1
EXHIBIT 10.14
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, X.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 if instituted against Borrower, such proceedings are
allowed against Borrower or are consented to
2
by Xxxxxxxx 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.
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
-2-
3
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/ X.X. XXXXXXXX
----------------------------
X.X. Xxxxxxxx, Ph.D.
-3-
4
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of May 18, 1998, between X.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.
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
5
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 deem necessary or
advisable to accomplish the purpose hereof, which appointment is irrevocable
and coupled with an interest.
-2-
6
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/ X.X. XXXXXXXX
--------------------------
X.X. Xxxxxxxx, Ph.D.
COMPANY:
ARRAY BIOPHARMA INC.,
a Delaware corporation
By: /s/ XXXXX XXXX
-----------------------
Its:
----------------------
-3-
7
IRREVOCABLE STOCK POWER
KNOW ALL MEN BY THESE PRESENTS:
That X.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.
/s/ X.X. XXXXXXXX
-----------------------------
X.X. Xxxxxxxx, Ph.D.
STATE OF
--------------- )
COUNTY OF )SS.
- ------------- )
The foregoing instrument was signed and acknowledged before me this ___ day of
________, 1998, by X.X. Xxxxxxxx, Ph.D.
Witness by hand and official seal
My commission expires ______________.
---------------------------------------
Notary
8
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
===============================================================================
State of California
------------------
County of San Diego
-----------------
On June 25, 1998 before me, Xxxx X. Xxxxxxxx, Notary Public,
------------- ---------------------------------
DATE NAME, TITLE OF OFFICER o E.G.,
"XXXX XXX, NOTARY PUBLIC"
personally appeared X.X. XXXXXXXX,
----------------------------------------
NAME(S) OF SIGNER(S)
[X] personally known to me - OR - [ ] proved to me on the basis of satisfactory
evidence to be the person whose name is
subscribed to the within instrument and
acknowledged to me that he executed the
same in his authorized capacity, and that
by his signature on the instrument the
person, or the entity upon behalf of which
the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ XXXX X. XXXXXXXX
-----------------------------------------
SIGNATURE OF NOTARY
[STAMP]
XXXX X. XXXXXXXX
COMM.#1031036
Notary Public - California
SAN DIEGO COUNTY
My Comm. Expires JUL 25, 1998
================================== OPTIONAL ===================================
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
ARRAY BIOPHARMA INC.
[X] INDIVIDUAL
[ ] CORPORATE OFFICER IRREVOCABLE STOCK POWER
--------------------------------------
-------------------------- TITLE OR TYPE OF DOCUMENT
TITLE(S)
[ ] PARTNER(S) [ ] LIMITED ONE
[ ] GENERAL --------------------------------------
[ ] ATTORNEY-IN-FACT NUMBER OF PAGES
[ ] TRUSTEE(S)
[ ] GUARDIAN/CONSERVATOR NONE
[ ] OTHER: --------------------------------------
-------------------- DATE OF DOCUMENT
--------------------------
-------------------------- NONE
--------------------------------------
SIGNER IS REPRESENTING: SIGNER(S) OTHER THAN NAMED ABOVE
NAME OF PERSON(S) OR ENTITY(IES)
-------------------------------
-------------------------------
===============================================================================
9
[CERTIFICATE]
The shares represented by this certificate are subject to the restrictive
legends on the reverse side hereof.
================================================================================
-------------------------------------------
INCORPORATED UNDER THE LAWS OF THE STATE OF
-------------------------------------------
DELAWARE
-------- ---------
NUMBER SHARES
C-6 648,404
-------- ---------
---------------------------------------------------------------------
ARRAY BIOPHARMA INC.
Common Stock
SHARES ARE WITH $.001 PAR VALUE
---------------------------------------------------------------------
THIS CERTIFIES THAT X.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
transferrable 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 hereunder
affixed this 18th day of May AD. 1998
/s/ /s/ XXXXX XXXX
---------------------------------- --------------------------------------
SECRETARY PRESIDENT
================================================================================