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`FKHFN WKH IROORZLQJ ER[ > @
` ------------------------
` &$/&8/$7,21 2) 5(*,675$7,21 )((
`
`Source: INFINITY PHARMACEUTICALS, INC., S-1, 5/9/2000 | Powered by Intelligize
`
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` 110
` DISCOVERY PARTNERS INTERNATIONAL, INC.
` SERIES E PREFERRED STOCK PURCHASE AGREEMENT
` SCHEDULE OF EXCEPTIONS
`
` This Schedule of Exceptions is made and given pursuant to Section 2 of
`the Series E Preferred Stock Purchase Agreement dated April 7, 2000 (the
`"Agreement"). The section numbers in this Schedule of Exceptions correspond to
`the section numbers in the Agreement; however, any information disclosed herein
`under any section number shall be deemed to be disclosed and incorporated into
`any other section number under the Agreement where such disclosure would
`otherwise be appropriate. Where the terms of a contract or other disclosure item
`have been summarized or described in this Schedule of Exceptions, such summary
`or description does not purport to be a complete statement of the material terms
`of such contract or item. Any terms defined in the Agreement shall have the same
`meaning when used in this Schedule of Exceptions as when used in the Agreement
`unless the context otherwise requires.
`SECTION 2.4 GOVERNMENT CONSENTS
` Blue Sky filings may be required.
`SECTION 2.6 SUBSIDIARIES
` Discovery Partners International, Inc. (DPI) owns 100% of the equity of
`IRORI Europe, Ltd., a subsidiary created in March 1997. IRORI Europe, Ltd. is
`located in the United Kingdom, and is currently responsible for DPI's European
`sales and marketing activities.
` DPI owns 100% of the equity of Discovery Technologies, Ltd. (DTL),
`located near Basel, Switzerland. DTL, acquired by DPI in 1999, provides High
`Throughput Screening (HTS) services to pharmaceutical, agricultural and
`biotechnology companies.
`
`SECTION 2.7 CONTRACTS AND OTHER COMMITMENTS
`SECTION 2.7
`CONTRACTS AND OTHER COMMITMENTS
`Facility Leases
` DPI currently leases 9,828 sq. ft. of research and development,
`manufacturing, and administrative space in La Jolla, CA, under a lease which
`extends through September 30, 2000. DPI subleases the space to a tenant who pays
`DPI monthly rent in excess of DPI's monthly payment. DPI leases an additional
`34,612 sq. ft. facility of research and development, manufacturing, and
`administrative space, at 9640 Towne Centre Drive, San Diego, CA, which DPI
`occupies. This second lease extends through August 31, 2006. DPI currently pays
`$50,187 per month in base rent, plus the building's monthly operating expenses.
`
` 111
`
` IRORI Europe, Ltd. entered into a five year lease of 21,48 sq. ft. of
`office space on December 22, 1997, at a rental rate of 15,000 British Pounds per
`year. The office is located in Cheshire, England, just outside of Manchester.
` DTL currently leases 1,330 square meters of office and laboratory space,
`in Allschwil, Switzerland, at a rate of 9,421 Swiss Francs per month. The lease
`terminates in 2008. The company recently exercised its option to expand the
`leased space by an additional 650 square meters, beginning in June, 2000.
`Financing
` As of March 31, 2000, DPI had a total equipment lease/finance liability
`of approximately $780,000 in the United States, and US$375,000 in Switzerland.
` DTL has a 3 million Swiss Francs (US$ 1.8 million) line of credit with
`Basler Kantonalbank.
` DTL has a loan of 2.6 million Swiss Francs (US$ 1.6 million) from
`Novartis, which is guaranteed by Discovery Partners International, Inc.
`Technology License/Assignment
` Hewlett-Packard Alliance Agreement. On October 31, 1997, DPI entered
`into an agreement with Hewlett-Packard under which Hewlett-Packard received a
`license to certain DPI technology for use in specified fields. The agreement
`requires Hewlett-Packard to expend specified resources in developing and
`promoting Hewlett-Packard products that incorporate DPI's technology. The
`agreement also contains provisions regarding the co-development and marketing of
`products in the areas of chemical synthesis and analysis.
` Trega Biosciences, Inc. Sublicense Agreement. On May 1, 1998, DPI
`entered into a non-exclusive sublicense agreement with Trega Biosciences, Inc.
`under which the Company has certain rights to make, have made, use, import,
`market, have marketed, sell and have sold products which embody the technology
`contained in U.S. Patent 4,631,211 . The terms of the license require DPI to pay
`Trega a license fee of *** in 1998 and *** in 1999, plus a royalty of 10% of net
`sales of licensed products (subject to a minimum of *** per year and a maximum
`of *** per year).
` Ontogen Patents Assignment Agreement On December 17, 1998 DPI entered
`Ontogen Patents Assignment Agreement On December 17, 1998 DPI entered
`into an agreement with Ontogen Corporation, under which Ontogen assigned to DPI
`into an agreement with Ontogen Corporation, under which Ontogen assigned to DPI
`all rights, title and interest in U. S. Patent 5,770,455 and U. S. Patent
`all rights, title and interest in U. S. Patent 5,770,455 and U. S. Patent
`Application Serial Number 383,766 in exchange for *** .
`Application Serial Number 383,766 in exchange for *** .
`
`Source: INFINITY PHARMACEUTICALS, INC., EX-10.1, 5/9/2000 | Powered by Intelligize
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`*** Portions of this page have been omitted pursuant to a request for
`Confidential Treatment and filed separately with the Commission
` 112
`Product/Service Contracts
` Bristol Myers Squibb Strategic Alliance Agreement. On May 22, 1998, DPI
`entered into a two year agreement to develop and deliver to BMS a NanoKan
`system, designed to enable the low-cost synthesis of up to one million discrete
`chemical compounds per year. BMS purchased *** million of DPI Series D Preferred
`Stock, and agreed to pay *** million for the NanoKan system and 500,000
`disposable nanokan reactors.
` Aventis Strategic Alliance Agreement. On June 15, 1998, DPI entered into
`a two year agreement to develop and deliver to Aventis (formerly Rhone Poulenc
`Rorer) a NanoKan system, designed to enable the low-cost synthesis of up to one
`million discrete chemical compounds per year. Aventis purchased *** million of
`DPI Series D Preferred Stock, and agreed to pay *** million for the NanoKan
`system and 1.5 million disposable nanokan reactors.
` ChemRx Contracts
`The ChemRx business unit has the following active chemistry services contracts:
`
` Dupont Pharmaceuticals Company - 5/25/99; $ 336,000
` Hoffman La Roche - 7/26/99; 362,500
` Monsanto Searle - 7/29/99; 62,500
` Pharmacia & Upjohn - 8/2/99; 493,200
` Kirin Brewery Co Ltd - 8/2/99; 435,000
` R. W. Johnson Pharmaceutical Research - 9/15/99; 290,000
` Rohm and Haas Company - 9/17/99; 75,000
` Dupont Crop Protection Products - 10/15/99; 300,000
` AstraZeneca - 11/8/99; 40,000
` Kirin Brewery Co Ltd - 12/6/99; 300,000
` Dupont Pharmaceuticals Company - 12/10/99; 3,900,000
` Abbot Laboratories- 12/16/99; 150,000
` DGI BioTechnologies, LLC - 12/16/99 62,500
` Hisamitsu Pharmaceutical Co., Inc. - 1/17/00 337,500
`
` DTL Contracts
`The DTL business unit has the following active screening services contracts:
`
` Novartis Crop Protection, U.S. - 5/21/99; 1,080,000
` MDL - 9/8/99; 168,000
` Novartis Crop Protection, Switzerland - 12/23/99; 187,500
`
`*** Portions of this page have been omitted pursuant to a request for
`Confidential Treatment and filed separately with the Commission
` 113
`
` BiochemPharma - 11,1,99; 15,000
` Japan Tobacco - 1/10/00; 271,659
` Japan Tobacco - 1/10/00; 540,068
` Japan Tobacco - 3/17/00; 3,000,000
`
` Employment Agreements
`DPI has employment agreements with the following individuals:
` Riccardo Pigliucci - 4/17/98 Henri Zinsli - 8/10/99 Helmut Kessman -
` 8/10/99 Bernard Schnurr - 8/10/99
` Directorship Agreements
`DPI has directorship agreements with the following outside members of the board
`of directors:
` Paul Anderson - 3/1/96
` Dieter Hoehn - 12/15/96
` Scientific Advisory Board Agreements
`DPI has agreements with the following members of its Scientific Advisory Board:
` K. C. Nicolaou - 4/27/95
` Barry Honig - 12/15/98
` Julius Rebek - 10/1/98
` Colin Dollery - 5/17/99
` Ricchard Labaudiniere - 7/9/99
`Source: INFINITY PHARMACEUTICALS, INC., EX-10.1, 5/9/2000 | Powered by Intelligize
`
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`

`

` Consultants and Contractors. DPI utilizes the services of a wide variety
`of consultants and contractors, related to research and development, marketing,
`and administrative tasks. All such service providers have signed consulting
`agreements which contain provisions: (1) prohibiting the disclosure of DPI
`confidential information, (2) assigning to DPI all intellectual property
`produced as a result of the consulting engagement, and (3) allowing DPI to
`terminate without cause with 30 days notice.
` Other. Reference is made to the Investors' Rights Agreement,
`Shareholders' Agreement, Voting Agreement, and the various stock purchase
`agreements, warrants, and options under which DPI securities have been issued or
`are issuable.
` See also Section 2.21 Employees; Employee Compensation.
`SECTION 2.8 RELATED-PARTY TRANSACTIONS
`
` 114
`
` DPI has an outstanding loan of $240,000 to Riccardo Pigliucci, the
`proceeds of which were used to exercise company stock options. The full-recourse
`loan is interest-bearing and is secured by 600,000 shares of DPI Common Stock.
` Paul Anderson, a member of DPI's Board of Directors, is also a vice
`president of Dupont Pharmaceuticals. Dupont Pharmaceuticals has purchased
`product from DPI and has contracted with DPI several times for chemistry
`services.
`SECTION 2.17 FINANCIAL STATEMENTS
` In March, 2000, DPI entered into a new equipment financing agreement
`with GE Capital for a total of $747,151.
` DPI has entered into standard indemnification provisions in several of
`its agreements.
`SECTION 2.18 CHANGES
` (a) DPI issued a Promissory Note in the amount of $2,000,000 in March of
`2000 payable to Crosspoint Venture Partners LS-1997. The Note accrues interest
`equal to eight percent (8%) per annum. The Note plus accrued interest will be
`converted into shares of Series E Preferred Stock on the Closing Date of this
`transaction. In addition to the interest paid on the Note, warrants to purchase
`76,931 shares of Series E Preferred Stock at a price of $5.00/share were granted
`to the Note holder.
` Revenues, costs and expenses subsequent to December 31, 1999 have been
`consistent with management's expectation and have not adversely impacted the
`Company.
`SECTION 2.19 PATENTS AND TRADEMARKS
` The Company has entered into a license agreement with Trega Biosciences,
`Inc. under which the Company has certain rights to make, have made, use, import,
`market, have marketed, sell and have sold products which embody the technology
`contained in U.S. Patent 4,631,211.
` On June 24, 1997, the U. S. Patent and Trademark Office allowed DPI's
`trademark application on "ACCUTAG", subject to no opposition being filed within
`30 days. Waters Technologies Corporation filed opposition within the 30 day
`period, claiming prior use of the name. The issue is not yet resolved.
` The Company acknowledges that future business plans may require
`in-licensing various technologies critical to the success of those plans.
`
` 115
`
` The Company has granted a license to Hewlett-Packard to certain DPI
`technology, more fully described in Section 2.7 Contracts and Other Commitments.
` The Company has been notified by the United States Patent Office that
`some of the claims contained in patent applications 08/473,660, 08/480,147,
`08/484,486 and 09/098,122 may interfere with one or more claims of other
`patents, and that ex parte prosecution has been suspended. The Company believes
`that the potential interference(s) may be with certain claims contained in
`potential interference
`either: a) a pending patent application filed by Ontogen Corporation on methods
`a pending patent application filed by Ontogen Corporation on methods
`and apparatus for synthesizing labeled combinatorial chemical libraries, which
`and apparatus for synthesizing labeled combinatorial chemical libraries, which
`the Company has acquired from Ontogen in an agreement more fully described in
`the Company has acquired from Ontogen in an agreement more fully described in
`Section 2.7 Contracts and Other Commitments; or b) patent #5,641,634 issued to
`Section 2.7
`Contracts and Other Commitments;
`W. Mandecki. All of the claims in the Mandecki patent #5,641,634 relate to the
`performance of assays, and if upheld by the U. S. Patent Office, would have no
`impact on DPI's business as now conducted or as proposed to be conducted.
` 116
`CURRENT DPI PATENTS AND PATENT APPLICATIONS
`
`SERIAL NO.(PATENT NO.) FILING DATE COUNTRY OR REGION
`- ---------------------- ----------- -----------------
`08/383,766 Allowed 950202 United States
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` 1
` EXHIBIT 10.35
`
` ASSIGNMENT AGREEMENT
`This Assignment Agreement is entered into this 17th day of December 1998
` This Assignment Agreement is entered into this 17th day of December 1998
`between ONTOGEN Corporation, a California corporation located at 6451 El Camino
`between ONTOGEN Corporation, a California corporation located at 6451 El Camino
`Real, Carlsbad, CA 92009 ("ONTOGEN"), and DISCOVERY PARTNERS INTERNATIONAL,
`Real, Carlsbad, CA 92009 ("ONTOGEN"), and DISCOVERY PARTNERS INTERNATIONAL,
`INC., dba IRORI, California corporation located at 11149 North Torrey Pines
`INC., dba IRORI, California corporation located at 11149 North Torrey Pines
`Road, La Jolla, CA 92037 ("IRORI").
`Road, La Jolla, CA 92037 ("IRORI").
` WHEREAS ONTOGEN has developed and filed patent applications, and has
`been issued a patent, describing certain technology relating to the labeling of
`chemical libraries; and
` WHEREAS IRORI wishes to acquire rights in such technology.
` NOW, THEREFORE, in consideration of the mutual covenants and obligations
`of this Agreement, the parties agree as follows:
`ONTOGEN hereby agrees to assign all rights, title and interest in US
` 1. ONTOGEN hereby agrees to assign all rights, title and interest in US
`Patent Number 5,770,455 entitled Methods and Apparatus for Synthesizing Labeled
`Patent Number 5,770,455 entitled Methods and Apparatus for Synthesizing Labeled
`Combinatorial Chemistry Libraries, issued June 23, 1998 and US Patent
`Combinatorial Chemistry Libraries, issued June 23, 1998 and US Patent
`Application Serial Number 383,766, entitled Methods and Apparatus for
`Application Serial Number 383,766, entitled Methods and Apparatus for
`Synthesizing Labeled Combinatorial Chemistry Libraries, filed February 2, 1995,
`Synthesizing Labeled Combinatorial Chemistry Libraries, filed February 2, 1995,
`and to all inventions described therein, and any and all continuations,
`and to all inventions described therein, and any and all continuations,
`continuations-in-part, reissues, divisionals, foreign counterparts, and other
`continuations-in-part, reissues, divisionals, foreign counterparts, and other
`patents and/or patent applications that are counterparts to or claim priority to
`patents and/or patent applications that are counterparts to or claim priority to
`any of the above patents or patent applications (collectively, hereinafter "the
`any of the above patents or patent applications (collectively, hereinafter "the
`Patents") to IRORI by execution as of the date hereof of the Assignments
`Patents") to IRORI by execution as of the date hereof of the Assignments
`attached herein as Exhibits I and II.
`attached herein as Exhibits I and II.
` 2. In consideration of the above assignment, IRORI agrees to pay to
`ONTOGEN *** upon execution of this Agreement and an additional ***
`on January 1, 1999. ONTOGEN will retain a security interest in the Patents until
`such additional payment has been received.
` 3. IRORI hereby grants to ONTOGEN a fully paid-
`up, irrevocable right and
`license (without the right of sublicense) to the technology described in the
`Patents only for internal use, which may include commercial use.
` 4. ONTOGEN EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
`INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
`PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IN NO EVENT WILL ONTOGEN BE LIABLE FOR
`ANY DAMAGES OF ANY KIND, HOWEVER, CAUSED AND ON ANY THEORY OF LIABILITY, ARISING
`OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE
`OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
`
`*** Portions of this page have been omitted pursuant to a request for
` Confidential Treatment and filed separately with the Commission
`
` Page 1 of 2
` 2
` 5. This Agreement shall be governed by and construed, and the rights and
`duties of the parties shall be determined in accordance with the law of the
`State of California.
` 6. This Agreement shall inure to the benefit of and be binding upon the
`Source: INFINITY PHARMACEUTICALS, INC., EX-10.35, 5/9/2000 | Powered by Intelligize
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`

`successors and assigns of the parties.
` 7. This Agreement, together with Exhibits I and II, attached hereto,
`which are incorporated into and made a part of this Agreement, sets forth the
`entire agreement and understanding of the parties as to the subject matter
`hereof and supersedes all previous negotiations, commitments and writings. No
`waiver, amendment or modification of this Agreement shall be effective against
`Assignee, unless in writing executed by a duly authorized representative of
`Assignee.
` 8. ONTOGEN represents and warrants that it is the owner of all rights to
`the Patents and has the authority to assign all rights to the Patents to IRORI
`as provided herein. "All rights" includes, without limitation, ONTOGEN not
`having given anyone any license under any of the Patents.
` IN WITNESS THEREOF, the parties hereto have caused this agreement to be
`executed by their respective offices duly authorized, effective as of the date
`and year written above.
`ONTOGEN CORPORATION DISCOVERY PARTNERS
` INTERNATIONAL, INC. (dba IRORI)
`By: /s/ Barry Toyonaga By: /s/ Riccardo Pigliucci
` ------------------------------ ------------------------------------
`Name: Barry Toyonaga Name: Riccardo Pigliucci
` ---------------------------- ----------------------------------
`Title: President Title: President and CEO
` --------------------------- ---------------------------------
`
` Page 2 of 2
`
`Source: INFINITY PHARMACEUTICALS, INC., EX-10.35, 5/9/2000 | Powered by Intelligize
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`