LJL BIOSYSTEMS, INC.
COMMON STOCK PURCHASE AGREEMENT
JANUARY 25, 1999
LJL BIOSYSTEMS, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "AGREEMENT") is entered into
as of this 25th day of January, 1999 (the "EFFECTIVE DATE") among LJL
BioSystems, Inc., a Delaware corporation (the "COMPANY") and the investors
listed on EXHIBIT A attached hereto (each a "PURCHASER" and together the
"PURCHASERS").
SECTION 1
SALE OF COMMON STOCK AND WARRANT
1.1 SALE OF COMMON STOCK. Subject to the terms and conditions hereof,
on the Closing Date, as defined below, the Company will issue and sell to
each Purchaser, and each Purchaser will purchase from the Company the number
of whole shares of Common Stock, par value $0.001 per share, of the Company
(the "PURCHASED COMMON STOCK"), calculated by dividing the dollar amount set
forth opposite such Purchaser's name on EXHIBIT A by $3.50.
1.2 CLOSING DATE. The closing (the "CLOSING") of the purchase and sale
of the Common Stock (referred to herein as the "SECURITIES") shall be held at
the offices of Venture Law Group, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx
at 10:00 a.m. on January 27, 1999, or at such other time and place upon which
the Company and the Purchasers shall mutually agree (the date of the Closing
is hereinafter referred to as the "CLOSING DATE").
1.3 DELIVERY. At the Closing, the Company will deliver to each
Purchaser a certificate or certificates representing the shares of Common
Stock purchased by such Purchaser, against payment of the purchase price
therefor, by wire transfer or certified or cashier's check drawn on a United
States ("U.S.") bank.
1.4 LEGEND. The certificate or certificates for the Securities shall
be subject to a legend restricting transfer under the Securities Act of 1933,
as amended (the "SECURITIES ACT") and referring to restrictions on transfer
herein, such legend to be substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT (A) AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO, OR (B) AN OPINION OF COUNSEL FOR THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (C) FULL COMPLIANCE WITH THE PROVISIONS OF RULE 144
UNDER THE ACT."
In addition, the certificates for the Securities issued and sold to The
Bay City Capital Fund I, L.P. ("Bay City Fund") and Skyline Venture Partners,
L.P. shall include appropriate legends to reflect such Purchasers' status as
affiliates of the Company.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchasers that as of
the Effective Date:
2.1 ORGANIZATION. The Company is a corporation duly organized and
validly existing under the laws of the State of Delaware and is in good
standing under such laws. The Company has requisite corporate power and
authority to own, lease and operate its properties and assets, and to carry
on its business as presently conducted and as proposed to be conducted. The
Company is qualified to do business as a foreign corporation in each
jurisdiction in which the ownership of its property or the nature of its
business requires such qualification, except where failure to so qualify
would not have a materially adverse effect on the Company. The Company has
no subsidiaries or equity interest in any other entity other than LJL
BioSystems Ltd., a U.K. subsidiary.
2.2 CAPITALIZATION. The authorized capital stock of the Company
consists of 50,000,000 shares of Common Stock, $0.001 par value, of which at
December 31, 1998, approximately 10,524,493 shares were issued and
outstanding, and 2,000,000 shares of Preferred Stock, $0.001 par value, of
which no shares of Preferred Stock were issued and outstanding and warrants
exercisable for 73,679 shares of Common Stock were issued and outstanding.
Since December 31, 1998, no shares of the Company's Common or Preferred Stock
have been issued, except pursuant to the exercise of outstanding options and
except pursuant to the Company's 1998 Employee Stock Purchase Plan. All such
issued and outstanding shares have been duly authorized and validly issued
and are fully paid and nonassessable. As of December 31, 1998, there were
options outstanding for approximately 1,509,053 shares of Common Stock and
approximately 890,144 shares available for future issuance. Except as
described in this Section 2.2, there are no other options, warrants,
conversion privileges or other contractual rights presently outstanding to
purchase or otherwise acquire any authorized but unissued shares of the
Company's capital stock or other securities other than pursuant to the
Company's stock option plans and Employee Stock Purchase Plan. All of the
issued and outstanding securities of the Company have been issued in
compliance with all applicable federal and state securities laws.
2.3 AUTHORIZATION. The Company has all corporate right, power and
authority to enter into this Agreement and the Registration Rights Agreement
substantially in the form attached hereto as EXHIBIT D (the "Registration
Rights Agreement") and to consummate the transactions contemplated hereby and
thereby. All corporate action on the part of the Company, its directors and
stockholders necessary for the authorization, execution, delivery and
performance of this Agreement and the Registration Rights Agreement by the
Company, and the authorization, sale, issuance and delivery of the Securities
being sold hereunder by the Company has been taken. This Agreement and the
Registration Rights Agreement have been duly executed and delivered by the
Company and constitute legal, valid and binding obligations of the Company
enforceable in accordance with their respective terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of
debtors and rules of law
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governing specific performance, injunctive relief or other equitable
remedies, and to limitations of public policy as they may apply to Section
1.7 of the Registration Rights Agreement. Upon their issuance and delivery
pursuant to this Agreement, all of the Securities being sold by the Company
hereunder will be duly and validly issued, fully paid and nonassessable and
free and clear of any liens and encumbrances other than restrictions on
transfer pursuant to state and federal securities laws. There are no
statutory, contractual or other preemptive rights, rights of first refusal,
co-sale rights or similar rights with respect to the issuance and sale of the
Securities.
2.4 VALIDITY OF SECURITIES. The Securities, when issued, sold and
delivered by the Company in accordance with the terms of this Agreement, will
be duly and validly issued, fully-paid and nonassessable. Based in part upon
the representations of the Purchasers in this Agreement, the offer, sale and
issuance of the Securities will be made in compliance with all applicable
federal and state securities laws.
2.5 NO CONFLICT. The execution and delivery of this Agreement and the
Registration Rights Agreement do not, and the consummation of the
transactions contemplated hereby and thereby will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or to a loss of a material benefit, under, any
provision of the Certificate of Incorporation or Bylaws of the Company or any
material agreement attached as an exhibit to the Company's SEC Documents, or
any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Company, its properties or assets, which conflict,
violation, default or right would have a material adverse effect on the
business, properties, prospects or financial condition of the Company.
2.6 ACCURACY OF REPORTS; FINANCIAL STATEMENTS. All reports required to
be filed with the Securities and Exchange Commission (the "SEC") by the
Company since March 18, 1998 (the date of the Company's initial public
offering) through the date of this Agreement under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), copies of which have been made
available to each Purchaser (the "SEC Documents"), have been duly and timely
filed, were in substantial compliance with the requirements of their
respective forms when filed, were complete and correct in all material
respects as of the dates at which the information was furnished, and
contained (as of such dates) no untrue statement of a material fact nor
omitted to state a material fact necessary in order to make the statements
made therein in light of the circumstances in which made not misleading. The
financial statements of the Company included in the SEC Documents (the
"Financial Statements") comply as to form in all material respects with
applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto. The Financial Statements have
been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the consolidated financial position
of the Company at the dates thereof and the consolidated results of
operations and consolidated cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal, recurring adjustments).
Since the date of the last filing of an SEC Document, there has not been any
material adverse change in the assets, business, financial condition or
results of operations of the Company; PROVIDED, HOWEVER, that changes in the
ordinary course of business, including but not limited to the use of cash and
increase in liabilities, shall not be deemed to be a
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material adverse change.
2.7 GOVERNMENTAL CONSENTS, ETC. No consent, approval or authorization
of or designation, declaration or filing with any governmental authority on
the part of the Company is required in connection with the valid execution
and delivery of this Agreement or the Registration Rights Agreement, or the
consummation of any other transaction contemplated hereby and thereby, except
such filings as may be required to be made with the SEC, the National
Association of Securities Dealers, Inc. and with governmental authorities for
purposes of effecting compliance with the securities and blue sky laws in the
states in which Securities are offered and/or sold (which compliance will be
effected in accordance with such laws).
2.8 LITIGATION. There is no action, suit, proceeding, claim,
arbitration or investigation pending or as to which the Company has received
any notice of assertion against the Company, which could reasonably be
expected to result in a material adverse effect on the business, properties,
financial condition or operations of the Company.
2.9 REGISTRATION RIGHTS. Except for the rights set forth in the
Amended and Restated Investors' Rights Agreement dated June 17, 1997, a copy
of which has been made available to each Purchaser, the Company is not
presently under any obligation and has not granted any rights to register its
securities under the Securities Act with respect to any of its presently
outstanding securities, which rights would be implicated with respect to the
registration contemplated by the Registration Rights Agreement and which
rights have not been waived by the holders thereof.
2.10 NO MATERIAL DEFAULT. The Company is not in violation of or default
in any material respect under any provision of (a) its Certificate of
Incorporation or Bylaws, (b) any federal or state judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to the Company, or (c)
any material agreement attached as an exhibit to the Company's SEC Documents,
except such violations or defaults as would not have a material adverse
effect on the business, properties, prospects or financial condition of the
Company.
2.11 LISTING. The Company's Common Stock is traded on The Nasdaq
National Market.
2.12 DISCLOSURE. No representation or warranty of the Company contained
in this Agreement or the exhibits attached hereto (when read together and
taken as a whole), contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
herein or therein in light of the circumstances under which they were made
not misleading.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly with other Purchasers, hereby
represents and warrants to the Company as follows as of the Effective Date:
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3.1 INVESTMENT. Such Purchaser will acquire the Securities purchased
from the Company pursuant to this Agreement for investment for its own
account, not as a nominee or agent and not with a view to or for resale in
connection with any distribution thereof. Purchaser understands that the
Securities purchased by such Purchaser from the Company pursuant to this
Agreement have not been registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act
which depends upon, among other things, the bona fide nature of such
Purchaser's investment intent and the accuracy of such Purchaser's
representations as expressed herein.
3.2 ACCREDITED INVESTOR. Such Purchaser is an "accredited investor" as
defined by Rule 501(a) of the Securities Act of 1933, as amended (the
"Securities Act"). The SEC documents have been made available to each
Purchaser, and each Purchaser has received all the information it has
requested regarding the Company. Such Purchaser has such business and
financial experience as is required to give it the capacity to protect its
own interests in connection with the purchase of the Securities.
3.3 AUTHORITY. This Agreement and the Registration Rights Agreement
have been duly executed and delivered by such Purchaser and constitute legal,
valid and binding obligations of such Purchaser, enforceable in accordance
with their respective terms, subject to laws of general application relating
to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable
remedies, and to limitations of public policy as they may apply to Section
1.7 of the Registration Rights Agreement. The execution and delivery of this
Agreement and the Registration Rights Agreement do not, and the consummation
of the transactions contemplated hereby and thereby will not, conflict with
or result in any violation of any obligation under any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to such
Purchaser.
3.4 GOVERNMENT CONSENTS, ETC. No consent, approval or authorization of
or designation, declaration or filing with any governmental authority on the
part of such Purchaser is required in connection with the valid execution and
delivery of this Agreement, or the offer, sale or issuance of the Securities,
or the consummation of any other transaction contemplated hereby.
3.5 INVESTIGATION. Such Purchaser has had a reasonable opportunity to
discuss the Company's business, management and financial affairs with the
Company's management.
SECTION 4
CONDITIONS TO OBLIGATIONS OF THE PURCHASERS
The obligations of each Purchaser to the Company under this Agreement
are subject to the fulfillment, on or before the Closing, of each of the
following conditions, unless otherwise waived:
4.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 2 shall be true and correct in all
material respects when made
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and on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of the Closing Date.
4.2 COVENANTS. All covenants, agreements and conditions contained in
this Agreement to be performed by the Company on or prior to the Closing Date
shall have been performed or complied with in all material respects.
4.3 NO ACTION, ETC. PENDING. There shall not at Closing be in effect
any action, order, or other proceeding, preventing, enjoining or otherwise
restraining the transactions contemplated by this Agreement.
4.4 NO LAW PROHIBITING OR RESTRICTING SALE. There shall not be in
effect any law, rule or regulation prohibiting or restricting such sale, or
requiring any consent or approval of any person which shall not have been
obtained to issue the Securities (except as otherwise referenced in this
Agreement).
4.5 COMPLIANCE CERTIFICATE. The Company shall have delivered to the
Purchasers a certificate substantially in the form attached hereto as EXHIBIT
B executed by a duly authorized officer, dated the Closing Date, certifying
to the fulfillment of the conditions specified in Sections 4.1 and 4.2 and
certifying that, since the date of the Company's most recent filing with the
SEC, there has not been any material adverse change in the assets,
liabilities, financial condition or operations of the Company; PROVIDED,
HOWEVER, that changes in the ordinary course of business, including but not
limited to the use of cash and increase in liabilities, shall not be deemed
to be a material adverse change.
4.6 REGISTRATION RIGHTS AGREEMENT. On or before the Closing, the
Company and the Purchasers shall have executed and delivered a counterpart of
the Registration Rights Agreement in the form attached hereto as EXHIBIT C.
4.7 OPINION OF COMPANY COUNSEL. The Purchasers shall have received
from Venture Law Group, counsel for the Company, an opinion, dated as of the
Closing, substantially in the form attached hereto as EXHIBIT D.
4.8 DIRECTOR. The Company shall have taken all actions necessary to
ensure that Xxxx Xxxxxxx shall be appointed, effective immediately after the
Closing, to serve on the Company's board of directors.
SECTION 5
CONDITIONS TO OBLIGATIONS OF THE COMPANY
The obligations of the Company under this Agreement are subject to the
fulfillment on or prior to the Closing of each of the following conditions,
unless otherwise waived:
5.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Purchasers in Section 3 hereof shall be true and
correct in all material respects when
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made and on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of the Closing Date.
5.2 PERFORMANCE. All covenants, agreements and conditions contained in
this Agreement to be performed by the Purchasers on or prior to the Closing
Date shall have been performed or complied with in all material respects.
5.3 NO ACTION, ETC. PENDING. There shall not at Closing be in effect
any action, order or other proceeding, preventing, enjoining or otherwise
restraining the transactions contemplated by this Agreement.
5.4 NO LAW PROHIBITING OR RESTRICTING SUCH SALE. There shall not be in
effect any law, rule or regulation prohibiting or restricting such sale, or
requiring any consent or approval of any person which shall not have been
obtained to issue the Securities (except as otherwise provided in this
Agreement).
SECTION 6
POST-CLOSING COVENANTS
6.1 POST-CLOSING COVENANT OF THE COMPANY. Until the earlier of (i) the
date upon which Bay City Fund and its affiliates beneficially own 75% or less
of the shares of Purchased Common Stock that Bay City Fund purchases
hereunder or (ii) four (4) years from the Closing, the Company shall, subject
to the fiduciary obligations of the Board of Directors to the Company's
stockholders based on advice of legal counsel, (i) nominate and include in
the Company proxy statement a representative designated by Bay City Capital
LLC ("BAY CITY") as a Class II director of the Company's Board of Directors
at each annual meeting of stockholders of the Company where the class of
which such designee is a member is up for election, and (ii) in the event
that any such designee shall resign or be removed as a director for any
reason during the period that this Section 6.1 is in effect, fill the vacancy
resulting thereby by a designee of Bay City. The Company shall provide all
rights and benefits of indemnity to such designee as are provided such other
outside directors.
6.2 POST-CLOSING COVENANT OF THE PURCHASERS. Until the earlier of (i)
the date upon which Bay City Fund beneficially owns 75% or less of the Common
Stock purchased by Bay City Fund pursuant to this Agreement or (ii) four (4)
years from the Closing, the Purchasers (which term, for the purposes of this
Section 6.2, shall include all affiliates of the Purchasers that may from
time to time beneficially own shares of Common Stock) shall take such action
as may be required so that all shares of voting stock of the Company
beneficially owned by the Purchasers are voted for the nominee to the Board
of Directors of the Company which is nominated consistent with the provisions
of Section 6.1 above.
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SECTION 7
MISCELLANEOUS
7.1 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State
of California, without giving effect to principles of conflicts of law.
7.2 MAINTENANCE OF LISTING. For so long as the Company is obligated to
keep in effect any registration statement provided for under the Registration
Rights Agreement, the Company will use its reasonable best efforts to
maintain its listing on The Nasdaq National Market or a national securities
exchange, as defined in the Exchange Act.
7.3 FILINGS. The parties shall consult and fully cooperate with and
provide assistance to each other in preparing and filing as soon as
practicable all consents, approvals and authorizations necessary or advisable
to be made or obtained from any third-party or governmental agency in order
to consummate the transactions contemplated hereby.
7.4 SURVIVAL. Unless otherwise set forth in this Agreement, the
representations and warranties of the Company and the Purchasers contained in
or made pursuant to this Agreement shall terminate six (6) months following
the Closing; provided, however, that the covenants in Section 6 shall survive
for the terms stated therein.
7.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns.
7.6 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Registration
Rights Agreement and the other documents delivered pursuant hereto constitute
the full and entire understanding and agreement between the parties with
regard to the subject matter hereof and thereof and supersede all prior
agreements and understandings among the parties relating to the subject
matter hereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed by
the party against which enforcement of any such amendment, waiver, discharge
or termination is sought.
7.7 NOTICES AND DATES. Unless otherwise provided herein, any notice
required or permitted by this Agreement shall be in writing and shall be
deemed sufficient upon delivery, when delivered personally or by overnight
courier and addressed to the party to be notified at such party's address as
set forth on EXHIBIT A hereto, or to the Company at its address specified on
its signature page hereto, or as subsequently modified by written notice. In
the event that any date provided for in this Agreement falls on a Saturday,
Sunday or legal holiday, such date shall be deemed extended to the next
business day.
7.8 BROKERS.
(a) The Company has not engaged, consented to or authorized any
broker,
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finder or intermediary to act on its behalf, directly or indirectly, as a
broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. The Company hereby agrees to indemnify and
hold harmless the Purchasers from and against all fees, commissions or other
payments owing to any party acting on behalf of the Company hereunder.
(b) No Purchaser has engaged, consented to or authorized any
broker, finder or intermediary to act on its behalf, directly or indirectly,
as a broker, finder or intermediary in connection with the transactions
contemplated by this Agreement. Each Purchaser hereby agrees to indemnify
and hold harmless the Company from and against all fees, commissions or other
payments owing to any party acting on behalf of such Purchaser hereunder.
7.9 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
7.10 COSTS AND EXPENSES. Each party hereto shall pay its own costs and
expenses incurred in connection herewith, including the fees of its counsel,
auditors and other representatives, whether or not the transactions
contemplated herein are consummated.
7.11 NO THIRD PARTY RIGHTS. Nothing in this Agreement shall create or
be deemed to create any rights in any person or entity not a party to this
Agreement.
7.12 PUBLICITY. The Purchasers and the Company shall not issue any
public statement concerning the transactions contemplated by this Agreement
without the reasonable prior written consent of the parties named in such
public statement; PROVIDED, HOWEVER, that the parties may disclose the
transaction or the terms hereof or thereof from time to time without the
approval of the party whose name is disclosed if (i) such approval has been
requested and not received and such party concludes (after consulting with
counsel) that it is required by law to disclose the transaction or the terms
thereof or (ii) to the extent that similar disclosure has been previously
approved pursuant to this Section 7.12.
7.13 CAPTIONS AND HEADINGS. The captions and headings used herein are
for convenience and ease of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
7.14 COUNTERPARTS. This Agreement may be executed in counterparts, and
each such counterpart shall be deemed an original for all purposes.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date first written
above.
LJL BIOSYSTEMS, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------------
Its: President
----------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date first written
above.
THE BAY CITY CAPITAL FUND I, L.P.
By: BAY CITY CAPITAL MANAGEMENT LLC
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------
Title: Managing Director
----------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date first written
above.
SKYLINE VENTURE PARTNERS, L.P.
By: Skyline Venture Management LLC
Its: General Partner
By: /s/ Xxxx Xxxxxx
----------------------------------
Xxxx Xxxxxx
Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date first written
above.
THE XXXXXXXX FUND, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Xxxx X. Xxxxx
President
EXHIBIT A
SCHEDULE OF PURCHASERS
Number of Securities of Aggregate
Name and Address Common Stock Purchase Price
---------------- ------------ --------------
The Bay City Capital Fund I, L.P. 857,143
000 Xxxxxxx Xxxxxx, Xxxxx 000 $ 3,000,000.50
Xxx Xxxxxxxxx, XX 00000
The Xxxxxxxx Fund, Inc. 857,143 $ 3,000,000.50
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Skyline Venture Partners, L.P. 285,714 $ 999,999.00
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
--------- --------------
TOTAL: 2,000,000 $ 7,000,000.00
EXHIBIT B
LJL BIOSYSTEMS, INC.
COMPLIANCE CERTIFICATE
The undersigned, Xxx X. Xxxxxx, hereby certifies as follows:
1. The undersigned is the duly elected President and Chief Executive
Officer of LJL BioSystems, Inc., a Delaware corporation (the "COMPANY").
2. The representations and warranties of the Company set forth in
Section 2 of the Common Stock Purchase Agreement (the "AGREEMENT") dated
January 25, 1999 are true and correct in all material respects as though
made on and as of the date hereof.
3. The Company has performed and complied with all covenants,
agreements, obligations and conditions contained in the Agreement to be
performed by the Company on or prior to the Closing Date.
4. Since the date of the Company's most recent filing with the SEC,
there has not been any material adverse change in the assets, liabilities,
financial condition, or operations of the Company; PROVIDED, HOWEVER, that
changes in the ordinary course of business, including but not limited to the
use of cash and increase in liabilities, shall not be deemed to be a material
adverse change.
The undersigned has executed this Certificate this 27th day of January,
1999.
/s/ Xxx X. Xxxxxx
----------------------------------
Xxx X. Xxxxxx, President and Chief
Executive Officer
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
(Included herewith as Exhibit 4.5)
EXHIBIT D
OPINION OF COMPANY COUNSEL
[Venture Law Group Letterhead]
January 27, 1999
To the Purchasers Listed on EXHIBIT A to the
LJL BioSystems, Inc. Common Stock
Purchase Agreement
Ladies and Gentlemen:
We have acted as counsel for LJL Biosystems, Inc., a Delaware
corporation (the "COMPANY"), in connection with the sale by the Company to
you of shares of the Company's Common Stock pursuant to the Common Stock
Purchase Agreement dated January 25, 1999 (the "PURCHASE AGREEMENT"), by and
among the Company and the persons listed on EXHIBIT A attached thereto (the
"PURCHASERS"), and the negotiation, execution and delivery by the Company of
the Registration Rights Agreement dated January 27, 1999 (the "REGISTRATION
RIGHTS AGREEMENT") by and among the Company and the Purchasers. This opinion
is given to you in compliance with Section 4.7 of the Purchase Agreement.
The Purchase Agreement and the Registration Rights Agreement are referred to
herein collectively as the "AGREEMENTS." Unless defined herein, capitalized
terms have the meaning given to them in the Agreements.
In rendering this opinion, we have made such legal and factual
examinations and inquiries as we have deemed advisable or necessary for the
purpose of rendering this opinion. In addition, we have examined originals
or copies of documents, corporate records and other writings which we
consider relevant for the purposes of this opinion. In such examination, we
have assumed the genuineness of all signatures on original documents, the
conformity to original documents of all copies submitted to us and the due
execution and delivery of all documents where due execution and delivery are
a prerequisite to the effectiveness thereof. In making our examination of
documents executed by entities other than the Company, we have assumed that
each other entity had the power to enter into and perform all its obligations
thereunder and we also have assumed the due authorization by each such other
entity of all requisite actions and the due execution and delivery of such
documents by each such other entity.
Whenever our opinion herein with respect to the existence or absence of
facts is indicated to be based on our knowledge or belief, it is intended to
signify that in the course of our representation of the Company in connection
with the transactions referred to in the first paragraph hereof, no
information has come to the attention of Xxxx Xxxxx, Xxxxx Xxxxxx or Xxxxxx
Xxxxx (the only lawyers at Venture Law Group working on this transaction)
that would give them actual knowledge of the existence or absence of such
facts. We have not undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to our knowledge of
the existence or absence of such facts should be drawn from the fact of our
representation of the Company.
In rendering the opinion set forth in paragraph (a) below as to the
existence and good standing of the Company in Delaware, we have relied
exclusively on a certificate of a recent date of public officials of the
State of Delaware.
January 27, 1999
Page 2
In rendering the opinion expressed in paragraph (g) below, we have
assumed and express no opinion with respect to the following: (i) that the
representations and warranties of the Purchasers set forth in the Agreements
are true and complete; and (ii) that the information provided by the Company
to the Purchasers in connection with such offer and sale is accurate and
complete. We have also assumed the accuracy of, and have relied upon, the
Company's representations to us that the Company has made no offer to sell
the Securities sold by it by means of any "GENERAL SOLICITATION," as defined
in Regulation D under the Securities Act or the "PUBLICATION OF ANY
ADVERTISEMENT" (as defined under the California Corporate Securities Act of
1968, as amended, and the regulations thereunder).
The opinions hereinafter expressed are subject to the following further
qualifications:
(i) Our opinions are qualified by the effect of bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors generally, including,
without limitation, laws relating to fraudulent transfers or conveyances,
preferences and equitable subordination;
(ii) Our opinions are qualified by the limitations imposed by
general principles of equity upon the availability of equitable remedies or
the enforcement of provisions of the Agreements; and the effect of judicial
decisions which have held that certain provisions are unenforceable when
their enforcement would violate the implied covenant of good faith and fair
dealing, or would be commercially unreasonable, or where their breach is not
material;
(iii) We express no opinion as to the enforceability of a
requirement that provisions of the Agreements may only be waived in writing
to the extent an oral agreement has been executed modifying provisions of the
Agreements;
(iv) Our opinion is based upon current statutes, rules,
regulations, cases and official interpretive opinions, and it covers certain
items that are not directly or definitively addressed by such authorities;
(v) We express no opinion as to the effect of judicial
decisions which may permit the introduction of extrinsic evidence to modify
the terms or the interpretation of the Agreements;
(vi) We express no opinion as to the enforceability of
provisions of the Agreements which purport to establish evidentiary standards
or to make determinations conclusive;
(vii) We express no opinion as to the enforceability of
provisions of the Agreements expressly or by implication waiving broadly or
vaguely stated rights, or waiving rights granted by law where such waivers
are against public policy;
(viii) We express no opinion as to the enforceability of
provisions of the Agreements providing that rights or remedies are not
exclusive, that every right or remedy is cumulative, or that the election of
a particular remedy or remedies does not preclude recourse to one or more
other remedies.
January 27, 1999
Page 3
(ix) We express no opinion as to compliance with applicable
antifraud statutes, rules or regulations of applicable state and federal laws
concerning the issuance or sale of securities; and
(x) We express no opinion as to the enforceability of a
provisions in the Registration Rights Agreement purporting to provide for
indemnification and contribution under certain circumstances may be
unenforceable.
Based upon and subject to the foregoing, we are of the opinion that:
(a) The Company is a corporation duly organized and existing under the
laws of the State of Delaware, and is in good standing under such laws. The
Company has the requisite corporate power to own and operate its properties
and assets, and to carry on its business as presently conducted. The Company
is duly qualified to do business as foreign corporations in each state in
which the failure to be so qualified would have a material adverse effect on
the Company.
(b) The Company has the requisite corporate power to execute and
deliver the Agreements, to sell and issue the Common Stock sold by it
thereunder and to carry out and perform its obligations under the terms of
the Agreements.
(c) All corporate action on the part of the Company, its directors and
stockholders necessary for the authorization, execution, delivery and
performance of the Agreements by the Company, the authorization, sale,
issuance and delivery of the Common Stock and the performance of all of the
Company's obligations under the Agreements has been taken. The Agreements
constitute valid and binding obligations of the Company enforceable in
accordance with their terms. The Common Stock sold by the Company in
conformity with the terms of the Purchase Agreement constitute validly
issued, fully paid and nonassessable securities of the Company.
(d) The execution, delivery and performance of and compliance with the
Agreements, and the issuance of the Common Stock have not resulted and will
not result in any material violation of, or material conflict with, or
constitute a material default under (i) any of the agreements attached as
exhibits to the Company's SEC Documents, (ii) the Company's Certificate of
Incorporation or Bylaws or (iii) any statute, rule or regulation or any
judgment or order known to us to which the Company is a party, or by which
the Company is bound.
(e) To our knowledge, there are no actions, suits, proceedings or
investigations pending against the Company or its properties before any court
or governmental agency that, either in any case or in the aggregate, if
determined adversely to the Company, would result in a material adverse
change in the business or financial condition of the Company or in any
material liability on the part of the Company, and none that questions the
validity of the Agreements or any action taken or to be taken in connection
therewith.
(f) To our knowledge, no material consent, approval or authorization of
or designation, declaration or filing with, any governmental authority on the
part of the Company is required in connection with the valid execution and
delivery of the Agreements, or the offer, sale or issuance of the
January 27, 1999
Page 4
Common Stock sold by the Company, or the consummation of any other
transaction contemplated by the Agreements, except the filings that are
permitted to be made after the Closing that may be required under state and
federal securities laws and rules of the National Association of Securities
Dealers.
(g) The offer, sale and issuance of the Common Stock in conformity with
the terms of the Purchase Agreement constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act and the
securities laws of the State of California.
We express no opinion as to matters governed by any laws other than the
laws of the State of California, the General Corporation Law of the State of
Delaware and the federal law of the United States of America. We express no
opinion as to whether the laws of any particular jurisdiction apply, and no
opinion to the extent that the laws of any jurisdiction other than those
identified above are applicable to the Agreements or the transactions
contemplated thereby.
This opinion is furnished to you pursuant to Section 4.7 of the Purchase
Agreement and is solely for your benefit and may not be relied on by, nor may
copies be delivered to, any other person without our prior written consent.
We assume no obligation to inform you of any facts, circumstances, events or
changes in the law that may hereafter be brought to our attention that may
alter, affect or modify the opinion expressed herein.
Sincerely,
VENTURE LAW GROUP,
A Professional Corporation
/s/ Venture Law Group
