First Amendment to Series A Preferred Stock Purchase Agreement by and among Applied Discovery, Inc. and Purchasers

Summary

This amendment updates the original Series A Preferred Stock Purchase Agreement between Applied Discovery, Inc. and its initial investors to allow new investors—Planet Zanett Angel Fund, L.P., Craig Watjen, and Dr. George & Nancy Savage—to purchase Series A Preferred Stock. The new investors agree to be bound by the terms of the original agreement, as amended. The amendment also updates the list of purchasers and their investment amounts. All parties confirm their representations and warranties as of the new closing date. This document is effective as of September 29, 2000.

EX-10.9 2 0002.txt SERIES A PREFERRED STOCK PURCHASE AGREEMENT 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 Zanett Angel Fund, L. P., Craig Watjen and Dr. George & Nancy Savage (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. 2 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] 3 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: Michael C. Weaver Title: President Address: 1756 - 1147H Street Southeast Suite 125 Bellevue, WA 98004 4 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: John P. Rigas Title: Managing Member Address: 76 Fifth Avenue Suite 4605 New York, NY 10153 APPLIED DISCOVERY PARTNERS, L.P. By: Applied Discovery Management LLC its general partner By: -------------------------------------- Name: John P. Rigas Title: Managing Member Address: 76 Fifth Avenue Suite 4605 New York, NY 10153 5 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 ZANETT ANGEL FUND, L.P. By: -------------------------------------- Its: General Partner By: -------------------------------------- Name: David McCarthy Title: CEO Address: 135 East 57th Street New York, NY 10022 CRAIG WATJEN -------------------------------------------- Address: 14571 SE 51st Street Bellevue WA 98006 DR. GEORGE & NANCY SAVAGE -------------------------------------------- -------------------------------------------- Address: 1180 Westridge Drive Portola Valley, CA 94208 6 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 Daniel L. Eilers 20,000 $ 20,000 Audrey MacLean and Michael 50,000 $ 50,000 M. Clair, as trustees, or their successors, of the Audrey MacLean and Michael Clair Trust Agreement UAD 12/1/90 Stanley J. Meresman and Sharon 50,000 $ 50,000 A. Meresman, Trustees of the Meresman Family Trust U/D/T Dated 9/13/1989 Ashfaq Munshi 50,000 $ 50,000 Robert D. Selvi and Sandra 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 Zanett Angel Fund, L. P 500,000 500,000 Craig Watjen 475,000 475,000 Dr. George & Nancy Savage 25,000 25,000 ---------- ---------- TOTAL: ADDITIONAL 3,500,000 $3,500,000 CLOSING ---------- ---------- TOTAL: INITIAL AND 5,070,000 $5,070,000 ADDITIONAL CLOSING 7