERT T. NELSEN
---------------------------
Name: Robert T. Nelsen
-------------------------
Title: Managing Director
------------------------
ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, its General Partner
By: Advent International Corporation,
its General Partner
By: /s/ JASON S. FISHERMAN
---------------------------
Name: Jason S. Fisherman
-------------------------
Title: VP
------------------------
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MITSUI & CO. (U.S.A.), INC.
By: /s/ YOUICHIRO ENDO
---------------------------
Print Name: Youichiro Endo
-------------------
Title: General Manager
------------------------
FALCON TECHNOLOGY PARTNERS, L.P.
By: /s/ JAMES L. RATHMANN
-------------------------------------------
James L. Rathmann, General Partner
BOULDER VENTURES II, L.P.
By: /s/ KYLE LEFKOFF
-------------------------------------------
Kyle Lefkoff, General Partner
BOULDER VENTURES II, (ANNEX) L.P.
By: /s/ KYLE LEFKOFF
-------------------------------------------
Kyle Lefkoff, General Partner
THE CARUTHERS FAMILY, L.L.C.
By: /s/ MARVIN H. CARUTHERS
-------------------------------------------
Marvin H. Caruthers, Ph.D., Manager
/s/ FRANK A. BONSAL, JR
--------------------------------
FRANK A. BONSAL, JR.
--------------------------------
RICHARD J. DALY
/s/ MICHAEL CARRUTHERS
--------------------------------
MICHAEL CARRUTHERS
/s/ CHRISTOPHER D. OZEROFF
--------------------------------
CHRISTOPHER D. OZEROFF
/s/ THERESA KOCH
--------------------------------
THERESA KOCH
/s/ WILLIAM R. ROBERTS
--------------------------------
WILLIAM R. ROBERTS
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SILICON VALLEY BANK
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
LEASING TECHNOLOGIES INTERNATIONAL, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
/s/ KIRBY L. CRAMER
------------------------------
KIRBY L. CRAMER
/s/ JOSEPH LEFKOFF
-------------------------------
JOSEPH LEFKOFF
VECTOR LATER-STAGE EQUITY FUND II, L.P.
By: Vector Fund Management II, L.L.C., its
General Partner
By: BARCLAY A. PHILLIPS
------------------------------
Print Name: BARCLAY A. PHILLIPS
----------------------
Title: Managing Director
---------------------------
VECTOR LATER-STAGE EQUITY FUND II, L.P.
By: Vector Fund Management II, L.L.C., its
General Partner
By: BARCLAY A. PHILLIPS
------------------------------
Print Name: BARCLAY A. PHILLIPS
----------------------
Title: Managing Director
---------------------------
MOSAIX VENTURES, LP
By: Mosiax Ventures Management, LLC,
its General Partner
By: /s/ RANJAN LAL
------------------------------
Ranjan Lal, Managing Partner
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