-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, V3i2AxihN5ofdk9VT233OJDzC0GlcfXw+k1BrxpjbQ0fzi8g1zb8LEvvLdruVGBA +qSIG5Q+wLgcjDIhEWkCkw== 0001125282-03-001816.txt : 20030213 0001125282-03-001816.hdr.sgml : 20030213 20030213172106 ACCESSION NUMBER: 0001125282-03-001816 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20030213 GROUP MEMBERS: AXYS PHARMACEUTICALS, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DISCOVERY PARTNERS INTERNATIONAL INC CENTRAL INDEX KEY: 0001113148 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 330655706 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-60943 FILM NUMBER: 03561027 BUSINESS ADDRESS: STREET 1: 9640 TOWNE CENTRE DRIVE CITY: SAN DIEGO STATE: CA ZIP: 92121 MAIL ADDRESS: STREET 1: 9640 TOWNE CENTRE DRIVE CITY: SAN DIEGO STATE: CA ZIP: 92121 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: APPLERA CORP CENTRAL INDEX KEY: 0000077551 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 061534213 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 301 MERRITT 7 CITY: NORWALK STATE: CT ZIP: 06851 BUSINESS PHONE: 2038402000 MAIL ADDRESS: STREET 1: 301 MERRITT 7 CITY: NORWALK STATE: CT ZIP: 06851 FORMER COMPANY: FORMER CONFORMED NAME: PERKIN ELMER CORP DATE OF NAME CHANGE: 19930601 FORMER COMPANY: FORMER CONFORMED NAME: PE CORP DATE OF NAME CHANGE: 19990129 SC 13D 1 b322996_13d.txt INFORMATION TO BE INCLUDED IN STATEMENTS FILED UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13(d)-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(a) DISCOVERY PARTNERS INTERNATIONAL, INC. -------------------------------------- (Name of Issuer) Common Stock, $0.001 par value ------------------------------ (Title of Class of Securities) 254675 10 1 -------------- (CUSIP Number) William B. Sawch, Esq. Senior Vice President and General Counsel Applera Corporation 301 Merritt 7 Norwalk, Connecticut 06851-1070 (203) 840-2000 ------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 16, 2001 ------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box |_|. (Page 1 of 13 Pages) SCHEDULE 13D
- --------------------------------------------------------------- ---------------------------------- --------------------------------- CUSIP No. 254675 10 1 Page 2 of 13 - --------------------------------------------------------------- ---------------------------------- --------------------------------- - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY) Axys Pharmaceuticals, Inc. 22-2969941 - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |_| - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 3. SEC USE ONLY - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 4. SOURCES OF FUNDS* OO - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) |_| - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ---------------- ------------------------------------------------------------------------------------------------------------------- - -------------------- ------------ -------------------------------------------------------------------------------------------------- NUMBER OF SHARES Item 7. SOLE VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,422,000* WITH ------------ -------------------------------------------------------------------------------------------------- Item 8. SHARED VOTING POWER 0 ------------ -------------------------------------------------------------------------------------------------- Item 9. SOLE DISPOSITIVE POWER 7,422,000* ------------ -------------------------------------------------------------------------------------------------- Item 10. SHARED DISPOSITIVE POWER 0 - -------------------- ------------ -------------------------------------------------------------------------------------------------- - -------------- --------------------------------------------------------------------------------------------------------------------- Item 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,422,000* - -------------- --------------------------------------------------------------------------------------------------------------------- Item 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------------- --------------------------------------------------------------------------------------------------------------------- Item 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 30.45% - -------------- --------------------------------------------------------------------------------------------------------------------- Item 14. TYPE OF REPORTING PERSON* CO - -------------- --------------------------------------------------------------------------------------------------------------------- * Includes 200,000 shares issuable uon exercise of currently exercisable warrants.
SCHEDULE 13D
- --------------------------------------------------------------- ---------------------------------- --------------------------------- CUSIP No. 254675 10 1 Page 3 of 13 - --------------------------------------------------------------- ---------------------------------- --------------------------------- - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Applera Corporation 06-1534213 - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (b) |_| - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 3. SEC USE ONLY - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 4. SOURCES OF FUNDS* Not applicable - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) |_| - ---------------- ------------------------------------------------------------------------------------------------------------------- Item 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ---------------- ------------------------------------------------------------------------------------------------------------------- - -------------------- ------------ -------------------------------------------------------------------------------------------------- NUMBER OF SHARES Item 7. SOLE VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 WITH ------------ -------------------------------------------------------------------------------------------------- Item 8. SHARED VOTING POWER 0 ------------ -------------------------------------------------------------------------------------------------- Item 9. SOLE DISPOSITIVE POWER 0 ------------ -------------------------------------------------------------------------------------------------- Item 10. SHARED DISPOSITIVE POWER 0 - -------------------- ------------ -------------------------------------------------------------------------------------------------- - -------------- --------------------------------------------------------------------------------------------------------------------- Item 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON Beneficial ownership of all shares disclaimed by Applera Corporation - -------------- --------------------------------------------------------------------------------------------------------------------- Item 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------------- --------------------------------------------------------------------------------------------------------------------- Item 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Not applicable (see 11 above) - -------------- --------------------------------------------------------------------------------------------------------------------- Item 14. TYPE OF REPORTING PERSON* CO - -------------- ---------------------------------------------------------------------------------------------------------------------
STATEMENT PURSUANT TO RULE 13D-1 OF THE GENERAL RULES AND REGULATIONS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED Item 1. Security and Issuer. This statement on Schedule 13D (the "Schedule 13D") relates to the common stock, par value $0.001 per share (the "Common Stock"), of Discovery Partners International, Inc., a Delaware corporation (the "Issuer"). The principal executive offices of the Issuer are located at 9640 Towne Centre Drive, San Diego, California 92121. Item 2. Identity and Background. This Schedule 13D is being filed by Axys Pharmaceuticals, Inc., a Delaware corporation ("Axys"), and Applera Corporation, a Delaware corporation ("Applera" and together with Axys, the "Reporting Persons"). Axys is a wholly-owned subsidiary of Applera. The address of the principal business and principal office of Axys is 180 Kimball Way, South San Francisco, California 94080. The principal business activities of Axys are drug discovery and development. The address of the principal business and principal office of Applera is 301 Merritt 7, Norwalk, Connecticut 06851-1070. Applera comprises two operating groups, the Celera Genomics Group and the Applied Biosystems Group. The principal business of the Celera Genomics Group is integrating advanced technologies to discover and develop new therapeutics. The principal business of the Applied Biosystems Group is to develop and market instrument-based systems, reagents, software, and contract services to the life science industry and research community. Celera Diagnostics, a 50/50 joint venture between the Applied Biosystems Group and the Celera Genomics Group, is focused on discovery, development, and commercialization of novel diagnostic products. The name; business address; present principal occupation or employment; name, principal business and address of any corporation or other organization in which such employment is conducted; and citizenship of each executive officer and director of each of the Reporting Persons is set forth in Schedules I and II hereto. The information contained in such Schedules is incorporated herein by reference. During the last five years, neither of the Reporting Persons nor, to their knowledge, any of their respective executive officers or directors listed in Schedules I and II hereto has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws. Page 4 of 13 Page 5 of 13 Item 3. Source and Amount of Funds and Other Consideration. Pursuant to the terms of an agreement and plan of merger, dated April 11, 2000 (a copy of which is included as Exhibit 1 hereto) (the "Discovery Merger Agreement"), a subsidiary of the Issuer was merged with and into a subsidiary of Axys (the "Discovery Merger"). The Axys subsidiary was the surviving entity in the merger and became a wholly-owned subsidiary of the Issuer at the effective time of the merger. In connection with the Discovery Merger, Axys received 7,425,000 shares of Common Stock, $50,000 in cash, $550,000 in the form of a note receivable, and a warrant to purchase 200,000 additional shares of Common Stock at a purchase price of $8.00 per share (the "Warrant") (a copy of which is included as Exhibit 2). On September 22, 2000, Axys issued $26,000,000 in Senior Secured Convertible Notes (the "Notes"), which bear interest at 8% per annum and mature on October 1, 2004. Notes having an aggregate principal amount of $10.0 million were repurchased by Axys in January 2002 after the Axys Merger (as defined below). The remaining outstanding Notes are secured by 6,682,500 shares of the Common Stock held by Axys and other collateral specified in the Indenture (as defined below). Copies of the Indenture, dated as of September 22, 2000, between Axys and U.S. Bank Trust National Association, as trustee, and the First Supplemental Indenture, dated as of September 22, 2000 (collectively, the "Indenture") with respect to the Notes are included as Exhibits 3 and 4, respectively. Pursuant to the Indenture, Axys has the right to substitute other appropriate collateral for the pledged Common Stock and the other specified collateral. Under the Indenture, if an event of default occurs and is continuing, the trustee is entitled to have the pledged Common Stock transferred into its name or that of its nominee and has the right to sell or transfer the pledged Common Stock. On November 16, 2001, pursuant to an agreement and plan of merger, dated as of June 12, 2001 (a copy of which is included as Exhibit 5 hereto) (the "Axys Merger Agreement), a wholly-owned subsidiary of Applera was merged with and into Axys (the "Axys Merger"). Applera issued 5.5 million shares of Applera Corporation - Celera Genomics Group Common Stock in exchange for all of the outstanding shares of Axys common stock. Axys was the surviving entity in the merger and became a wholly-owned subsidiary of Applera at the effective time of the merger. In connection with the Axys Merger, Applera became jointly and severally liable with Axys for the payment and performance of Axys' obligations under the Notes. On November 14, 2002, Axys deposited with the trustee government obligations which, in accordance with the terms of the Indenture, will be substituted as collateral to secure the outstanding Notes instead of the pledged Common Stock. Under the terms of the Indenture, as of February 14, 2003, Axys will be entitled to have the pledged Common Stock released upon demand. Axys intends to request such release at that time. References to, and descriptions of, the Discovery Merger Agreement, the Warrant, the Axys Merger Agreement, and the Indenture set forth above in this Item 3 are not intended to be complete and are qualified in their entirety by reference to the full text of such agreements. Item 4. Purpose of Transaction. As described in Item 3 above, Axys acquired 7,425,000 shares of Common Stock and was granted the Warrant in connection with the Discovery Merger. Axys subsequently became a wholly-owned subsidiary of Applera in the Axys Merger. Applera acquired Axys for the Page 6 of 13 purpose of acquiring the capabilities to support and accelerate Applera's Celera Genomics Group's expansion into drug discovery and development. While it is not their present intention to do so, the Reporting Persons may dispose of some or all of their interest in the securities of Issuer held by them, including the Common Stock pledged under the Indenture, in the open market, in privately negotiated transactions with third parties, through a public offering upon exercise of the registration rights outlined in Item 6 of this Schedule 13D, or otherwise, depending on market conditions and other factors. During the period commencing May 8, 2001 and ending June 8, 2001, Axys sold 203,000 shares of Common Stock on the open market at prices ranging from $5.4855 to $6.1447 per share. In addition, under Axys' 1999 Key Personnel Stock Option Plan (a copy of which is included as Exhibit 6 hereto) (the "Key Personnel Option Plan"), Axys granted certain employees the right to purchase up to a total of 371,250 shares of the Common Stock held by Axys at a set exercise price. As of the date hereof, none of these employees have exercised their purchase rights with respect to the Common Stock. Although the foregoing represents the range of activities that may be taken by the Reporting Persons with respect to the Issuer, the possible activities are subject to change at any time. All such activities would be performed in compliance with all applicable laws and regulations. Except as set forth above, none of the Reporting Persons has any current plans or proposals which relate to or would result in any actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. As of the date hereof, Axys beneficially owns 7,422,000 shares of Common Stock, representing approximately 30.45% of the outstanding shares of Common Stock, which includes (i) 7,222,000 shares of Common Stock and (ii) 200,000 shares of Common Stock underlying the Warrant, which is currently exercisable. Axys has sole power to vote and dispose of these shares of Common Stock, subject to certain restrictions contained in agreements described in Item 6 below and in the Indenture as described in Item 3 above. Axys has the sole right to receive and the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock owned by it. Axys is a wholly-owned subsidiary of Applera and, as such, Applera may be deemed to be the beneficial owner of these shares. Applera disclaims beneficial ownership of all shares of Common Stock owned by Axys. The percentage set forth in this Item 5 is calculated based on 24,372,862 total shares of Common Stock outstanding as of November 1, 2002 as reported by the Issuer. Other than as set forth in this Schedule 13D, to the knowledge of the Reporting Persons as of the date hereof, no executive officers or directors of the Reporting Persons have legal or beneficial ownership of any shares of Common Stock and there have been no transactions in the shares of Common Stock effected during the past 60 days by the Reporting Persons nor, to the knowledge of the Reporting Persons, by any executive officers or directors of the Reporting Persons, except as disclosed in this Schedule 13D. Page 7 of 13 No persons other than the Reporting Persons have the right to receive or the power to direct the receipt of dividends from, or the proceeds of sale of, securities covered by this Schedule 13D. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. The responses to Items 3 and 4 of this Schedule 13D are incorporated herein by reference. In connection with the Discovery Merger, Axys and the Issuer entered into a Standstill Agreement, dated as of April 28, 2000 (a copy of which is included as Exhibit 7 hereto) (the "Standstill Agreement"), under which Axys agreed for itself and its affiliates that, until the later of (i) the date on which Axys and its affiliates hold less than 5% of the then-outstanding Common Stock and (ii) April 28, 2010, Axys and its affiliates would not, without the Issuer's prior written consent, take certain actions including acquiring, offering or agreeing to acquire, directly or indirectly, any voting securities of the Issuer or its subsidiaries, soliciting consents or proxies from shareholders of the Issuer, or otherwise acting or seeking to control or influence the management, board of directors or policies of the Issuer, other than through the nomination of directors. Axys also agreed to vote in favor of the management slate of nominees for Issuer's board. The Standstill Agreement entitles Axys to nominate a number of persons for election as directors of the Issuer in proportion to the amount of Common Stock it holds and equal to the number of directors Axys could have elected on its own if cumulative voting were in effect, subject to certain limitations. Axys elected not to exercise its right to designate nominees for director as of the Issuer's 2002 annual meeting, although Axys retains the right to designate nominees in the future. The board of directors of the Issuer does not currently have any members serving as designees of Axys. Upon consummation of the Axys Merger, Applera became an affiliate of Axys and bound by the Standstill Agreement. Axys and the Issuer also entered into a Non-Competition and Non-Disclosure Agreement, dated as of April 28, 2000 (a copy of which is included as Exhibit 8 hereto) (the "NDA"), under which Axys has agreed that until the date on which Axys and its affiliates hold less than 15% of the then-outstanding Common Stock, subject to certain exceptions, Axys will not take certain actions including, among others, (i) directly or indirectly owning, managing, engaging in, operating or conducting or assisting any person or entity to conduct any business, or having any interest in any business, person, firm, corporation or other entity that engages, directly or indirectly, anywhere in the world, in any business that is the same as, similar to or competitive with the combinatorial chemistry business as conducted by Axys Advanced Technologies, Inc. on the date of the Discovery Merger (the "Business"), (ii) inducing or influencing, or seeking to induce or influence, persons engaged by the Issuer with the purpose of engaging such persons for Axys or a business competitive with the Issuer or the Business, (iii) engaging in certain discussions with respect to the Business with third parties known by Axys to be planning or preparing to compete with the Business, or (iv) disclosing certain confidential information. Axys is also party to a Second Amended and Restated Investors' Rights Agreement, dated April 28, 2000, as amended (a copy of which is included as Exhibit 9) (the "Investors' Rights Agreement") with the Issuer and certain other stockholders of the Issuer. The Investors' Rights Agreement provides that, subject to certain limitations and minimum offering size requirements, the stockholders holding at least 30% of the Registrable Securities (as defined in Page 8 of 13 the Investors' Rights Agreement) may require up to twice that the Issuer file a registration statement to register their securities for public resale. In addition, if the Issuer is eligible to file registration statements on Form S-3, stockholders holding at least 20% of the Issuer's outstanding Registrable Securities (as defined in the Investors' Rights Agreement) may, subject to certain limitations and minimum offering size requirements, require that the Issuer effect an unlimited number of registrations on Form S-3 with respect to their Registrable Securities. If the Issuer files a registration statement to register Common Stock on its own behalf in connection with the public offering of such securities for cash, the parties to the Investors' Rights Agreement may also request, subject to certain limitations, that their Registrable Securities be included in such registration. In connection with any registration statement filed pursuant to the Investors' Rights Agreement, the Issuer and the holders of Registrable Securities have agreed to indemnify each other against certain liabilities, including under the Securities Act of 1933, as amended. As described in Item 3 above, a portion of the Common Stock held by Axys is currently pledged under the Indenture, and may be released to Axys upon demand as of February 14, 2003. Axys intends to request such release at that time. As described in Item 4 above, Axys has granted certain employees the right to purchase a portion of the shares of Common Stock held by Axys through the Key Personnel Option Plan. References to and descriptions of the Standstill Agreement, NDA, Investors' Rights Agreement, Indenture and Key Personnel Option Plan as set forth above in this Item 6 are not intended to be complete and are qualified in their entirety by reference to the full text of such agreements. Except as set forth in this Schedule 13D, neither the Reporting Persons nor, to the knowledge of the Reporting Persons, any of the persons listed on Schedules I or II is a party to any contract, arrangement, understanding or relationship with respect to any securities of the Issuer. Material to be Filed as Exhibits. EXHIBIT DESCRIPTION - ------------ -------------------------------------------------------------- 1 Agreement and Plan of Merger dated as of April 11, 2000, among Axys, Axys Advanced Technologies, Inc., the Issuer and DPII Newco, LLC (incorporated by reference to Exhibit 2.1 to Axys' current report on Form 8-K dated May 15, 2000 (Commission file number 0-22788)). 2 Warrant to Purchase Shares of Common Stock issued by the Issuer to Axys (filed herewith). 3 Indenture dated as of September 22, 2000, between U.S. Bank Trust National Association and Axys (incorporated by reference to Exhibit 4.1 to Current Report on Form 8-K of Axys dated September 21, 2000 (Commission file number 0-22788)). 4 First Supplemental Indenture dated as of September 22, 2000, between U.S. Bank Trust National Association and Axys (incorporated by reference to Exhibit 4.2 to Current Report on Form 8-K of Axys dated September 21, 2000 (Commission file number 0-22788)). Page 9 of 13 EXHIBIT DESCRIPTION - ------------ -------------------------------------------------------------- 5 Agreement and Plan of Merger dated as of June 12, 2001, among Applera, Angel Acquisition Sub, Inc., and Axys (incorporated by reference to Exhibit 2.1 to Applera's Current Report on Form 8-K dated June 12, 2001 (Commission file number 1-4389)). 6 Axys 1999 Key Personnel Stock Option Plan (incorporated by reference to Exhibit 10.135 to Annual Report on Form 10-K of Axys for the fiscal year ended December 31, 2000 (Commission file number 0-22788)). 7 Standstill Agreement dated as of April 28, 2000 between the Issuer and Axys (incorporated by reference to Exhibit 10.12 to the Issuer's Registration Statement on Form S-1 (No. 333-36638)). 8 Second Amended and Restated Investors' Rights Agreement, dated April 28, 2000, among the Issuer, Axys and certain other investors listed therein, as amended (incorporated by reference to Exhibit 10.2 to the Issuer's Registration Statement on Form S-1 (No. 333-36638)). 9 Non-competition and Non-disclosure Agreement dated as of April 28, 2000 between the Issuer and Axys (incorporated by reference to Exhibit 10.7 to the Issuer's Registration Statement on Form S-1 (No. 333-36638)). 10 Joint Filing Agreement (filed herewith). Page 10 of 13 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. AXYS PHARMACEUTICALS, INC. By: /s/ Vikram Jog ---------------------------- Name: Vikram Jog Title: Vice President and Chief Financial Officer APPLERA CORPORATION By: /s/ Vikram Jog ---------------------------- Name: Vikram Jog Title: Corporate Controller Dated: February 13, 2003 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS AXYS PHARMACEUTICALS, INC. The following table sets forth the name, residence or business address and present principal occupation or employment of each director and executive officer of Axys Pharmaceuticals, Inc.. Each such person is a U.S. citizen, and has a business address at 180 Kimball Way, South San Francisco, California 94080. Also, the present principal occupation or employment of each of such persons is with Applera, whose principal business and address is set forth in Item 2 of this Schedule 13D. NAME AND PRESENT PRINCIPAL OCCUPATION BUSINESS ADDRESS OR EMPLOYMENT - ----------------------- ------------------------------------------------------- Board of Directors William B. Sawch Senior Vice President and General Counsel of Applera. Dennis L. Winger Senior Vice President and Chief Financial Officer of Applera. Executive Officers Who Are Not Directors David S. Block Vice President of Applera and Senior Vice President and Chief Operating Officer, Therapeutics, Celera Genomics Group. Robert F.G. Booth Vice President of Applera and Senior Vice President, Research and Development, Celera Genomics Group. Vikram Jog Corporate Controller of Applera and Vice President, Finance, Celera Diagnostics. Kathy P. Ordonez Senior Vice President of Applera, and President, Celera Genomics Group and Celera Diagnostics. Page 11 of 13 Page 12 of 13 SCHEDULE II DIRECTORS AND EXECUTIVE OFFICERS APPLERA CORPORATION The following table sets forth the name, residence or business address and present principal occupation or employment of each director and executive officer of Applera Corporation. Each such person is a U.S. citizen (except Jean-Luc Belingard who is a French citizen), and each such person has a business address at 301 Merritt 7, Norwalk, Connecticut 06851-1070. Also, unless otherwise indicated below, the present principal occupation or employment of each of such persons is with Applera, whose principal business and address is set forth in Item 2 of this Schedule 13D. As to any such person whose present principal occupation or employment is not with Applera, the following table also sets forth the name, principal business and address of the other corporation or organization in which such occupation or employment is conducted. NAME AND PRESENT PRINCIPAL OCCUPATION BUSINESS ADDRESS OR EMPLOYMENT - ----------------------- --------------------------------------------------- Board of Directors Richard H. Ayers Retired. Jean-Luc Belingard President of Beaufour Ipsen Group, a diversified French health care holding company. Its address is 42, rue du Docteur Blanche, 75016 Paris. Robert H. Hayes Philip Caldwell Professor of Business Administration, Emeritus, at the Harvard Business School. Harvard Business School is an educational institution and its address is Soldiers Field, Boston, Massachusetts 02163. Arnold J. Levine Visiting Professor at the Institute for Advanced Studies. The Institute for Advanced Studies is an educational institution and its address is Einstein Drive, Princeton, New Jersey 08540. Theodore E. Martin Retired. Carolyn W. Slayman Sterling Professor of Genetics and Deputy Dean for Academic and Scientific Affairs at Yale University School of Medicine. Yale University School of Medicine is an educational institution and its address is 333 Cedar Street, New Haven, Connecticut 06510. Orin R. Smith Retired. Georges C. St. Laurent, Jr. Principal of St. Laurent Properties, a company engaged in various real estate, agricultural, and forestry related ventures. Its address is 120 N.E. 136th Avenue, Suite 200, Vancouver, Washington 98684. James R. Tobin President and Chief Executive Officer of Boston Scientific Corporation, a medical device manufacturer. Its address is One Boston Scientific Place, Natick, Massachusetts 01760. Tony L. White Chairman, President and Chief Executive Officer of Applera. Page 13 of 13 NAME AND PRESENT PRINCIPAL OCCUPATION BUSINESS ADDRESS OR EMPLOYMENT - ----------------------- --------------------------------------------------- Executive Officers Who Are Not Directors Ugo D. DeBlasi Assistant Controller of Applera and Vice President, Finance, Celera Genomics Group. David S. Block Vice President of Applera and Senior Vice President and Chief Operating Officer, Therapeutics, Celera Genomics Group. Robert F.G. Booth Vice President of Applera and Senior Vice President, Research and Development, Celera Genomics Group. Patrick T. Carroll Vice President of Applera and Senior Vice President, Worldwide Sales, Service and Support, Applied Biosystems Group. Michael W. Hunkapiller Senior Vice President, and President, Applied Biosystems Group, of Applera. Vikram Jog Corporate Controller of Applera and Vice President, Finance, Celera Diagnostics. Robert C. Jones Vice President of Applera and Senior Vice President, R&D, Applied Biosystems Group. Barbara J. Kerr Vice President, Human Resources of Applera. Sandeep Nayyar Assistant Controller of Applera and Vice President, Finance, Applied Biosystems Group. Kathy P. Ordonez Senior Vice President, and President, Celera Genomics Group and Celera Diagnostics, of Applera. Robert P. Ragusa Vice President of Applera and Senior Vice President Global Operations, Applied Biosystems Group. William B. Sawch Senior Vice President and General Counsel of Applera. Deborah A. Smeltzer Vice President of Applera and Vice President, Knowledge Business, Applied Biosystems Group. Dennis L. Winger Senior Vice President and Chief Financial Officer of Applera. EXHIBIT INDEX EXHIBIT DESCRIPTION - ------------ -------------------------------------------------------------- 2 Warrant to Purchase Shares of Common Stock issued by the Issuer to Axys. 10 Joint Filing Agreement. EX-2 3 b322996_ex2.txt WARRANT TO PURCHASE SHARES Exhibit 2 THE WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO AN EXEMPTION TO SUCH ACT. No.00-2 Void after May 5, 2005 WARRANT TO PURCHASE SHARES OF COMMON STOCK of DISCOVERY PARTNERS INTERNATIONAL, INC. THIS CERTIFIES THAT, for value received, Axys Pharmaceuticals, Inc., together with its successors and assigns (the "Holder") is entitled to subscribe for and purchase, on the terms hereof, shares of common stock ("Common Stock") of Discovery Partners International, Inc., a California corporation (the "Company"), subject to adjustment as provided herein. This Warrant is subject to the following terms and conditions: 1. Exercise of Warrant. The terms and conditions upon which this Warrant may be exercised, and the Common Stock covered hereby (the "Warrant Stock") may be purchased, are as follows: 1.1 Term. Subject to the terms hereof, this Warrant may be exercised, in whole or in part, at any time; provided, however, that in no event may this Warrant be exercised later than 5:00 p.m. (Pacific Time) on the earliest of (A) the close of business on May 5, 2005, or (B) (i) the closing of the acquisition of the Company by another entity by means of a transaction or series of related transactions or (ii) the closing of the sale of all or substantially all of the assets of the Company, unless the Company's shareholders of record prior to such acquisition or sale shall hold at least fifty percent (50%) of the voting power of the acquiring or surviving entity immediately after such acquisition or sale (the "Exercise Period"). At least ten (10) days prior to the occurrence of an event specified in (B) of this Section 1.1, the Company shall send to the Holder notice of such event and that the Holder's rights under this Warrant shall terminate upon the occurrence of such event; provided, that if the Company sends such notice less than ten (10) days prior to the occurrence of such event, the Holder's right to exercise this Warrant shall Warrant shall be extended for a period of ten (10) days after the date of the notice, after which time the Holder's rights under this Warrant shall terminate. 1.2 Number of Shares. This Warrant may be exercised for Two Hundred Thousand (200,000) shares of Common Stock. 1.3 Purchase Price. The per share purchase price for the shares of Common Stock to be issued upon exercise of this Warrant shall be, subject to adjustment as provided herein, Eight Dollars ($8.00). The parties hereto acknowledge that this in no way is an attempt to identify the fair market value of shares of Common Stock, but is rather an arbitrary assignment of value for the purposes of this Warrant only. 1.4 Method of Exercise. The exercise of the purchase rights evidenced by this Warrant shall be effected by (a) the surrender of the Warrant, together with a duly executed copy of the form of a subscription attached hereto, to the Company at its principal offices and (b) the delivery of the purchase price by check or bank draft payable to the Company's order or by wire transfer to the Company's account for the number of shares for which the purchase rights hereunder are being exercised or any other form of consideration approved by the Company's Board of Directors. Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the day on which this Warrant shall have been surrendered to the Company as provided herein or at such later date as may be specified in the executed form of subscription, and at such time the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such exercise as provided herein shall be deemed to have become the holder or holders of record thereof. 1.5 Net Issuance. 1.5.1 Right to Convert. In addition to and without limiting the rights of the Holder under the terms of this Warrant, the Holder shall have the right to convert this Warrant or any portion thereof (the "Conversion Right") into Common Stock as provided in this Section 1.5 at any time or from time to time during the Exercise Period. Upon exercise of the Conversion Right with respect to a particular number of shares subject to the Warrant (the "Converted Warrant Shares"), the Company shall deliver to the Holder (without payment by the Holder of any exercise price or any cash or other consideration) that number of shares of fully paid and nonassessable Common Stock computed using the following formula: T(U-V) S= -------------- U Where S = the number of shares of Common Stock to be delivered to the Holder T = the number of Converted Warrant Shares U = the per share fair market value of the Common Stock (after adjusting back out for any of the adjustments set forth in Section 3 hereof) on the Conversion Date (as defined below) *V = $8.00. * The parties hereto acknowledge that this in no way is an attempt to identify the fair market value of shares of Common Stock, but is rather an arbitrary assignment of value for the purposes of this Warrant only. The Conversion Right may only be exercised with respect to a whole number of shares subject to the Warrant. No fractional shares shall be issuable upon exercise of the Conversion Right, and if the number of shares to be issued determined in accordance with the foregoing formula is other than a whole number, the Company shall pay to the Holder an amount in cash equal to the fair market value of the resulting fractional share on the Conversion Date (as defined below). Shares issued pursuant to the Conversion Right shall be treated as if they were issued upon the exercise of the Warrant. 1.5.2 Method of Exercise. The Conversion Right may be exercised by the Holder by the surrender of the Warrant at the principal office of the Company together with a written statement specifying that the Holder thereby intends to exercise the Conversion Right and indicating the total number of shares under the Warrant that the Holder is exercising through the Conversion Right. Such conversion shall be effective upon receipt by the Company of the Warrant together with the aforesaid written statement, or on such later date as is specified therein (the "Conversion Date"). Certificates for the shares issuable upon exercise of the Conversion Right and, if applicable, a new warrant evidencing the balance of the shares remaining subject to the Warrant, shall be issued as of the Conversion Date and shall be delivered to the Holder promptly following the Conversion Date. 1.5.3 Determination of Fair Market Value. For purposes of this Section 1.5, fair market value of a share of Common Stock on the Conversion Date shall mean the fair market value as determined by the Board of Directors of the Company. 2. Limit on Rights of the Holder upon Exercise. The Holder acknowledges and agrees that upon the exercise of this Warrant in full or in part, the following provisions shall apply to the rights of the Holder as a holder of Common Stock. 2.1 Market Stand-Off Agreement. During the period of duration (not to exceed 180 days) specified by the Company and an underwriter of Common Stock or other securities of the Company, following the effective date of a registration statement of the Company filed under the Securities Act, as amended (the "Act"), the Holder shall not, to the extent requested by the Company and such underwriter, directly or indirectly sell, offer to sell, contract to sell (including, without limitation, any short sale), grant any option to purchase or otherwise transfer or dispose of (other than to transferees or donees who agree to be similarly bound) any securities of the Company held by it at any time during such period except Common Stock included in such registration; provided, however, that this Section 2.1 shall be applicable only to the first such registration statement of the Company pursuant to which Common Stock (or other securities) of the Company are to be sold on its behalf to the public in an underwritten offering, and (b) all officers and directors of the Company enter into similar agreements. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the securities of the Holder (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period. 3. Adjustments to Conversion Price. The number of shares of Common Stock (or any shares of stock or other securities which may be) issuable upon the exercise of this Warrant and the exercise price hereunder shall be subject to adjustment from time to time upon the happening of certain events, as follows: 3.1 Dividends, Distributions, Stock Splits or Combinations. If the Company shall at any time or from time to time after the date hereof make or issue, or fix a record date for the determination of shareholders entitled to receive, a dividend or other distribution payable in additional shares of common or preferred stock (as the case may be), then and in each such event the exercise price hereunder then in effect shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying the exercise price hereunder then in effect by a fraction: (a) the numerator of which shall be the total number of shares of Common Stock (assuming the conversion of all outstanding securities of the Company that are convertible into Common Stock and the exercise of all options and warrants to purchase Common Stock or securities that are convertible into Common Stock) issued and outstanding immediately prior to the time of issuance or the close of business on such record date; and (b) the denominator of which shall be the total number of shares of Common Stock (assuming the conversion of all outstanding securities of the Company that are convertible into Common Stock and the exercise of all options and warrants to purchase Common Stock or securities that are convertible into Common Stock) issued and outstanding immediately after the time of issuance or the close of business on such record date. If the Company shall at any time subdivide the outstanding shares of Common Stock, or if the Company shall at any time combine the outstanding shares of Common Stock then the exercise price hereunder immediately shall be decreased proportionally (in the case of a subdivision) or increased proportionally (in the case of a combination). Any such adjustment shall become effective at the close of business on the date the subdivision or combination becomes effective. 3.2 Reclassification or Reorganization. If the Common Stock (or any shares of stock or other securities which may be) issuable upon the exercise of this Warrant shall be changed into the same or different number of shares of any class or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares or stock dividend provided for in Section 3.1 above, or a reorganization, merger, consolidation or sale of assets provided for in Section 3.3 below), then and in each such event the Holder shall be entitled to receive upon the exercise of this Warrant the kind and amount of shares of stock and other securities and property receivable upon such reorganization, reclassification or other change, to which a holder of the number of shares of Common Stock (or any shares of stock or other securities which may be) issuable upon the exercise of this Warrant would have received if this Warrant had been exercised immediately prior to such reorganization, reclassification or other change, all subject to further adjustment as provided herein. 3.3 Merger, Consolidation or Sale of Assets. If at any time or from time to time there shall be a capital reorganization of the Common Stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 3) or a merger or consolidation of the Company with or into another corporation, or the sale of all or substantially all of the Company's assets and properties to any other person or entity, then as a part of such reorganization, merger, consolidation or sale, provision shall be made so that the Holder shall thereafter be entitled to receive upon the exercise of this Warrant, the number of shares of stock or other securities or property of the Company, or of the successor corporation resulting from such reorganization, merger, consolidation or sale, to which a holder of the number of shares of Common Stock (or any shares of stock or other securities which may be) issuable upon the exercise of this Warrant would have received if this Warrant had been exercised immediately prior to such reorganization, merger, consolidation or sale. 3.4 Notice of Adjustments and Record Dates. The Company shall promptly notify the Holder in writing of each adjustment or readjustment of the exercise price hereunder and the number of shares of Common Stock (or any shares of stock or other securities which may be) issuable upon the exercise of this Warrant. Such notice shall state the adjustment or readjustment and show in reasonable detail the facts on which that adjustment or readjustment is based. In the event of any taking by the Company of a record of the holders of Common Stock for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, the Company shall notify the Holder in writing of such record date at least ten (10) days prior to the date specified therein. 3.5 No Impairment. The Company shall not avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant. Without limiting the generality of the foregoing, the Company (a) shall at all times reserve and keep available a number of its authorized shares of Common Stock, free from all preemptive rights therein, which shall be sufficient to permit the exercise of this Warrant and (b) shall take all such action as may be necessary or appropriate in order that all shares of Common Stock as may be issued pursuant to the exercise of this Warrant shall, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issue thereof. 4. Replacement of Warrants. On receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction of this Warrant, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, on surrender and cancellation of such Warrant, the Company at its expense shall execute and deliver to the Holder, in lieu thereof, a new Warrant of like tenor. 5. Investment Intent. The Holder hereby represents, covenants and acknowledges to the Company that: (a) this Warrant and the Warrant Stock are "restricted securities" as such term is used in the rules and regulations under the Act and that such securities have not been and will not be registered under the Act or any state securities law, and that such securities must be held indefinitely unless a transfer can be made pursuant to appropriate exemptions; (b) the Holder has read, and fully understands, the terms of this Warrant set forth on its face and the attachments hereto, including the restrictions on transfer contained herein; and (c) the Holder is purchasing for investment for its own account and not with a new to or for sale in connection with any distribution of this Warrant or the Warrant Stock and it has no intention of selling such securities in a public distribution in violation of the federal securities laws or any applicable state securities laws. Unless a current registration statement under the Act shall be in effect with respect to the securities to be issued upon exercise of this Warrant, the Holder, by accepting this Warrant, covenants and agrees that, at the time of exercise hereof, the Holder shall deliver to the Company a written statement that the securities acquired by the Holder upon exercise hereof are for the own account of the Holder for investment and are not acquired with a view to, or for sale in connection with, any distribution thereof (or any portion thereof) and with no present intention (at any such time) of offering or distributing such securities (or any portion thereof). 6. No Rights or Liability as a Shareholder. This Warrant does not entitle the Holder hereof to any voting rights or other rights as a shareholder of the Company. No provisions hereof, in the absence of affirmative action by the Holder to purchase Common Stock, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder as a shareholder of the Company. 7. Miscellaneous. 7.1 Transfer of Warrant. This Warrant shall not be transferable or assignable in any manner and no interest shall be pledged or otherwise encumbered by Holder without the express written consent of the Company, and any such attempted disposition of this Warrant or any portion hereof shall be of no force or effect. 7.2 Titles and Subtitles. The titles and subtitles used in this Warrant are for convenience only and are not to be considered in construing or interpreting this Warrant. 7.3 Notices. Any notice required or permitted under this Warrant shall be given in writing. 7.4 Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Warrant, the prevailing party shall be entitled to reasonable attorneys' fees, costs and disbursements in addition to any other relief to which such party may be entitled. 7.5 Amendments and Waivers. Any term of this Warrant may be amended and the observance of any term of this Warrant may be waived (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company and the Holder. 7.6 Severability. If one or more provisions of this Warrant are held to be unenforceable under applicable law, such provision shall be excluded from this Warrant and the balance of the Warrant shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. 7.7 Governing Law. This Warrant shall be governed by and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws principles. Date: May 5, 2000 DISCOVERY PARTNERS INTERNATIONAL, INC., a California corporation By: /s/ Jack Fitzpatrick --------------------------------- Jack Fitzpatrick, Vice President, Chief Financial Officer and Secretary [SIGNATURE PAGE TO WARRANT] SCHEDULE 1 FORM OF SUBSCRIPTION (To be signed only on exercise of Warrant) To: Discovery Partners International, Inc. The undersigned, the holder of the Warrant attached hereto, hereby irrevocably elects to exercise the purchase rights represented by such Warrant for, and to purchase thereunder, ___________* shares of Common Stock of Discovery Partners International, Inc., and herewith makes payment of $__________ therefor, and requests that the certificates for such shares be issued in the name of, and delivered to ___________________________, whose address is ___________________________________________________. ___________________________________________________________ (Signature must conform in all respects to name of the Holder as specified on the face of the Warrant) ___________________________________________________________ (Print Name) ___________________________________________________________ (Address) Dated: ______________________________ - -------- * Insert here the number of shares as to which the Warrant is being exercised. EX-10 4 b322996_ex10.txt JOINT FILING AGREEMENT EXHIBIT 10 JOINT FILING AGREEMENT The undersigned, being authorized thereunto, hereby execute this agreement as an exhibit to this Schedule 13D to evidence the agreement of the below-named parties, in accordance with the rules promulgated pursuant to the Securities Exchange Act of 1934, to file this Schedule, and any amendments or supplements thereto, jointly on behalf of each party. AXYS PHARMACEUTICALS, INC. By: /s/ Thomas P. Livingston --------------------------------- Name: Thomas P. Livingston Title: Secretary APPLERA CORPORATION By: /s/ Thomas P. Livingston --------------------------------- Name: Thomas P. Livingston Title: Secretary Dated: February 13, 2003 -----END PRIVACY-ENHANCED MESSAGE-----