EXHIBIT 10.9
APPLIED DISCOVERY, INC.
FIRST AMENDMENT TO
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
September 29, 2000
APPLIED DISCOVERY, INC.
FIRST AMENDMENT TO
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
This First Amendment (the "First Amendment") to Series A Preferred Stock
Purchase Agreement, dated as of the 28th day of January, 2000 (the "Agreement")
by and between APPLIED DISCOVERY, INC., a Washington corporation (the "Company
"), and the investors listed on Exhibit A thereto (each a "Initial Purchaser"
and collectively, the "Initial Purchasers") (the Initial Purchasers and the
Company, collectively the "Parties"), is dated as of September 29, 2000 and is
among the Parties and Planet Xxxxxx Xxxxx Fund, L. P., Xxxxx Xxxxxx and Xx.
Xxxxxx & Xxxxx Xxxxxx (each a "New Purchaser" and collectively, the "New
Purchasers"),
Whereas, the Initial Purchasers entered into the Agreement with the
Company on or about January 28, 2000, which provided for a certain Additional
Closing and the sale of Additional Stock to Applied Discovery Partners, L. P.;
Whereas, the signatures of the Purchasers hereon, as indicated on the
signature page hereof, represent in excess of the majority of the holders of the
Stock in accordance with Section 8.9 of the Agreement and thereby are authorized
to represent the Initial Purchases for the purposes hereof; and
Whereas, the Parties desire to amend the provisions of the Agreement to
permit the New Purchasers to purchase Stock in the Company, and the New
Purchasers each desire to purchase Stock in the Company and be bound by the
terms of the Agreement, as amended by the First Amendment, and such other
documents and instruments as may be requested or required,
Now, therefore, in consideration of the foregoing recitals and covenants
and understandings herein, the parties hereto agree as follows:
1. Definitions. Except to the extent defined or modified hereby, defined
terms herein shall have the same meaning as given such terms in the Agreement.
2. Amendment To Exhibit A. Exhibit A of the Agreement shall be nullified
and replaced in its entirety with First Amendment To Exhibit A, attached hereto,
and the investors listed thereon shall be deemed hereafter to each be a
"Purchaser" and collectively, the "Purchasers" for purposes of the Agreement and
the First Amendment.
3. Assumption of Agreements. The New Purchasers each agree to assume, be
bound by and execute such agreements and instruments as may be required by
counsel to the Company to effect the intent of this First Amendment, such
documents to include, without limitation, the Related Agreements.
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4. Conditions of Closing, Representation and Warranties.
4.1 New Purchasers. The New Purchasers each, independently and
solely on their own behalf, represent that the conditions of closing and the
representations and warranties contained in Section 5 of the Agreement as
regards each New Purchaser are true and correct as of the date of the Additional
Closing.
4.2 Company. Company represents that the conditions of close
representations and warranties contained in Section 6 of the Agreement are true
and correct of the Additional Closing, except as set forth on Exhibit B hereto.
5. Entire Agreement. This First Amendment, the Agreement, the Related
Agreement documents referred to herein constitute the entire agreement between
the parties hereto pe subject matter hereof, and any and all other written or
oral agreements relating to the hereof existing between the parties hereto are
expressly canceled.
[Remainder of Page Intentionally Left Blank]
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The following party has executed and consents to this First Amendment to
Series A Preferred Stock Purchase Agreement as of the date first above written.
COMPANY:
APPLIED DISCOVERY, INC.
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
Address: 1756 - 0000X Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
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The following party has executed and consents to this First Amendment to
Series A Preferred Stock Purchase Agreement as of the date first above written.
PURCHASERS:
ZILKHA VENTURE PARTNERS, L.P.
By: Zilkha Ventures, LLC
its general partner
By: AIMC LLC
its managing member
By:
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Member
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
APPLIED DISCOVERY PARTNERS, L.P.
By: Applied Discovery Management LLC
its general partner
By:
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Member
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
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The undersigned hereby consents to and agrees to be bound by the terms and
conditions of the First Amendment to Series A Preferred Stock Purchase Agreement
as of the date first above written.
Acknowledged and Accepted:
PLANET XXXXXX XXXXX FUND, L.P.
By:
--------------------------------------
Its: General Partner
By:
--------------------------------------
Name: Xxxxx XxXxxxxx
Title: CEO
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
XXXXX XXXXXX
--------------------------------------------
Address:
00000 XX 00xx Xxxxxx
Xxxxxxxx XX
00000
XX. XXXXXX & XXXXX XXXXXX
--------------------------------------------
--------------------------------------------
Address:
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, XX
00000
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FIRST AMENDMENT TO EXHIBIT A
SCHEDULE OF PURCHASERS
SHARES OF SERIES
A
PURCHASERS PREFERRED STOCK INVESTMENT AMOUNT
---------- ---------------- -----------------
INITIAL CLOSING
Zilkha Venture Partners, L.P. 1,375,000 $1,375,000
Xxxxxx X. Xxxxxx 20,000 $ 20,000
Xxxxxx XxxXxxx and Xxxxxxx 50,000 $ 50,000
X. Xxxxx, as trustees, or their
successors, of the Xxxxxx
XxxXxxx and Xxxxxxx Xxxxx
Trust Agreement UAD 12/1/90
Xxxxxxx X. Xxxxxxxx and Xxxxxx 50,000 $ 50,000
X. Xxxxxxxx, Trustees of the
Meresman Family Trust U/D/T
Dated 9/13/1989
Xxxxxx Xxxxxx 50,000 $ 50,000
Xxxxxx X. Xxxxx and Xxxxxx A 25,000 $ 25,000
Selvi
TOTAL: INITIAL CLOSING 1,570,000 $1,570,000
ADDITIONAL CLOSING
Applied Discovery Partners, L. P 2,375,000 $2,375,000
Zilkha Venture Partners, L.P. 125,000 125,000
Planet Xxxxxx Xxxxx Fund, L. P 500,000 500,000
Xxxxx Xxxxxx 475,000 475,000
Xx. Xxxxxx & Xxxxx Xxxxxx 25,000 25,000
---------- ----------
TOTAL: ADDITIONAL 3,500,000 $3,500,000
CLOSING ---------- ----------
TOTAL: INITIAL AND 5,070,000 $5,070,000
ADDITIONAL CLOSING
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