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EXHIBIT 10.39
AMENDMENT NO. 1 TO THE CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
WHEREAS, effective as of February 27, 1998, Oncormed, Inc., a
Delaware corporation (the "Company") and Southbrook International Investments,
Ltd., a corporation organized and existing under the laws of the British Virgin
Islands ("Southbrook"), Xxxxxxxx Investments L.P., a Delaware limited
partnership ("Xxxxxxxx"), Montrose Investments, Ltd., a Cayman Islands exempt
company ("Montrose"), Xxxxx Xxxxxxx Strategic Growth Fund, L.P., a New York
limited partnership ("Xxxxx Xxxxxxx XX"), and Xxxxx Xxxxxxx Strategic Growth
Fund, Ltd., a Cayman Islands exempt company ("Xxxxx Xxxxxxx Limited"), entered
into that certain Convertible Preferred Stock Purchase Agreement (the
"Agreement"). Southbrook, Westover, Montrose, Xxxxx Xxxxxxx XX, Xxxxx Xxxxxxx
Limited and Incyte Pharmaceuticals, Inc., a Delaware corporation ("Incyte") are
each referred to herein as a "Purchaser" and are collectively referred to
herein as the "Purchasers";
WHEREAS, on March 6, 1998, Incyte exercised certain rights
provided for in the Agreement to purchase shares of the Company's 6% Series A
Convertible Preferred Stock, thereby becoming a party to the Agreement;
WHEREAS, pursuant to Section 5.4 of the Agreement, no
provision of the Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by both the Company and the
Purchasers; and
WHEREAS, the Company and the Purchasers desire to amend
Section 3.16 of the Agreement in the following manner.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Amendment No. 1 to the Agreement (the
"Amendment"), the parties agree as set forth below.
A. AMENDMENTS TO AGREEMENT. Section 3.16 of the Agreement is hereby
amended to read in its entirety as follows:
"3.16 Incyte Conversion Limitation. In no event shall
Incyte be permitted to convert any shares of Preferred Stock
for Common Stock, the number of which shares of Common Stock,
when added to the number of shares of Common Stock actually
held by Incyte immediately prior to such conversion, would
equal or exceed 9.95% of the number of shares of Common Stock
then issued and outstanding immediately after such conversion,
unless (i) concurrently with such conversion or immediately
thereafter, there is effected (A) a consolidation or merger of
the Company with or into any other person pursuant to which
the holders of the shares of capital stock of the Company
entitled to vote generally in the election of directors of the
Company immediately before such transaction hold, immediately
after such transaction,
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less than 50% of the total voting power of all shares of
capital stock of the surviving corporation entitled to vote
generally in the election of directors of the surviving
corporation, (B) the sale or transfer of all or substantially
all of the assets of the Company in which the consideration
therefor is equity or equity equivalent securities, or (C) any
other transaction involving the Company pursuant to which the
Common Stock is converted into the right to receive other
securities, cash or property or a combination thereof or (ii)
immediately prior to such conversion the number of shares of
Common Stock actually held by Incyte (without giving effect to
concurrent conversions by Incyte of Company securities by
which Incyte will obtain additional Common Stock) does not
equal or exceed 10% of the number of shares of Common Stock
then issued and outstanding and at the time of such exercise
there is pending a tender or exchange offer by a third party
for some or all of the Common Stock (such number of shares of
Preferred Stock in excess of the 9.95% limitation set forth
above to be referred to herein as the "Incyte Excess Shares").
To the extent that the limitation contained in this Section
3.16 applies, the Company shall use commercially reasonable
efforts to either (i) facilitate the transfer of the Incyte
Excess Shares to a third party at a price per share on an
as-converted basis equal to the Per Share Market Value for the
Trading Day immediately preceding the Conversion Date, or (ii)
redeem, from funds legally available therefor at the time of
such redemption, the Incyte Excess Shares at a price per share
equal to the product of (i) the Per Share Market Value for the
Trading Day immediately preceding the Conversion Date and (ii)
the Conversion Ratio calculated on the Conversion Date. "
B. MISCELLANEOUS.
1. Except as amended hereby, the Agreement shall remain
in full force and effect.
2. Except as the context may otherwise require,
capitalized terms used herein and not defined herein shall have the meaning
ascribed to such term in the Agreement.
3. This Amendment shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York without
regard to the principles of conflicts of law thereof. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the federal courts
sitting in the City of New York, borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this Amendment and agrees that such
service shall constitute
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good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law.
4. This Amendment may be signed in two or more
counterparts, each of which shall be deemed 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 of
Amendment as of March __, 1998.
ONCORMED, INC. SOUTHBROOK INTERNATIONAL INVESTMENTS,
LTD.
By:/s/ L. XXXXXX XXXXXXXX By: /s/ XXXXXXX X. XXXXXXXXX
---------------------- ----------------------------------
Name: L. XXXXXX XXXXXXXX Name: XXXXXXX X. XXXXXXXXX
Title: VP & CFO Title: ATTORNEY-IN-FACT
XXXXXXXX INVESTMENTS L.P.
By: /s/ XXXXXXX X. XXXX
----------------------------------
Name: XXXXXXX X. XXXX
Title: AUTHORIZED SIGNATORY
MONTROSE INVESTMENTS, LTD.
By: /s/ XXXXXXX X. XXXX
----------------------------------
Name: XXXXXXX X. XXXX
Title: AUTHORIZED SIGNATORY
XXXXX XXXXXXX STRATEGIC GROWTH FUND,
L.P.
By:/s/ XXXXXXXX X. XXXX
----------------------------------
Name: XXXXXXXX X. XXXX
Title: PRINCIPAL
XXXXX XXXXXXX STRATEGIC GROWTH FUND,
LTD.
By:/s/ XXXXXXXX X. XXXX
----------------------------------
Name: XXXXXXXX X. XXXX
Title: PRINCIPAL
INCYTE PHARMACEUTICALS, INC.
By:
----------------------------------
Name:
Title:
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