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EXHIBIT 10.5
AMENDMENT TO PREFERRED AND COMMON STOCK
PURCHASE AGREEMENT
THIS AMENDMENT TO PREFERRED AND COMMON STOCK PURCHASE
AGREEMENT (the "Agreement") is entered into as of the 7th day of August, 1998,
by and among ARRAY BIOPHARMA INC., a Delaware corporation (the "Company"), the
Founders and Purchasers (as defined in the Purchase Agreement) and each of
those persons and entities, severally and not jointly, whose names are set
forth under the heading "Additional Purchasers" on the signature pages attached
hereto. The Purchasers are sometimes referred to herein as the "Prior
Purchasers", and together with the Additional Purchasers are hereinafter
collectively referred to as "Purchasers" and each individually as a
"Purchaser."
RECITALS
WHEREAS, the Company, Founders and Prior Purchasers
previously entered into that certain Preferred and Common Stock Purchase
Agreement (the "Purchase Agreement"), dated as of May 18, 1998, pursuant to
which Founders and Prior Purchasers purchased certain shares of the Company's
Series A Preferred Stock and Common Stock; and
WHEREAS, the Company has authorized the sale and issuance of
an additional 4,100,000 shares of Series A Preferred Stock to Additional
Purchasers, for an aggregate of 6,800,000 authorized shares of the Series A
Preferred Stock, and in connection therewith, the Company, Founders, Prior
Purchasers and Additional Purchasers desire to amend the Purchase Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals
and the mutual promises hereinafter set forth, the parties hereto agree as
follows:
AGREEMENT
1. Amendments. The Purchase Agreement shall be amended as
follows:
(a) Section 7.7 is hereby amended by inserting the following
after the third sentence thereof:
"The foregoing sentence shall apply to both the employees,
consultants and key management employees that are employed or
engaged on the date of this Agreement and all employees,
consultants and key management employees that the Company may
hire or engage in the future."
(b) Section 7.8 is hereby amended by deleting the first
sentence in its entirety and inserting the following in lieu thereof:
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"In addition to any vote or consent of shareholders or
directors required by law or the Company's Amended
Certificate, so long as any originally issued Series A
Preferred Stock remains outstanding, the consent of the
holders of two thirds of the then-outstanding shares of the
Series A Preferred Stock and of the shares of Common Stock
held by the Founders, each voting as a class, either in
writing without a meeting or by vote at any meeting called
for the purpose, shall be necessary for a period of two years
commencing on the date of this Agreement for effecting,
validating or permitting (i) any consolidation or merger
involving the Company (other than a consolidation or merger
in which the Company is the surviving entity and no change in
the capital stock or ownership of the Company occurs), (ii)
any transaction or series of transactions in which an excess
of 50% of the Company's voting power is transferred, (iii)
any dissolution, liquidation, or winding up of the Company,
or (iv) any sale of more than 50% of the assets of the
Company, or any agreement to become so obligated. After the
expiration of the two year period specified in the foregoing
sentence, in addition to any vote or consent of shareholders
or directors required by law or the Company's Amended
Certificate, so long as any originally issued Series A
Preferred Stock remains outstanding, the consent of the
holders of two thirds of the then-outstanding shares of the
Series A Preferred Stock and a majority of the
then-outstanding shares of Common Stock, each voting as a
class, either in writing without a meeting or by vote at any
meeting called for the purpose, shall be necessary for
effecting, validating or permitting (i) any consolidation or
merger involving the Company (other than a consolidation or
merger in which the Company is the surviving entity and no
change in the capital stock or ownership of the Company
occurs), (ii) any transaction or series of transactions in
which an excess of 50% of the Company's voting power is
transferred, (iii) any dissolution, liquidation, or winding
up of the Company, or (iv) any sale of more than 50% of the
assets of the Company, or any agreement to become so
obligated."
(c) A new Section 7.11 shall be added that reads as follows:
"The Company shall retain a "Big Five Accounting Firm" as its
principal outside accountants."
2. Interpretation. Except as expressly amended by this Agreement, the
Purchase Agreement shall remain in full force and effect without change,
provided, however, that the Additional Purchasers shall be deemed to be
Purchasers for all purposes of the Purchase Agreement.
3. Counterparts. This Agreement 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above first written.
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COMPANY: ADDITIONAL PURCHASERS:
ARRAY BIOPHARMA INC., a Delaware FRAZIER HEALTHCARE II, L.P.
corporation
By: /s/ KEVIN KOCH By: /s/ ALAN D. FRAZIER
-------------------------------- ------------------------------
Kevin Koch, Ph.D., President Print Name: Alan D. Frazier
----------------------
Title: Member, Frazier Management, L.L.C.
--------------------------------
Member, FHM II, L.L.C.
--------------------------------
General Partner, Frazier Healthcare II, L.P.
--------------------------------
ARCH VENTURE FUND III, L.P.
By: Arch Venture Partners LLC, its Managing
Director
By: /s/ ROBERT NELSEN
------------------------------
Print Name: Robert 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
------------------------------
Print Name: Jason S. Fisherman
----------------------
Title: Vice President
---------------------------
MITSUI & CO. (U.S.A.), INC.
By: /s/ YOICHIRO ENDO
----------------------------
Print Name: Yoichiro Endo
--------------------
Title: General Manager
-------------------------
Corporate Development Dept.
</TABLE>
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PURCHASERS:
FALCON TECHNOLOGY PARTNERS, L.P., a
Delaware limited partnership
By: /s/JAMES L. RATHMANN
------------------------------------
James L. Rathmann, General Partner
BOULDER VENTURES II, L.P., a Delaware
limited partnership
By: /s/ KYLE LEFKOFF
------------------------------------
Kyle Lefkoff, General Partner
BOULDER VENTURES II (ANNEX), L.P., a
Delaware limited partnership
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
FOUNDERS:
/s/ DAVID SNITMAN
---------------------------------------
DAVID SNITMAN, PH.D.
/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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date above first written.
PURCHASER:
By: /s/ FRANK A. BONSAL
-----------------------------------
Frank A. Bonsal, Jr.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date above first written.
PURCHASER:
By: /s/ RICHARD J. DALY
-----------------------------------
Richard J. Daly
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date above first written.
PURCHASER:
By: /s/ MICHAEL CARUTHERS
-----------------------------------
Michael Caruthers
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IN WITNESS WHEREOF, the party hereto has executed this Agreement as of the date
above first written.
ADDITIONAL PURCHASER:
By: /s/ THERESA KOCH
-----------------------------------
Theresa Koch
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IN WITNESS WHEREOF, the party hereto has executed this Agreement as of the date
above first written.
ADDITIONAL PURCHASER:
By: /s/ CHRISTOPHER D. OZEROFF
-----------------------------------
Christopher D. Ozeroff
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IN WITNESS WHEREOF, the party hereto has executed this Agreement as of the date
above first written.
ADDITIONAL PURCHASER:
By: /s/ WILLIAM R. ROBERTS
-----------------------------------
William R. Roberts
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