EXHIBIT 10.242
FIRST ADDENDUM TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This First Addendum ("Addendum") to the Amended and Restated
Registration Rights Agreement dated June 29, 2000 ("Registration Rights
Agreement") by and among Ligand Pharmaceuticals Incorporated, a Delaware
corporation (the "Company"), and those entities (the "Investors") set forth on
SCHEDULE A to the Registration Rights Agreement is effective as of December 20,
2001.
RECITALS
A. The Company has issued 274,843 shares of the Company's Common Stock
(the "Incentive Shares") to Elan International Services, Ltd., a Bermuda
corporation ("EIS"), pursuant to the terms of that certain Incentive Agreement
dated December 20, 2001 among the Company, EIS and Monksland Holdings, B.V.
B. This Addendum serves to include the Incentive Shares within the
definition of "Registrable Securities" under the Registration Rights Agreement
pursuant to Section 2.6 of the Registration Rights Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth in the Registration Rights Agreement, the parties agree as follows:
1. Section 1.1, paragraph (f) of the Registration Rights Agreement is
hereby restated in its entirety as follows:
"(f) The term "Registrable Securities" means (i) the shares of
Common Stock (or the shares of such other class of stock into which
the Common Stock is converted) issuable upon conversion of those
certain Unsecured Convertible Promissory Notes dated October 30, 1997
issued to S.R. One Limited (the "S.R. One Notes") pursuant to the
Stock and Note Purchase Agreement dated February 3, 1995 (and upon
such conversion of the S.R. One Notes, SCHEDULE A shall be updated to
include such shares), (ii) the shares of Common Stock (or the shares
of such other class of stock into which the Common Stock is converted)
issuable upon conversion of that certain Warrant (the "Warrant")
issued to SmithKline Xxxxxxx plc pursuant to the Stock Purchase
Agreement dated April 24, 1998 (and upon such conversion of the
Warrant, SCHEDULE A shall be updated to include such shares), (iii)
the 1,278,970 shares of Common Stock (or that number of shares of such
other class of stock into which the Common Stock is converted) issued
to EIS pursuant to the Stock Purchase Agreement dated September 30,
1998, (iv) the 437,768 shares of Common Stock (or that number of
shares of such other class of stock into which the Common Stock is
converted) issued to EIS pursuant to the Securities Purchase
Agreement, dated November 6, 1998 (the "Elan Securities Purchase
Agreement"), (v) the shares of Common Stock (or the shares of such
other class of stock into which the Common Stock is converted) issued
or issuable upon conversion of the Zero Coupon Convertible Senior
Notes due 2008 (the "Elan Notes") issued pursuant to the Elan
Securities Purchase
Agreement (and upon such conversion of the Elan Notes, SCHEDULE A
shall be updated to include such shares), (vi) the 429,185 shares of
Common Stock (or the shares of such other class of stock into which
the Common Stock is converted) issued to Elan pursuant to the
Development, Licence and Supply Agreement dated November 9, 1998, and
as amended (the "Elan License Agreement"), (vii) the shares of Common
Stock that may be issued pursuant to the Elan License Agreement (and
upon each such issuance, SCHEDULE A shall be updated to include such
shares), (viii) the shares of Common Stock (or the shares of such
other class of stock into which the Common Stock is converted)
issuable to EIS upon exercise of that certain Warrant (the "EIS
Warrant") dated August 4, 1999 (and upon such exercise of the EIS
Warrant, SCHEDULE A shall be updated to include such shares), (ix) the
52,742 shares of Common Stock (or the shares of such other class of
stock into which the Common Stock is converted) issued to EIS pursuant
to the Stock Purchase Agreement dated September 30, 1999, (x) the
shares of Common Stock (or the shares of such other class of stock
into which the Common Stock is converted) issuable upon exercise of
those certain Series X Warrants dated October 6, 1999 (the "X-Ceptor
Warrants") (and upon any such exercise of the X-Ceptor Warrants,
SCHEDULE A shall be updated to include such shares), (xi) the 188,572
shares of Common Stock (or that number of shares of such other class
of stock into which the Common Stock is converted) issued to EIS
pursuant to the Incentive Agreement dated December 31, 1999, (xii) the
98,580 shares of Common Stock (or that number of shares of such other
class of stock into which the Common Stock is converted) issued to EIS
pursuant to the Incentive Agreement dated March 1, 2000, (xiii) the
274,843 shares of Common Stock (or that number of shares of such other
class of stock into which the Common Stock is converted) issued to EIS
pursuant to the Incentive Agreement dated December 20, 2001, and (xiv)
any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which
is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of the shares referenced in (i), (ii),
(iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii) and
(xiii) above, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which rights under
this Agreement are not assigned.
2. SCHEDULE A of the Registration Rights Agreement is hereby restated
in its entirety as attached to this Addendum.
3. This Addendum may be executed in one or more counterparts.
4. This Addendum shall be binding upon the Company, EIS, each holder
of Registrable Securities and each future holder of Registrable Securities
pursuant to Section 2.6 of the Registration Rights Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
2
IN WITNESS WHEREOF, the parties have executed this Addendum as of the
date first above written.
LIGAND PHARMACEUTICALS INCORPORATED
By: /S/XXXX X. XXXXX
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Its: SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER
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ELAN INTERNATIONAL SERVICES, LTD.
By: /S/XXXXX XXXXXX
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Its: PRESIDENT
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ELAN CORPORATION, PLC
By: /S/XXXXXXX XXXXXX
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Its: COMPANY SECRETARY
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[SIGNATURE PAGE TO FIRST ADDENDUM
TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
SCHEDULE A
to
First Addendum to
Amended and Restated Registration Rights Agreement
----------------------------------------------------- ----------------------
SHARES
NAME ISSUED
----------------------------------------------------- ----------------------
Elan Corporation, plc 429,185
Elan International Services, Ltd. 6,943,104
TOTAL: 7,372,289
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A-1
XXXXXXX
ATTORNEYS AT LAW
December 20, 0000
Xxxx Xxxxxxxxxxxxx Services, Ltd
000 Xx. Xxxxx Xxxxx
Xxxxxx, Xxxxxx Xxxxxx
Xxxxxxx XX 04
Ladies and Gentlemen:
We have acted as counsel for Ligand Pharmaceuticals Incorporated, a
Delaware corporation (the "Company"), in connection with the issuance and sale
of 274,843 shares of its Common Stock (the "Incentive Shares") pursuant to that
certain Incentive Agreement (the "Agreement") dated December 20, 2001 among the
Company, you and Monksland Holdings, B.V. This opinion letter is being rendered
to you in connection with the issuance and sale of the Incentive Shares.
In connection with the opinions expressed herein, we have made such
examination of matters of law and of fact as we considered appropriate or
advisable for purposes hereof. As to matters of fact material to the opinions
expressed herein, we have relied upon the representations and warranties as to
factual matters contained in and made by the Company pursuant to the Agreement
and upon certificates and statements of government officials and of officers of
the Company. We have also examined originals or copies of such corporate
documents or records of the Company as we have considered appropriate for the
opinions expressed herein. We have assumed for the purposes of this opinion
letter the genuineness of all signatures, the legal capacity of natural persons,
the authenticity of the documents submitted to us as originals, the conformity
to the original documents of all documents submitted to us as certified,
facsimile or photostatic copies, and the authenticity of the originals of such
copies.
In rendering this opinion letter we have also assumed that the
representations and warranties made in the Agreement by you are true and
correct.
This opinion letter relates solely to the laws of the State of
California, the General Corporation Law of the State of Delaware and the federal
securities law of the United States, and we express no opinion with respect to
the effect or application of any other laws. Special rulings of authorities
administering such laws or opinions of other counsel have not been sought or
obtained.
Based upon our examination of and reliance upon the foregoing and
subject to the limitations, exceptions, qualifications and assumptions set forth
below, we are of the opinion that as of the date hereof:
December 20, 2001
Page 2
1. The Incentive Shares to be issued pursuant to the Agreement have
been duly authorized and, upon issuance pursuant to the terms of the Agreement,
will be validly issued, nonassessable and fully paid.
2. Based in part upon the representations of you in the Agreement, the
offer and sale of the Incentive Shares to you pursuant to the terms of the
Agreement are exempt from the registration requirements of Section 5 of the
Securities Act of 1933, as amended, and from the qualification requirements of
the California Corporate Securities Law of 1968, as amended.
Our opinions expressed above are specifically subject to the following
limitations, exceptions, qualifications and assumptions:
(A) We express no opinion as to the Company's compliance or
noncompliance with applicable federal or state antifraud or antitrust statutes,
laws, rules and regulations.
(B) We express no opinion concerning the past, present or future fair
market value of any securities.
(C) We express no opinion as to your compliance with any Federal or
state law relating to your legal or regulatory status or the nature of your
business.
(D) We express no opinion as to the effect of subsequent issuances of
securities of the Company, to the extent that further issuances which may be
integrated with the issuance contemplated by the Agreement may include
purchasers that do not meet the definition of "accredited investors" under Rule
501 of Regulation D and equivalent definitions under state securities or "blue
sky" laws.
This opinion letter is rendered as of the date first written above
solely for your benefit in connection with the Agreement and may not be
delivered to, quoted or relied upon by any person other than you, or for any
other purpose, without our prior written consent. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Agreement or
the Company. We assume no obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which
may alter, affect or modify the opinions expressed herein.
Very truly yours,
/S/Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
XXXXXXX, PHLEGER & XXXXXXXX LLP
