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Exhibit 10.3
AMENDMENT NO. 1 TO
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
This Amendment No. 1 to Amended and Restated Shareholders' Agreement
("Amendment") is made as of April 28, 2000, with reference to the Amended and
Restated Shareholders' Agreement dated as of April 7, 2000 (the "Agreement").
The parties to this Amendment are Discovery Partners International, Inc.
(formerly known as IRORI), a California corporation (the "Company"), the holders
of shares of the Company's Common Stock listed on Exhibit A to the Agreement
(each of which is herein referred to as a "Shareholder," which term includes his
or her heirs, executors, guardians, successors and assigns), the investors which
purchased shares of the Company's Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred
Stock (the "Existing Investors") and Axys Pharmaceuticals, Inc., a Delaware
corporation ("Axys"). Capitalized terms used herein which are not defined herein
shall have the definition ascribed to them in the Agreement.
RECITALS
A. The Company, DPII Newco, LLC, a Delaware limited liability company
("Merger Sub"), Axys and Axys Advanced Technologies, Inc., a Delaware
corporation ("AAT") have entered into that certain Agreement and Plan of Merger,
dated as of April 11, 2000 (the "Merger Agreement") pursuant to which Merger Sub
is being merged with and into AAT with the consequence that AAT will become a
wholly-owned subsidiary of the Company.
B. As consideration for the acquisition of AAT from Axys pursuant to the
Merger Agreement, the Company is, among other things, issuing shares of its
Common Stock to Axys.
In consideration of the foregoing and the promises and covenants
contained herein and other good and valuable consideration the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Additional Parties to the Agreement. Axys hereby enters into and
becomes a party to the Agreement.
2. Amendment to Agreement. All references to "Investors" in the
Agreement shall be deemed to include and make reference to Axys. Also,
notwithstanding anything in the Agreement to the contrary, Axys shall be allowed
to make a bona fide pledge of its Company Common Stock and Axys' rights under
the Agreement may be assigned to any person if both the following conditions
apply: (i) the assignment to such person is part of the enforcement against
Axys' shares of Company Common Stock of a security interest which Axys had, via
a bona fide pledge, granted to a lender, and (ii) the assignee shall have
executed a written agreement, reasonably satisfactory in form and substance to
the Shareholders, the Existing Investors and the Company, pursuant to which such
person becomes a party to the Agreement (as then amended to
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date) and agrees to be bound by all the burdens thereof as if such assignee was
an Investor thereunder.
3. Reincorporation. Without limitation on any other rights of
assignment, the parties acknowledge that if the Company reincorporates in
Delaware the Agreement shall be assigned to the new Delaware corporation and the
rights and obligations of the parties shall persist as if all references in the
Agreement to "the Company" were references to such Delaware corporation.
4. Effect of Amendment. Except as amended and set forth above, the
Agreement shall continue in full force and effect.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each which will be deemed an original, and all of which together
shall constitute one and the same instrument.
6. Severability. If one or more provisions of this Amendment are held to
be unenforceable under applicable law, such provision shall be excluded from
this Amendment and the balance of the Amendment shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
7. Entire Agreement. This Amendment, together with the Agreement,
constitutes the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof.
8. Governing Law. This Amendment shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment is hereby executed as of the date
first written above.
DISCOVERY PARTNERS INTERNATIONAL, INC. (formerly
known as IRORI), a California corporation
By: /s/ Xxxxxxxx Xxxxxxxxx
-----------------------------------------------
Xxxxxxxx Xxxxxxxxx, Chief Executive Officer
Address: 0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
SHAREHOLDERS: --------------------------------------------------
Dr. Xxxxxxx Xxxx
Address: Scripps Research Institute
BCC405
00000 Xxxxx Xxxxxx Xxxxx Xxxx
Xx Xxxxx, XX 00000
/s/ X. X. Xxxxxxxx
--------------------------------------------------
X.X. Xxxxxxxx
Address: Scripps Research Institute
BCC405
00000 Xxxxx Xxxxxx Xxxxx Xxxx
Xx Xxxxx, XX 00000
ENTERPRISE PARTNERS III, L.P.
By: Enterprise Management Partners III, L.P.,
Its General Partner
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
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ENTERPRISE PARTNERS III, L.P.
INVESTORS:
By: Enterprise Management Partners III, L.P.,
Its General Partner
By: /s/ Senyei Senyei
---------------------------------------
General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: Enterprise Management Partners III, L.P.,
Its General Partner
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
XXXXXXXX VIII,
a California Limited Partnership
By: Xxxxxxxx VIII Management, L.L.C.,
a Delaware limited liability
company, its general partner
By: /s/ A. Xxxxx Xxxxxxxx, III
----------------------------------------
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXXXXXX ASSOCIATES FUND II,
a California limited partnership
By: /s/ A. Xxxxx Xxxxxxxx, III
-----------------------------------------------
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
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CROSSPOINT VENTURE PARTNERS-1996
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
General Partner
Address: 00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
CROSSPOINT VENTURE PARTNERS LS-1997
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
General Partner
Address: 00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
AGILENT TECHNOLOGIES, INC., f/k/a
Hewlett-Packard Company
By:
-----------------------------------------------
Its:
----------------------------------------------
Address: Mail Stop 20 BQ
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx, Legal Counsel
XXXXXXX-XXXXX SQUIBB COMPANY
By:
Address: X.X. Xxx 0000
Xxxxx 000 & Province Line Road
Princeton, NJ 08543-4000
Attn: Vice President and Senior Counsel,
Pharmaceutical Research Institute and
Worldwide Strategic Business
Development
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
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XXXXXX X. XXXXXXX
Address: Xxxxxxx, Phleger & Xxxxxxxx, LLP
00000 Xx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
AXYS PHARMACEUTICALS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice President
Address: 000 Xxxxxxx Xxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
