Stock Purchase Agreement - Ligand Pharmaceuticals Inc.
LIGAND PHARMACEUTICALS INCORPORATED
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the 5th
day of January, 2001, by and between Ligand Pharmaceuticals Incorporated (the
"Company"), a corporation organized under the laws of the State of Delaware,
with its principal offices at 10275 Science Center Drive, San Diego, California
92121, and the purchaser whose name and address is set forth on the signature
page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Purchaser agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SHARES. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of up to
2,000,000 shares (the "Shares") of the common stock, par value $0.001 per share
(the "Common Stock"), of the Company.
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SHARES. At the Closing (as defined
in Section 3), the Company will, subject to the terms of this Agreement, sell to
the Purchaser, and the Purchaser will buy from the Company, upon the terms and
conditions hereinafter set forth, the number of Shares (at the purchase price)
set forth on the signature page hereof.
The Company proposes to enter into this same form of purchase
agreement with certain other investors (the "Other Purchasers") and to complete
sales of the Shares to them. The Purchaser and the Other Purchasers are
hereinafter sometimes collectively referred to as the "Purchasers," and this
Agreement and the agreements executed by the Other Purchasers are hereinafter
sometimes collectively referred to as the "Agreements." The term "Placement
Agent" shall mean Salomon Smith Barney Inc.
SECTION 3. DELIVERY OF THE SHARES AT THE CLOSING. The "Subscription Date" shall
be the date when the Company has notified the Placement Agent in writing that it
is no longer accepting Agreements from investors. The completion of the purchase
and sale of the Shares (the "Closing") shall occur at a place and time (the
"Closing Date") to be determined by the Company and the Placement Agent, which
date shall not be less than three nor more than ten business days after the
Subscription Date. The Purchasers will be notified by facsimile transmission or
otherwise of the Closing Date.
At the Closing, the Company shall issue to the Purchaser one or more
stock certificates registered in the name of the Purchaser, or in such nominee
name(s) as designated by the Purchaser in writing, representing the number of
Shares set forth in Section 2 above. The name(s) in which the stock certificates
are to be registered are set forth in the Stock Certificate Questionnaire
attached hereto as part of Appendix I. The Company's obligation to complete the
purchase and sale of the Shares and deliver such stock certificate(s) to the
Purchaser at the Closing shall be subject to the following conditions, any one
or more of which may be waived by the Company: (a) receipt by the Company of
same-day funds in the full amount of the purchase price for the Shares being
purchased hereunder; (b) completion of the purchases and sales under the
Agreements with all of the Other Purchasers; and (c) the accuracy of the
representations and warranties made by the Purchasers and the fulfillment of
those undertakings of the Purchasers to
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be fulfilled prior to the Closing. The Purchaser's obligation to accept delivery
of such stock certificate(s) and to pay for the Shares evidenced thereby shall
be subject to the accuracy in all material respects of the representations and
warranties made by the Company herein and the fulfillment in all material
respects of those undertakings of the Company to be fulfilled prior to Closing.
The Purchaser's obligations hereunder are expressly not conditioned on the
purchase by any or all of the Other Purchasers of the Shares that they have
agreed to purchase from the Company.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents and warrants to, and covenants with, the Purchaser as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and is qualified to do business as a foreign
corporation in each jurisdiction in which qualification is required, except
where failure to so qualify would not have a Material Adverse Effect (as defined
herein) on the Company.
4.2 ISSUANCE, SALE AND DELIVERY OF THE SHARES. The Shares have been duly
authorized and, when issued, delivered and paid for in the manner set forth in
this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable. No further approval or authority of the stockholders or the Board
of Directors of the Company will be required for the issuance and sale of the
Shares to be sold by the Company as contemplated herein. The Company's issuance
of the Shares shall be in compliance with all applicable federal and state
securities laws.
4.3 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE AGREEMENTS. The Company
has full legal right, corporate power and authority to enter into the Agreements
and perform the transactions contemplated hereby. The Agreements have been duly
authorized, executed and delivered by the Company. The making and performance of
the Agreements by the Company and the consummation of the transactions herein
contemplated will not violate any provision of the organizational documents of
the Company. The making and performance of the Agreements by the Company and the
consummation of the transactions herein contemplated will not result in the
creation of any lien, charge, security interest or encumbrance upon any assets
of the Company pursuant to the terms or provisions of, or conflict with, result
in the breach or violation of, or constitute, either by itself or upon notice or
the passage of time or both, a default under any material agreement, mortgage,
deed of trust, lease, franchise, license, indenture, permit or other instrument
to which the Company is a party or by which the Company or any of its respective
properties may be bound and in each case which individually or in the aggregate
would have a material adverse effect on the condition (financial or otherwise),
properties, business, prospects as of the date hereof or results of operations
of the Company, taken as a whole (a "Material Adverse Effect"), or, to the
Company's knowledge, any statute or any authorization, judgment, decree, order,
rule or regulation of any court or any regulatory body, administrative agency or
other governmental body applicable to the Company or any of its respective
properties. No consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body is required
for the execution and delivery of this Agreement or the consummation of the
transactions contemplated by this Agreement, except for compliance with the
federal and state securities laws applicable to the offering of the Shares. Upon
their execution and delivery, and assuming the valid execution thereof by the
respective Purchasers,
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the Agreements will constitute valid and binding obligations of the Company,
enforceable in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' and contracting parties' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Company in
Section 7.3 hereof may be legally unenforceable.
4.4 OFFERING MATERIALS. The Company has not distributed and will not
distribute prior to the Closing Date any offering material in connection with
the offering and sale of the Shares other than the Private Placement Memorandum
dated December 8, 2000 (the "Private Placement Memorandum"). The Company has not
in the past nor will it hereafter take any action independent of the Placement
Agent to sell, offer for sale or solicit offers to buy any securities of the
Company which would bring the offer, issuance or sale of the Shares, as
contemplated by this Agreement, within the provisions of Section 5 of the
Securities Act, unless such offer, issuance or sale was or shall be within the
exemptions of Section 4 of the Securities Act.
4.5 REPORTING COMPANY; LISTED SECURITIES. The Company is a reporting
company and has filed all reports required to be filed by Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
during the preceding twelve (12) months and has been subject to such filing
requirements for the past twelve (12) months. The Common Stock is quoted on the
Nasdaq National Market System ("Nasdaq"). To the Company's knowledge, there is
no stop order suspending the trading of the Common Stock on Nasdaq or any
information which would result in the Common Stock from being delisted from
Nasdaq.
4.6 ADDITIONAL INFORMATION. The Company represents and warrants that the
information contained in the following documents, which the Placement Agent has
furnished to the Purchaser, or will furnish prior to the Closing, complies in
all material respect with the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations promulgated thereunder (the
"Rules and Regulations") and is, or will be, true and correct in all material
respects as of their respective final dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 (without exhibits);
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2000, June 30, 2000 and September 30, 2000 (each
without exhibits);
(c) the Company's Proxy Statement for the 2000 Annual Meeting of
Stockholders;
(d) the Registration Statement;
(e) the Private Placement Memorandum (other than the Purchase
Agreement and appendices thereto); and
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(f) all other documents, if any, filed by the Company with the
Securities and Exchange Commission (the "SEC") since December 31, 1999 pursuant
to the reporting requirements of the Exchange Act.
4.7 LEGAL OPINION. Prior to the Closing, Brobeck, Phleger & Harrison LLP,
counsel to the Company, will deliver its legal opinion to the Purchasers and the
Placement Agent in form and substance reasonably satisfactory to the Purchasers
and the Placement Agent.
4.8 CERTIFICATE. At the Closing, the Company will deliver to Purchaser a
certificate executed by the chief executive officer and the chief financial or
accounting officer of the Company, dated the Closing Date, in form and substance
reasonably satisfactory to the Purchasers, to the effect that the
representations and warranties of the Company set forth in this Section 4 are
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions herein on its part to be performed or satisfied on
or prior to such Closing Date.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
(a) The Purchaser represents and warrants to, and covenants with, the
Company that: (i) the Purchaser is knowledgeable, sophisticated and experienced
in making, and is qualified to make, decisions with respect to investments in
shares representing an investment decision like that involved in the purchase of
the Shares, and has requested, received, reviewed and considered all information
it deems relevant in making an informed decision to purchase the Shares; (ii)
the Purchaser is acquiring the number of Shares set forth in the signature page
hereto, for its own account for investment only and with no present intention of
distributing any of such Shares or any arrangement or understanding with any
other persons regarding the distribution of such Shares; (iii) the Purchaser
will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take
a pledge of) any of the Shares except in compliance with the Act, the Rules and
Regulations and any applicable state securities laws; (iv) the Purchaser has
completed or caused to be completed the Registration Statement Questionnaire and
the Stock Certificate Questionnaire, both attached hereto as Appendix I, for use
in preparation of the Registration Statement, and the answers thereto are true
and correct as of the date hereof and will be true and correct as of the
effective date of the Registration Statement; (v) the Purchaser has, in
connection with its decision to purchase the number of Shares set forth in the
signature page hereto, not relied upon any representations or other information
(whether oral or written) other than as set forth in the Private Placement
Memorandum and the documents included therein and the representations and
warranties of the Company contained herein; (vi) the Purchaser has, with respect
to all matters relating to this Agreement, the Private Placement Memorandum and
the offer and sale of the Shares, relied solely upon the advice of the
Purchaser's own counsel and has not relied upon or consulted the counsel to the
Placement Agent or counsel to the Company; (vii) the Purchaser has had an
opportunity to discuss this investment with representatives of the Company and
ask questions of them; and (viii) the Purchaser is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated under the Securities
Act.
(b) The Purchaser hereby covenants with the Company not to make any
sale of the Shares without satisfying the prospectus delivery requirement under
the Securities Act,
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and the Purchaser acknowledges and agrees that such Shares are not transferable
on the books of the Company unless the certificate submitted to the transfer
agent evidencing the Shares is accompanied by a separate officer's certificate:
(i) in the form of Appendix II hereto, (ii) executed by an officer of, or other
authorized person designated by, the Purchaser, and (iii) to the effect that (A)
the Shares have been sold in accordance with the Registration Statement, the
Securities Act and the Rules and Regulations and any applicable state securities
laws and (B) the requirement of delivering a current prospectus has been
satisfied. Subject to Section 7(e) hereof, the Purchaser acknowledges that there
may occasionally be times when the Company must suspend the use of the
prospectus forming a part of the Registration Statement until such time as an
amendment to the Registration Statement has been filed by the Company and
declared effective by the SEC, or until such time as the Company has filed an
appropriate report with the SEC pursuant to the Exchange Act. The Purchaser
hereby covenants that it will not sell any Shares pursuant to said prospectus
during the period commencing at the time at which the Company gives the
Purchaser written notice of the suspension of the use of said prospectus and
ending at the time the Company gives the Purchaser written notice that the
Purchaser may thereafter effect sales pursuant to said prospectus. The Purchaser
further covenants to notify the Company promptly of the sale of all of its
Shares.
(c) The Purchaser further represents and warrants to, and covenants
with, the Company that (i) the Purchaser has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, (ii) if applicable, the
Purchaser is duly organized, validly existing and in good standing under the
laws of its jurisdiction, (iii) the making and performance of the Agreement by
Purchaser and the consummation of the transactions herein contemplated will not
violate any provision of the organizational documents of Purchaser or conflict
with, result in the breach or violation of, or constitute, either by itself or
upon notice or the passage of time or both, a default under any material
agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument to which the Purchaser is a party or, any statute or any
authorization, judgment, decree, order, rule or regulation of any court or any
regulatory body, administrative agency or other governmental body applicable to
Purchaser, (iv) no consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body is required on
the part of the Purchaser for the execution and delivery of this Agreement or
the consummation of the transactions contemplated by this Agreement, and (v)
upon the execution and delivery of this Agreement, this Agreement shall
constitute a valid and binding obligation of the Purchaser enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the indemnification agreements of the Purchaser in Section 7.3
hereof may be legally unenforceable and (vi) there is not in effect any order
enjoining or restraining the Purchaser from entering into or engaging in any of
the transactions contemplated by this Agreement.
(d) The Purchaser recognizes that an investment in the Shares involves
a high degree of risk, including a risk of total loss of Purchaser's investment,
and the Purchaser has full cognizance of and understands all of the risk factors
related to Purchaser's purchase of the
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Shares, including, but not limited to, those set forth under the caption "Risk
Factors" in the Private Placement Memorandum.
(e) All of the information provided to the Company or its agents or
representatives concerning the Purchaser's suitability to invest in the Company
and the representations and warranties contained herein, are complete, true and
correct as of the date hereof. Purchaser understands that the Company is relying
on the statements contained herein to establish an exemption from registration
under federal and state securities laws.
(f) The address set forth in the signature page hereto is the
Purchaser's true and correct residence and the Purchaser has no present
intention of becoming a resident of any other state or jurisdiction.
(g) The Purchaser covenants to provide Company at all times as the
Company is required to keep the Registration Statement in effect with an
updated, accurate and complete plan of distribution.
(h) The Purchaser understands and agrees that each certificate or
other document evidencing any of the Shares shall be endorsed with the legend in
substantially the form set forth below as well as any other legends required by
applicable law and the Purchaser covenants that the Purchaser shall not transfer
the shares represented by any such certificate without complying with the
restrictions on transfer described in the legends endorsed on such certificate
and understands that the Company shall refuse to register any transfer of Shares
not complying with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR REGISTERED OR
QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT
BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED, PLEDGED OR OTHERWISE ASSIGNED
UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS OR (B)
EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS ARE AVAILABLE.
AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, THE COMPANY MAY
REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY TO THE EFFECT THAT NO REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED
FOR SUCH TRANSFER
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agent, all covenants, agreements, representations and warranties made
by the Company and the Purchaser herein and in the certificates for the Shares
delivered pursuant hereto shall survive for a period of one (1) year following
the later of execution of this Agreement, the delivery to the Purchaser of the
Shares being purchased and the payment therefor.
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SECTION 7. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
7.1 REGISTRATION PROCEDURES AND EXPENSES. Except for such times as the
Company may be required to suspend the use of a prospectus forming a part of the
Registration Statement, as further described in Section 5(b) hereof, the Company
shall:
(a) as soon as practicable, but in no event later than thirty (30)
days following the Closing Date, use best efforts to prepare and file with the
SEC the Registration Statement on Form S-3 relating to the resale of the Shares
by the Purchaser from time to time through the automated quotation system of
Nasdaq or the facilities of any national securities exchange on which the Common
Stock is then traded or in privately-negotiated transactions;
(b) use best efforts to cause the Registration Statement to become
effective under the Securities Act of 1933, as amended, no later than ten (10)
days after the date of filing with the SEC, if the Registration Statement is not
reviewed by the SEC, or no later than 120 days after the Closing Date, if the
Registration Statement is reviewed by the SEC;
(c) use best efforts to prepare and file with the SEC such amendments
and supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep the Registration Statement
effective until the earlier of (i) the second anniversary of the Closing Date,
(ii) the date on which the Purchaser may sell all Shares then held by the
Purchaser within a three-month period without restriction by reason of Rule 144
under the Securities Act ("Rule 144") or any other rule of similar effect, or
(iii) such time as all Shares purchased by the Purchaser have been sold pursuant
to a registration statement;
(d) so long as the Registration Statement is effective covering the
resale of Shares owned by the Purchaser, use best efforts to furnish to the
Purchaser with respect to the Shares registered under the Registration Statement
(and to each underwriter, if any, of such Shares) such reasonable number of
copies of prospectuses and such other documents as the Purchaser may reasonably
request, in order to facilitate the public sale or other disposition of all or
any of the Shares by the Purchaser; provided, however, that the obligation of
the Company to deliver copies of prospectuses to the Purchaser shall be subject
to the receipt by the Company of reasonable assurances from the Purchaser that
the Purchaser will comply with the applicable provisions of the Securities Act
and of such other securities laws as may be applicable in connection with any
use of such prospectuses;
(e) use commercially reasonable efforts to restrict any suspension
referred to in Section 5(b) to no more than ten (10) business days and to
restrict suspensions within any 365 day period to no more than twenty-five (25)
business days in such period;
(f) use best efforts to file documents required of the Company for
normal blue sky clearance in states specified in writing by the Purchaser;
provided, however, that the Company shall not be required to qualify to do
business or consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented;
(g) bear all expenses in connection with the procedures in paragraphs
(a) through (e) of this Section 7.1 and the registration of the Shares pursuant
to the Registration Statement, other than fees and expenses, if any, of counsel
or other advisers to the Purchaser or
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the Other Purchasers or underwriting discounts, brokerage fees and commissions
incurred by the Purchaser or the Other Purchasers, if any; and
(h) with a view to making available to Purchaser the benefits of Rule
144 (or its successor rule) and any other rule or regulation of the SEC that may
at any time permit Purchaser to sell Shares to the public without registration,
the Company covenants and agrees to: (i) make and keep public information
available, as those terms are understood and defined in Rule 144, until the
earlier of (A) such date as all of Purchaser's Shares may be resold within a
given three-month period pursuant to Rule 144 or any other rule of similar
effect or (B) such date as all of Purchaser's Shares shall have been resold;
(ii) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and under the Exchange Act; and
(iii) furnish to Purchaser upon request, as long as Purchaser owns any Shares,
(A) a written statement by the Company that it has complied with the reporting
requirements of the Securities Act and the Exchange Act, (B) a copy of the most
recent annual report on Form 10-K or quarterly report of the Company on Form
10-Q, and (C) such other information as may be reasonably requested in order to
avail Purchaser of any rule or regulation of the SEC that permits the selling of
any such Shares without registration.
7.2 TRANSFER OF SHARES AFTER REGISTRATION. The Purchaser agrees that it
will not effect any disposition of the Shares or its right to purchase the
Shares that would constitute a sale within the meaning of the Securities Act or
pursuant to any applicable state securities or blue sky laws, except as
contemplated in the Registration Statement referred to in Section 7.1, and that
it will promptly notify the Company of any changes in the information set forth
in the Registration Statement regarding the Purchaser or its Plan of
Distribution.
7.3 INDEMNIFICATION. For the purpose of this Section 7.3:
(i) the term "Purchaser" shall include the Purchaser and any
affiliate of such Purchaser; and
(ii) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1.
(a) The Company agrees to indemnify and hold harmless each of the
Purchasers and each person, if any, who controls any Purchaser within the
meaning of the Securities Act, against any losses, claims, damages, liabilities
or expenses, joint or several, to which such Purchasers or such controlling
person may become subject, under the Securities Act, the Exchange Act, or any
other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, including the prospectus, financial statements and schedules, and all
other documents filed as a part thereof, as amended at the time of effectiveness
of the Registration Statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A,
or pursuant to Rule 434, of the Rules and Regulations, or the
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prospectus, in the form first filed with the SEC pursuant to Rule 424(b) of the
Regulations, or filed as part of the Registration Statement at the time of
effectiveness if no Rule 424(b) filing is required (the "Prospectus"), or any
amendment or supplement thereto, or (in the case of the Registration Statement
or any amendment thereof) arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (in the case of the
Prospectus and any amendment thereof or supplement thereto) arise out of or are
based upon the omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or arise out of or are
based in whole or in part on any inaccuracy in the representations and
warranties of the Company contained in this Agreement, or any failure of the
Company to perform its obligations hereunder or under law, and will reimburse
each Purchaser and each such controlling person for any legal and other expenses
reasonably incurred as such expenses are reasonably incurred by such Purchaser
or such controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Purchaser expressly for use therein, or (ii) the failure of such Purchaser
to comply with the covenants and agreements contained in Sections 5(b) or 7.2
hereof respecting sale of the Shares, or (iii) the inaccuracy of any
representations made by such Purchaser herein or (iv) any statement or omission
in any Prospectus that is corrected in any subsequent Prospectus that was
delivered to the Purchaser prior to the pertinent sale or sales by the
Purchaser.
(b) Each Purchaser will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its officers who
signed the Registration Statement or controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Purchaser) insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon (i) any failure by such Purchaser to comply with the covenants
and agreements contained in Sections 5(b) or 7.2 hereof respecting the sale of
the Shares or (ii) the inaccuracy of any representation made by such Purchaser
herein or (iii) any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or (in the case of the Registration Statement or any
amendment thereof) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (in the case of the Prospectus and any amendment thereof or
supplement thereto) the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, the Prospectus, or any amendment or
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supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Purchaser expressly for use
therein, and will reimburse the Company, each of its directors, each of its
officers who signed the Registration Statement or controlling person for any
legal and other expense reasonably incurred, as such expenses are reasonably
incurred by the Company, each of its directors, each of its officers who signed
the Registration Statement or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action.
(c) Promptly after receipt by an indemnified party under this Section
7.3 of notice of the threat or commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 7.3, promptly notify the indemnifying party in writing
thereof, but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party for
contribution or otherwise to the extent it is not prejudiced as a result of such
failure. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 7.3 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed such counsel in connection with the assumption of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, reasonably satisfactory to the indemnifying
party, representing the indemnified parties who are parties to such action) or
(ii) the indemnified party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of action, in each of which cases
the reasonable fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) of this Section 7.3 in respect to any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying,
party shall contribute to the amount paid or payable by such indemnified party
as a result of any losses, claims, damages, liabilities or expenses referred to
herein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Purchaser from the placement of Common Stock or
(ii) if the allocation provided by clause (i) above is not permitted
10
<PAGE>
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but the relative fault of the
Company and the Purchaser in connection with the statements or omissions or
inaccuracies in the representations and warranties in this Agreement which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The respective relative benefits
received by the Company on the one hand and each Purchaser on the other shall be
deemed to be in the same proportion as the amount paid by such Purchaser to the
Company pursuant to this Agreement for the Shares purchased by such Purchaser
that were sold pursuant to the Registration Statement bears to the difference
(the "Difference") between the amount such Purchaser paid for the Shares that
were sold pursuant to the Registration Statement and the amount received by such
Purchaser from such sale. The relative fault of such selling Purchaser and each
Purchaser shall be determined by reference to, among other things, whether the
untrue or alleged statement of a material fact or the omission or alleged
omission to state a material fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by the Company or
by such Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in paragraph (c) of this Section 7.3, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
paragraph (c) of this Section 7.3 with respect to the notice of the threat or
commencement of any threat or action shall apply if a claim for contribution is
to be made under this paragraph (d); provided, however that no additional notice
shall be required with respect to any threat or action for which notice has been
given under paragraph (c) for purposes of indemnification. The Company and each
Purchaser agree that it would not be just and equitable if contribution pursuant
to this Section 7.3 were determined solely by pro rata allocation (even if the
Purchaser were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this paragraph. Notwithstanding the provisions of this Section 7.3, no
Purchaser shall be required to contribute any amount in excess of the amount by
which the Difference exceeds the amount of any damages that such Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Purchasers' obligations to contribute pursuant
to this Section 7.3 are several and not joint.
7.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed by Section 5(b) or Section 7.2 upon the transferability of the Shares
shall cease and terminate as to any particular number of the Shares upon the
passage of twenty-four months from the effective date of the Registration
Statement covering such Shares or at such time as an opinion of counsel
satisfactory in form and substance to the Company shall have been rendered to
the effect that such conditions are not necessary in order to comply with the
Securities Act.
SECTION 8. BROKER'S FEE. Except as otherwise agreed to between the Purchaser and
the Placement Agent, the Purchaser acknowledges that the Company intends to pay
to the Placement Agent a fee in respect of the sale of the Shares to the
Purchaser. Each of the parties hereto hereby
11
<PAGE>
represents that, on the basis of any actions and agreements by it, there are no
other brokers or finders entitled to compensation in connection with the sale of
the Shares to the Purchaser.
SECTION 9. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, confirmed facsimile or nationally recognized overnight
express courier postage prepaid, and shall be deemed given when so mailed and
shall be delivered as addressed as follows:
(a) if to the Company, to:
Ligand Pharmaceuticals Incorporated
10275 Science Center Road
San Diego, California 92121
ATTN: Chief Executive Officer
with a copy to:
Brobeck, Phleger & Harrison LLP
12390 El Camino Real
San Diego, California 92130
Attn: Faye H. Russell, Esq.
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth at the end of
this Agreement, or at such other address or addresses as may have been furnished
to the Company in writing.
SECTION 10. CHANGES. This Agreement may not be modified or amended except
pursuant to an instrument in writing, signed by the Company and the Purchaser.
SECTION 11. HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
SECTION 12. SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
choice of law provisions thereof, and the federal law of the United States of
America.
SECTION 14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
LIGAND PHARMACEUTICALS INCORPORATED
By:______________________________________
Its:_____________________________________
Print or Type: Name of Purchaser
(Individual or Institution):
_____________________________________
Name and Title of Individual(s)
representing Purchaser (if an
Institution):
Name: _____________________________
Title: _____________________________
Name: _____________________________
Title: _____________________________
Price Per
Number to Be Share In Aggregate
Purchased Dollars Price
------------ --------- ----------
Signature by: Individual Purchaser or Individual(s)
representing Purchaser:
_____________________________
_____________________________
Address: _________________
_________________
13
<PAGE>
Appendix I
(one of three)
LIGAND PHARMACEUTICALS INCORPORATED
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the following
information:
The exact name that your Shares are to be registered in (this is the name
that will appear on your stock certificate(s)). You may use a nominee name
if appropriate:
_____________________________
The relationship between the Purchaser of the Shares and the Registered
Holder listed in response to item 1 above:
_____________________________
The mailing address of the Registered Holder listed in response to item 1
above:
_____________________________
_____________________________
_____________________________
The Social Security Number or Tax Identification Number of the Registered
Holder listed in response to item 1 above:
_____________________________
<PAGE>
Appendix I
(two of three)
LIGAND PHARMACEUTICALS INCORPORATED
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement,
please provide us with the following information:
Pursuant to the "Selling Shareholder" section of the Registration Statement,
please state your or your organization's address and name exactly as it
should appear in the Registration Statement:
_____________________________
_____________________________
_____________________________
Please provide the number of shares that you or your organization will own
immediately after Closing, including those Shares purchased by you or your
organization pursuant to this Purchase Agreement and those shares purchased
by you or your organization through other transactions:
_____________________________
Have you or your organization had any position, office or other material
relationship within the past three years with the Company or its
affiliates?
Yes No
If yes, please indicate the nature of any such relationships below:
__________________________________________________________
__________________________________________________________
Does the plan of distribution in the draft form of Registration
Statement provided to you reflect your current plan of distribution?
Yes No
If no, please attach a copy of your current plan of distribution.
<PAGE>
Appendix I
(three of three)
You acknowledge that Salomon Smith Barney is acting as sole placement
agent and Adams Harkness & Hill, which is referred to in the Private Placement
Memorandum dated December 8, 2000 of Ligand Pharmaceuticals Incorporated, is not
acting as a placement agent. In addition, a funding event has occurred as
described in Ligand's Form 8-K dated January 3, 2001.
Yes No
<PAGE>
Appendix II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned (an officer of, or other person duly authorized by),
______________________________________________________________________________
[fill in official name of individual or institution]
hereby certifies that he/she [said institution] is the Purchaser of the shares
evidenced by the attached certificate, and as such, sold such shares on
____________ in accordance with Registration Statement number ______________,
and the requirement of delivering a current prospectus by the Company has been
complied with in connection with such sale.
Print or Type:
Name of Purchaser
(Individual or Institution):
_____________________________
Name of Individual
representing Purchaser
(if an Institution):
_____________________________
Title of Individual
representing Purchaser
(if an Institution):
_____________________________
Signature by:
Individual Purchaser or
Individual representing
Purchaser:
_____________________________
<PAGE>
EXHIBIT A
INVESTOR SHARES PURCHASE AMOUNT
-------- ------ ---------------
Narragansett I, LP 85,000 $1,020,000.00
Narragansett Offshore, Ltd. 165,000 $1,980,000.00
S.A.C. Capital Associates, LLC 375,000 $4,500,000.00
United Capital Management, Inc. 83,333 $999,996.00
Domain Public Equity Partners, L.P. 200,000 $2,400,000.00
Merlin BioMed, LP 102,000 $1,224,000.00
Merlin BioMed International Ltd. 156,000 $1,872,000.00
Merlin BioMed II, LP 34,500 $414,000.00
TAIB Funds, Ltd. 7,500 $90,000.00
Royal Bank of Canada 250,000 $3,000,000.00
Baystar Capital LLP 93,750 $1,125,000.00
Baystar International 31,250 $375,000.00
1,583,333 $18,999,996.00
---------
Elan International Services LTD. 416,667 $5,000,004.00
GRAND TOTAL: 2,000,000 $24,000,000.00
------------ --------- --------------