STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "AGREEMENT") is made and entered
into as of December 23, 1996 by and between La Jolla Pharmaceutical Company,
a Delaware corporation (the "COMPANY"), and Xxxxxx Laboratories, an Illinois
corporation (the "PURCHASER").
A. The Company and the Purchaser are parties to that certain
License and Supply Agreement of even date herewith (the "LICENSE AGREEMENT")
pursuant to which the Company and the Purchaser will cooperate in the
development and marketing of LJP 394, the Company's drug candidate for lupus
erythematosus.
B. The purchase by the Purchaser of capital stock from the Company
as described herein is an essential inducement to the Company to enter into
the License Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants hereinafter set forth, the Company and the Purchaser hereby
agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth below:
"ADDITIONAL INVESTMENT RIGHT" has the meaning set forth in SECTION
2(b)(i).
"ADDITIONAL SHARES" has the meaning set forth in SECTION 2(b)(i).
"AFFILIATE" of a party means any person or entity controlling,
controlled by, or under common control with such party, whether directly or
indirectly through one or more intermediaries. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used with
respect to any person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such person, whether through the ownership of voting securities, by agreement
or otherwise.
"BENEFICIAL OWNERSHIP" shall have the meaning provided in Rule
13d-3 under the Exchange Act.
"BOARD" means the board of directors of the Company.
"BUSINESS DAY" means any day other than a Saturday, Sunday, or other
day on which commercial banking institutions in California or Illinois are
authorized or obligated by law to be closed.
"COMMON STOCK" means the Company's common stock, par value $.01 per
share.
"EQUITY SECURITY" means any Voting Stock and any options, warrants,
convertible securities, or other rights to acquire Voting Stock, but
excluding any rights issued by the Company under any stockholder rights plan
that may be implemented by the Company and securities issuable upon exercise
of such rights.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FAIR MARKET VALUE" of the Common Stock as of any date of
determination means the arithmetic mean of the reported last sale price of
the Common Stock regular way on each of the 20 trading days immediately
preceding such date of determination or, if no such sale takes place on any
of such days, the average of the reported closing bid and asked prices
regular way, in each case on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or, if the Common
Stock is not listed or admitted to trading on any national securities
exchange, the closing sales prices, or, if there are no closing sales prices
on any such days, the average of the closing bid and asked prices, in the
Nasdaq Stock Market or other over-the-counter market as reported by the
National Association of Securities Dealers Automated Quotation System, or, if
not so reported, the fair market value of the Common Stock as estimated by a
nationally recognized investment banking firm selected by Purchaser and
acceptable to the Company in the exercise of its reasonable discretion, which
estimate shall be prepared at the expense of the Company.
"GOVERNMENTAL AUTHORITY" means any governmental, quasi-governmental,
judicial, or regulatory agency or entity or subdivision thereof with
jurisdiction over the Company or the Purchaser or any of their subsidiaries
or any of the transactions contemplated by this Agreement.
"INITIAL SHARES" has the meaning set forth in SECTION 2(a).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, assets, results of operations, properties, or financial or
operating condition of the Company, or the ability of the Company to perform
its obligations under this Agreement or the License Agreement or consummate
the transactions contemplated hereby.
"PURCHASER INTEREST" means, as of any date, the percentage of the
Total Voting Power Beneficially Owned by the Purchaser on such date.
"REGISTRATION STATEMENT" means the Company's registration statement
on Form S-3, Registration No. 333-04943, including all exhibits thereto and
the final prospectus included therein.
"SEC" means the Securities and Exchange Commission.
"SEC REPORTS" means the Company's Annual Report on Form 10-K for the
year ended December 31, 1995 and quarterly reports on Form 10-Q for the
quarters ended March 31, 1996, June 30, 1996 and September 30, 1996, each as
filed with the SEC and including all exhibits thereto.
2
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means the Initial Shares and any and all Additional Shares
purchased pursuant to this Agreement.
"STANDSTILL PERIOD" means the period beginning on the date of this
Agreement and ending on the third anniversary of the date of this Agreement.
"TOTAL VOTING POWER" means, at any date, the total number of votes
that may be cast in the election of directors of the Company at any meeting
of stockholders of the Company held on such date assuming all shares of
Voting Stock were present and voted at such meeting, other than votes that
may be cast only by one class or series of stock (other than Common Stock) or
upon the happening of a contingency.
"VOTING STOCK" means Common Stock and all other securities of the
Company, if any, entitled to vote generally in the election of the Board.
2. SALE AND PURCHASE OF STOCK.
(a) INITIAL PURCHASE.
(i) Subject to Section 2(d), the Company shall sell and issue
to the Purchaser, and the Purchaser shall purchase from the Company, One
Million Fifty (1,000,050) shares of Common Stock (the "INITIAL SHARES") for
an aggregate purchase price of Four Million Dollars ($4,000,000) (the
"INITIAL PURCHASE PRICE"). The closing of the issuance and sale to the
Purchaser of the Initial Shares (the "INITIAL CLOSING") shall occur at the
Company's headquarters, or such other place as the parties may mutually
agree, five Business Days after the execution and delivery of this Agreement
by the Purchaser and the Company, or, if all of the conditions set forth in
SECTION 2(d) have not been satisfied or waived as of that date, on the first
Business Day thereafter that all of the conditions set forth in SECTION 2(d)
have been satisfied or waived (the "INITIAL CLOSING DATE"). At the Initial
Closing, the Purchaser shall deliver the Initial Purchase Price to the
Company by wire transfer to the account specified on SCHEDULE 1, and in
exchange therefor the Company shall issue the Initial Shares to the Purchaser
and deliver to the Purchaser's representative present at the Initial Closing
or mail to the Purchaser, at the Purchaser's discretion, a valid stock
certificate registered in the name of the Purchaser representing the Initial
Shares. If the Purchaser elects to have the stock certificate mailed, the
Company shall telecopy to the Purchaser a copy of such certificate
concurrently with the Purchaser's delivery of the Initial Purchase Price.
3
(b) ADDITIONAL PURCHASES.
(i) Subject to the limitations set forth in SECTION 2(b)(ii),
the Company shall have the right (the "ADDITIONAL INVESTMENT RIGHT") to
require the Purchaser to purchase additional shares of Common Stock
("ADDITIONAL SHARES") during the 1997 and 1998 calendar years (the "EXERCISE
PERIOD"). The Company, acting in its sole discretion, may exercise the
Additional Investment Right at any time and from time to time during the
Exercise Period by delivering a written notice (an "EXERCISE NOTICE") to the
Purchaser stating the total consideration to be paid by the Purchaser for the
Additional Shares being sold pursuant to such exercise of the Additional
Investment Right (an "ADDITIONAL PURCHASE PRICE") and the date (which shall
be a Business Day not fewer than five Business Days or more than ten Business
Days after the Purchaser's receipt of the Exercise Notice) on which the
purchase and sale of the Additional Shares subject to that notice is expected
to take place. Each closing of the issuance and sale to the Purchaser of
Additional Shares (each an "ADDITIONAL CLOSING") shall occur at the Company's
headquarters, or such other place as the parties may mutually agree, on the
date specified in the applicable Exercise Notice, or, if all of the
conditions set forth in SECTION 2(e) have not been satisfied or waived as of
that date, on the first Business Day thereafter that all of the conditions
set forth in SECTION 2(e) have been satisfied or waived (each an "ADDITIONAL
CLOSING DATE"). At each Additional Closing, the Purchaser shall deliver the
Additional Purchase Price specified in the applicable Exercise Notice to the
Company by wire transfer to the account specified in SCHEDULE 1, and in
exchange therefor the Company shall issue to the Company that number of
Additional Shares as is determined by dividing the Additional Exercise Price
delivered by the Fair Market Value of the Common Stock on such Additional
Closing Date, and deliver to the Purchaser's representative present at the
Additional Closing or mail to the Purchaser, at the Purchaser's discretion, a
valid stock certificate registered in the name of the Purchaser representing
such Additional Shares. If the Purchaser elects to have the stock
certificate mailed, the Company shall telecopy to the Purchaser a copy of
such certificate concurrently with the Purchaser's delivery of the Additional
Purchase Price.
(ii) Notwithstanding anything herein to the contrary, each
exercise of the Additional Investment Right is subject to the following
limitations:
(A) The Purchaser shall not be obligated to pay more than
Four Million Dollars ($4,000,000) in aggregate Additional Purchase Price in
any calendar year, except as set forth in SECTION 2(b)(ii)(C) and except that
if any Exercise Notice delivered after October 1, 1997 and before January 1,
1998 does not result in payment by Abbott of the Additional Purchase Price
specified therein because the condition to Xxxxxx'x purchase obligation set
forth in SECTION 2(e)(i)(E) is not satisfied or waived, then the amount of
such unpaid Additional Purchase Price (the "UNPAID PRICE") shall be added to
the maximum aggregate Additional Purchase Price that the Purchaser may
(subject to satisfaction of the applicable conditions herein, including the
condition in SECTION 2(e)(i)(E)) be obligated to pay in the calendar year of
1998, but only if the Company delivers before March 31, 1998 an Exercise
Notice or Exercise Notices specifying, in the aggregate, an Additional
Purchase Price at least equal to the Unpaid Price.
4
(B) In any calendar year that the Company exercises the
Additional Investment Right, the aggregate Additional Purchase Price
specified in any Exercise Notice delivered in that year must be at least Two
Million Dollars ($2,000,000).
(C) In no event shall the Purchaser be required to
purchase pursuant to this SECTION 2(b) a number of Shares that, together with
the Shares then owned by the Purchaser, would exceed 19% of the then
outstanding shares of Common Stock of the Company (giving effect to the
issuance to Purchaser), and the number of Additional Shares to be purchased
on any Additional Closing Date shall, at the Purchaser's option, be reduced
by such excess number of shares, provided that the Fair Market Value of the
Shares not sold to the Purchaser in 1997 as a result of any such reduction
shall be added to the maximum aggregate Additional Purchase Price that the
Purchaser may (subject to satisfaction of the applicable conditions herein,
including the condition in SECTION 2(b)(ii)(C)) be obligated to pay in 1998.
(c) COMPANY DISCRETION. The Purchaser acknowledges that exercise
of the Additional Investment Right is within the Company's sole discretion,
and that the Purchaser may be required to purchase Additional Shares at times
when the Fair Market Value thereof is relatively high. The Purchaser has no
right to purchase Additional Shares at any particular price other than as set
forth in SECTION 2(e)(i)(E).
(d) CONDITIONS TO THE PURCHASE AND SALE OF THE INITIAL SHARES.
(i) CONDITIONS TO THE PURCHASER'S OBLIGATION. The obligation
of the Purchaser to purchase and pay for the Initial Shares shall be subject
to the satisfaction (or waiver in writing by the Purchaser) on or prior to
the Initial Closing Date of the following conditions.
(A) The representations and warranties contained in
SECTION 3 shall be true and correct in all material respects as of the
Initial Closing Date, and the covenants and agreements contained herein to be
performed by the Company on or prior to the Initial Closing Date shall have
been performed in all material respects on or prior to the Initial Closing
Date.
(B) The Company shall have entered into, or be entering
into concurrently herewith, the License Agreement.
(C) The Company shall have delivered to the Purchaser the
following documents:
(1) a certificate signed by the Company's Chief
Executive Officer, dated the Initial Closing Date, certifying that the
conditions specified in SECTION 2(d)(i)(A) have been satisfied;
(2) certified copies of resolutions duly adopted by
the Company's Board of Directors authorizing the execution, delivery and
performance of this
5
Agreement, the License Agreement, and the other transactions contemplated
hereby and thereby;
(3) certified copies of the Certificate of
Incorporation and By-laws of the Company, each as in effect on the Initial
Closing Date;
(4) copies of any third party and governmental
consents, approvals and filings required in connection with the consummation
of the transactions contemplated hereby.
(D) The purchase of the Initial Shares by the Purchaser
hereunder, and the performance of the transactions contemplated hereby and by
the License Agreement, shall not be prohibited by any applicable law,
administrative or governmental rule or regulation or order of a court of
competent jurisdiction; and no action, suit or proceeding shall exist or be
threatened that would prevent, restrain or condition in any material respect
the consummation of the transactions contemplated hereby or by the License
Agreement.
(E) All material consents and approvals of, or filings
with, any third party or Governmental Authority required in connection with
the execution and delivery of this Agreement and the License Agreement and
the consummation of the transactions contemplated hereby and thereby shall
have been obtained.
(ii) CONDITIONS TO THE COMPANY'S OBLIGATION. The obligation of
the Company to issue and sell the Initial Shares shall be subject to the
satisfaction (or waiver in writing by the Company) on or prior to the Initial
Closing Date of the following conditions:
(A) The representations and warranties contained in
SECTION 4 shall be true and correct in all material respects as of the
Initial Closing Date, and the covenants and agreements contained herein to be
performed by the Purchaser on or prior to the Initial Closing Date shall have
been performed in all material respects on or prior to the Initial Closing
Date.
(B) The issuance and sale of the Initial Shares by the
Company hereunder, and the performance of the transactions contemplated
hereby and by the License Agreement, shall not be prohibited by any
applicable law, administrative or governmental rule or regulation or order of
a court of competent jurisdiction; and no action, suit or proceeding shall
exist or be threatened that would prevent, restrain or condition in any
material respect the consummation of the transactions contemplated hereby or
by the License Agreement.
(C) All material consents and approvals of, or filings
with, any third party or Governmental Authority required in connection with
the execution and delivery of this Agreement and the License Agreement and
the consummation of the transactions contemplated hereby and thereby shall
have been obtained
6
(D) The Purchaser shall have entered into, or be entering
into concurrently herewith, the License Agreement.
(e) CONDITIONS TO THE PURCHASE AND SALE OF THE ADDITIONAL SHARES.
(i) CONDITIONS TO THE PURCHASER'S OBLIGATION. The obligation
of the Purchaser to purchase and pay for the Additional Shares shall be
subject to the satisfaction (or waiver in writing by the Purchaser) on or
prior to the applicable Additional Closing Date of the following conditions:
(A) The purchase of the Additional Shares by the
Purchaser hereunder shall not be prohibited by any applicable law,
administrative or governmental rule or regulation or order of a court of
competent jurisdiction; and no action, suit or proceeding shall exist or be
threatened that would prevent, restrain or condition in any material respect
the consummation of such purchase.
(B) All material consents and approvals of, or filings
with, any third party or Governmental Authority required in connection with
the purchase of the Additional Shares shall have been obtained.
(C) On and prior to the Additional Closing Date, the
License Agreement shall remain in full force and effect and no notice of
termination of the License Agreement shall have been delivered by the
Purchaser or the Company (and not cured or withdrawn) in accordance with the
terms of the License Agreement.
(D) The Company shall have delivered to the Purchaser a
certificate signed by each of the Company's President and Chief Financial
Officer, dated the date of the Exercise Notice, certifying, as of the date of
the Exercise Notice, that each such officer knows of no event, condition or
pending announcement that (1) has not been publicly disclosed, (2) is
specifically applicable to the Company (as opposed to events, conditions or
announcements likely to affect generally the market or companies similar to
the Company), and (3) would reasonably be expected to have a material adverse
effect on the Fair Market Value of the Common Stock.
(E) The Fair Market Value of the Common Stock as of the
applicable Additional Closing Date shall be at least $2.00 per share,
provided that this condition shall not be applicable if the fact that the
Fair Market Value of the Common Stock is less than $2.00 per share is
attributable to (1) factors having an adverse effect on the public securities
markets generally, (2) factors having an adverse effect on biotechnology or
pharmaceutical stocks generally or stocks of biotechnology companies similar
to the Company in terms of market capitalization, product mix or development
stage or pipeline, or financial condition, or (3) any action or inaction of
the Purchaser or any transaction between the Purchaser and any third party.
(ii) CONDITIONS TO THE COMPANY'S OBLIGATION. The obligation of
the Company to issue and sell the Additional Shares shall be subject to the
satisfaction (or waiver
7
in writing by the Company) on or prior to the applicable Additional Closing
Date of the following conditions:
(A) The representations and warranties contained in
SECTION 4 shall be true and correct in all material respects as of the
Additional Closing Date, and the covenants and agreements contained herein to
be performed by the Purchaser on or prior to the Additional Closing Date
shall have been performed in all material aspects on or prior to the
Additional Closing Date.
(B) The issuance and sale of the Additional Shares by the
Company hereunder shall not be prohibited by any applicable law,
administrative or governmental rule or regulation or order of a court of
competent jurisdiction; and no action, suit or proceeding shall exist or be
threatened that would prevent, restrain or condition in any material respect
the consummation of such issuance and sale.
(C) All material consents and approvals of, or filings
with, any third party or Governmental Authority required in connection with
the issuance and sale of the Additional Shares shall have been obtained.
(D) On and prior to the Additional Closing Date, the
License Agreement shall remain in full force and effect and no notice of
termination of the License Agreement shall have been delivered by the
Purchaser or the Company (and not cured or withdrawn) in accordance with the
terms of the License Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Purchaser as follows:
(a) ORGANIZATION AND STANDING: ARTICLES AND BYLAWS. The Company
(i) is a corporation duly incorporated, validly existing, and in good
standing under the laws of Delaware, (ii) is qualified, licensed or
domesticated as a foreign corporation in all jurisdictions where such
qualification, license or domestication is required to own and operate its
properties and conduct its business in the manner and at the places presently
conducted; (iii) holds all franchises, grants, licenses, certificates,
permits, consents and orders, all of which are valid and in full force and
effect, from all state, federal and other domestic and foreign regulatory
authorities necessary to own and operate its properties and to conduct its
business in the manner and at the places presently conducted; and (iv) has
full 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, except where the failure to be so qualified,
licensed or domesticated, or to hold such franchises, grants, licenses,
certificates, permits, consents and orders or to have such power and
authority would not reasonably be expected to have a Material Adverse Effect.
(b) AUTHORIZATION. The Board has approved this Agreement and the
License Agreement and the transactions contemplated hereby and thereby, and
the Company has all requisite corporate power and authority to execute, enter
into and carry out the terms and conditions of this Agreement and the License
Agreement and to perform its obligations
8
hereunder and thereunder. This Agreement and the License Agreement have been
duly executed and delivered by the Company and (assuming this Agreement and
the License Agreement, as the case may be, constitute legal, valid, and
binding obligations of the Purchaser) constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their respective
terms, except that the enforceability of this Agreement and the License
Agreement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and except that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) CAPITAL STOCK. The authorized, issued and outstanding capital
stock of the Company consists solely of 32,000,000 shares of Common Stock and
8,000,000 shares of undesignated preferred stock, par value $0.01 per share,
of which approximately 16,262,491 shares of Common Stock and no shares of
preferred stock were issued and outstanding as of the date hereof. In
addition, approximately 4,022,476 shares of Common Stock were reserved for
issuance upon exercise of options and warrants outstanding as of the date
hereof. All of the issued and outstanding securities of the Company have
been duly authorized and validly issued, are fully paid and nonassessable,
and were issued in compliance with all applicable state and federal laws
regulating the offer, sale or issuance of securities (assuming, in the case
of issuances not effected pursuant to an effective registration statement
under the Securities Act, compliance with all such laws by the persons to
whom such securities were issued or sold and by any transferee of such
persons). No person or entity has or will have any right of first refusal or
any preemptive rights in connection with the issuance of the Shares. The
Shares have been duly authorized and, when delivered pursuant to this
Agreement will be duly and validly issued and outstanding, fully paid and
nonassessable, and free of any liens or restrictions (unless created by the
Purchaser or any of its Affiliates), other than restrictions under applicable
securities laws. Since the date of the final prospectus included in the
Registration Statement, the Company has not granted any (i) shares of capital
stock or Voting Stock of the Company, or (ii) securities of the Company
convertible into or exchangeable for shares of capital stock or Voting Stock
of the Company, other than options issued pursuant to the Company's 1994
Stock Incentive Plan with exercise prices equal to the fair market value of
the Common Stock on the date of grant, and shares of Common Stock issued
pursuant to the exercise of outstanding warrants or options. The Company
does not own shares of capital stock or other equity interests in any other
entity. There are no outstanding obligations of the Company or any of its
subsidiaries to repurchase, redeem or otherwise acquire any securities.
(d) NO VIOLATION. Neither the execution and delivery of this
Agreement and the License Agreement nor the consummation and performance of
the transactions contemplated hereby and thereby will (i) conflict with or
result in a breach of the terms, conditions or provisions of, (ii) constitute
a default under, (iii) result in the creation of any lien, claim or
encumbrance upon the Company's capital stock or assets pursuant to, (iv) give
any third party the right to accelerate any obligation under, (v) result in a
violation of, or (vi) require any authorization, consent, approval, exemption
or other action by or notice to any Governmental Authority pursuant to, the
Certificate of Incorporation or By-Laws of the
9
Company, or any law, statute, rule or regulation to which the Company or any
of its properties or assets are subject, or any agreement, instrument, order,
judgment or decree to which the Company or any of its properties or assets
are subject except where the event or circumstance described above would not
have a Material Adverse Effect.
(e) REPORTS AND FINANCIAL STATEMENTS. The Company has furnished
the Purchaser with copies of its Certificate of Incorporation, as amended to
date, its Bylaws, as currently in effect, the Registration Statement, and the
SEC Reports. The documents so furnished are true, correct and complete
copies of the original documents. The Registration Statement and the SEC
Reports, when filed with the Securities and Exchange Commission, complied in
all material respects with all applicable federal securities laws and
regulations. None of the SEC Reports or the Registration Statement,
including, without limitation, any financial statements or schedules included
or incorporated by reference therein, contained when filed any untrue
statement of a material fact, or omitted when filed to state a material fact
required to be stated or incorporated by reference therein or necessary in
order to make the statements therein, in light of the circumstances under
which made, not misleading. The audited financial statements of the Company
included in the Registration Statement and the SEC Reports and the unaudited
financial statements of the Company included in its quarterly reports on Form
10-Q for the quarters ended March 31, 1996, June 30, 1996 and September 30,
1996 fairly present, in conformity with generally accepted accounting
principles applied on a consistent basis (except as may be indicated in the
notes thereto), the financial position of the Company as of the dates thereof
and the results of operations and changes in financial position of the
Company for the periods then ended (subject, in the case of unaudited
financial statements, to normal year-end audit adjustments). Except as set
forth in the financial statements (and the footnotes thereto) included in the
SEC Reports, there are no material liabilities, debts, claims or obligations,
whether accrued, absolute, contingent or otherwise, of or affecting the
Company or any of its properties or assets.
(f) ABSENCE OF CHANGES. Since September 30, 1996, (i) the Company
has not entered into any transaction that was not in the ordinary course of
its business; and (ii) there has been no Material Adverse Effect.
(g) LITIGATION. There is no litigation, claim, action, proceeding
or investigation pending against the Company or, to the knowledge of the
Company, any basis therefor or threat thereof.
(h) TAX MATTERS. The Company has (i) timely filed all tax returns
that are required to have been filed by it with all appropriate federal,
state, county and local governmental agencies (and all such returns are true
and correct in all material respects) and (ii) timely paid all taxes owed by
it or which it is obligated to withhold from amounts owing to any employee
(including, but not limited to, social security taxes), creditor or third
party.
(i) OFFERING. Subject to the accuracy of the Purchaser's
representations in SECTION 4, the offer, issuance and sale of the Shares
constitute transactions exempt from the registration and prospectus delivery
requirements of Section 5 of the Securities Act and the
10
Company has obtained (or is exempt from the requirement to obtain) all
qualifications, permits, and other consents required by all applicable U.S.
state laws governing the offer, sale or issuance of securities.
(j) COMPLIANCE WITH LAWS. The Company is not in violation of any
applicable law or any regulation or requirement (including, but not limited
to, any law, regulation or requirement governing the quality of the
environment), the violation of which might have a Material Adverse Effect,
and the Company has not received notice of any such violation.
(k) ENVIRONMENTAL MATTERS. The Company has obtained all
Environmental Permits and is in compliance with all Environmental Laws and
Environmental Permits, except where failure to have obtained such permits or
to have so complied would not result in any Material Adverse Effect. There
is no civil, criminal or administrative claim, suit, proceeding or
investigation pending or, to the best knowledge of the Company, threatened
against the Company relating in any way to any Environmental Laws or
Environmental Permits and the Company knows of no fact or circumstance
(including, without limitation, any notice of potential liability) that would
give rise to any such claim, suit, proceeding or investigation.
"Environmental Laws" mean all laws applicable to the Company
relating to pollution or protection of the environment or human safety
including, without limitation, laws relating to emissions, discharges,
releases of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes or otherwise regulated substances or wastes
into the environment (including, without limitation, ambient air, surface
water, ground water or land), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or industrial, toxic,
hazardous or other regulated substances or wastes.
"Environmental Permits" mean all permits, licenses and
authorizations required for the operation of the business of the Company
under applicable Environmental Laws.
(l) PATENTS, COPYRIGHTS AND TRADEMARKS. To the Company's knowledge
after due investigation, (i) the Company owns or is licensed under all
patents, patent applications, licenses, trademarks, trade names, brand names,
inventions and copyrights necessary for the operation of its business as now
conducted and as proposed to be conducted, with no infringement of or
conflict with the rights of others, except where the failure so to own or be
licensed would not have a Material Adverse Effect; and (ii) there have been
no claims made against the Company for the assertion of the invalidity,
abuse, misuse or unenforceability of any of its patent, trademark, copyright,
trade secret or other proprietary rights and to the Company's knowledge there
are no grounds for the same.
(m) DISCLOSURE. This Agreement does not contain any untrue
statement of any material fact or omit to state a material fact necessary in
order to make the statements contained herein, in light of the circumstances
under which they were made, not misleading.
11
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Company and its officers, directors and agents
as follows:
(a) ORGANIZATION, GOOD STANDING, AND QUALIFICATION. The Purchaser
is a corporation duly incorporated, validly existing, and in good standing
under the laws of Illinois, and has all necessary power and authority under
applicable law to own its property and to conduct its business as now owned
and conducted.
(b) AUTHORITY. The Purchaser has all requisite corporate power and
authority to execute, enter into and carry out the terms and conditions of
this Agreement and the License Agreement, and to perform its obligations
hereunder and thereunder. This Agreement and the License Agreement have been
duly executed and delivered by the Purchaser and (assuming this Agreement and
the License Agreement, as the case may be, constitute the legal, valid, and
binding obligations of the Company) constitute the legal, valid and binding
obligations of the Purchaser, enforceable in accordance with their respective
terms, except that the enforceability of this Agreement and the License
Agreement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and except that the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) NO VIOLATION. Neither the execution and delivery of this
Agreement and the License Agreement nor the consummation of the transactions
contemplated hereby and thereby will conflict with or result in the material
breach of any term or provision of, or constitute a default under, any
charter provision, bylaw, material contract, order, law or regulation to
which the Purchaser or any of its Affiliates is a party or by which the
Purchaser or any of its Affiliates or any of their respective material assets
or properties is in any way bound or obligated.
(d) GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any Governmental Authority having jurisdiction over the business
of the Purchaser or any of its Affiliates is required in connection with the
transactions contemplated by this Agreement or the License Agreement, except
where failure to obtain such would not have a Material Adverse Effect.
(e) BROKERS. No finder, broker, agent, financial advisor, or other
intermediary has acted on behalf of the Purchaser or any of its Affiliates in
connection with any of the transactions contemplated by this Agreement or the
License Agreement or is entitled to any payment in connection herewith or
therewith.
(f) OWNERSHIP OF VOTING STOCK. Neither the Purchaser nor any
person with whom the Purchaser is acting as a partnership, limited
partnership, syndicate or other group (within the meaning of Section 13(d)(3)
of the Exchange Act) for the purpose of acquiring, holding or disposing of
securities issued by the Company Beneficially Owns (directly or indirectly)
any Common Stock as of the date of this Agreement other than the Shares being
purchased by the Purchaser hereunder.
12
(g) SECURITIES MATTERS.
(i) The Purchaser acknowledges that an investment in the
Company involves an EXTREMELY HIGH DEGREE OF RISK and that the Purchaser may
lose its entire investment in the Shares.
(ii) The Purchaser is acquiring the Shares without having been
furnished any offering literature or prospectus specifically prepared in
connection with the offer and sale of the Shares pursuant hereto. The
Purchaser has received the SEC Reports and the Registration Statement and all
additional information requested from the Company and acknowledges that the
Company has made available to it or its advisors the opportunity to obtain
additional information to evaluate the merits and risks of the purchase of
the Shares. The Purchaser has had an opportunity to discuss the Company's
business, management and financial affairs with the Company's management and
to conduct such investigations and inquiries as the Purchaser deems
appropriate for purposes of investment in the Shares pursuant to this
Agreement. The Purchaser has read and understands the SEC Reports and the
prospectus contained in the Registration Statement, including without
limitation the "Risk Factors" section thereof, and acknowledges that the
disclosures included therein constitute risks to the Purchaser in connection
with the purchase of the Shares. The Purchaser has also read and understands
the section of the prospectus contained in the Registration Statement
entitled "Description of the Company's Securities" and understands the
Company's capital structure and the substantial dilution to the Purchaser's
interest in the Company that can occur upon the exercise of warrants and
stock options. Without limiting the foregoing, the Purchaser acknowledges
its understanding that (A) the Company will need substantial additional
capital, which may be raised through sale of additional securities, thereby
further diluting the Purchaser's interest in the Company, (B) the Company's
drug candidate for the treatment of lupus erythematosus, LJP 394, may not
prove effective in producing a sustained reduction of antibodies to
double-stranded DNA and may not provide a meaningful clinical benefit, and
(C) the Company's other drug candidates are at earlier stages of development
and involve comparable risks.
(iii) The Purchaser understands that (A) the Shares are
neither registered under the Securities Act nor under the securities laws of
any state or foreign country, (B) the certificates evidencing the Shares will
bear a legend to the effect set forth in SECTION 5(b) (relating to
restrictions on transfer), and (C) appropriate stop transfer instructions
against the Shares will be placed with the Company's transfer agent.
(iv) The Purchaser has expertise in evaluating and investing in
companies like the Company and is able to assess the relative merits and
risks of an investment in the Company and to sustain a total loss on such
investment.
(v) The Purchaser understands that, in addition to the
contractual restrictions on transfer set forth in this Agreement, the Shares
cannot be offered, sold or transferred unless the Shares are registered under
the Securities Act or an exemption from the registration requirements of the
Securities Act is available, or such registration requirements
13
are inapplicable, as reflected in an opinion of counsel to the Purchaser in
form and substance reasonably satisfactory to the Company, in which case the
Company agrees to cooperate reasonably with the Purchaser, including but not
limited to, executing, acknowledging or delivering any documents which in the
opinion of the Purchaser or its counsel may be reasonably necessary,
appropriate or desirable in order to render such an opinion.
(vi) The Purchaser is purchasing the Shares for its own
account, for investment, not as a nominee or agent, and not with a view to
their sale or distribution.
5. COVENANTS.
(a) SEC REPORTS AND OTHER INFORMATION. As soon as available (but
in any event within five days after filing with the SEC or release), the
Company shall deliver to the Purchaser copies of (i) all registration
statements and all special or periodic reports relating to the Company that
the Company files with the SEC or with any regional or national securities
exchange or quotation system and (ii) all press releases.
(b) RESTRICTIONS ON TRANSFER.
(i) During the Standstill Period, the Purchaser shall not
offer, sell or transfer any Shares or any interest therein except as follows
(provided that all such sales or transfers made during the Standstill Period,
other than pursuant to SECTION 5(b)(i)(B) or (D), shall be subject to the
Company's right of first refusal set forth in SECTION 5(c)):
(A) to any person, entity or group approved in writing by
the Company;
(B) to any Affiliate of the Purchaser, if such Affiliate
agrees in writing to hold such Shares subject to all the provisions of this
Agreement and agrees to transfer such Shares to the Purchaser if it ceases to
be an Affiliate of the Purchaser;
(C) in response to an offer to purchase or exchange for
cash or other consideration any Voting Stock that is made by or on behalf of
the Company or by another person or group not opposed by the Board within the
time the Board is required, pursuant to applicable rules under the Exchange
Act, to advise the Company's stockholders of the Board's position on such
offer;
(D) pursuant to a BONA FIDE pledge of such Shares to an
institutional lender to secure a loan, guaranty or other financial support,
provided that such lender agrees in writing to hold such Shares subject to
all provisions of this Agreement; or
(E) in the event of a merger or consolidation of the
Company in which the holders of Voting Stock prior to the merger or
consolidation cease to hold at least a majority of the Voting Stock of the
surviving entity, or pursuant to a plan of liquidation of the Company.
14
(ii) After the Standstill Period and before the fifth
anniversary of the date of this Agreement, the Purchaser shall not, directly
or indirectly, sell or transfer any Shares except as allowed during the
Standstill Period and as follows (provided that all such sales or transfers
shall be subject to the Company's right of first refusal set forth in SECTION
5(C)):
(A) pursuant to a BONA FIDE public offering registered
under the Securities Act, including an offering made through an underwriter
or broker that takes the Shares for its own account with a view to the public
distribution thereof, if the Purchaser takes and requires the underwriter or
broker to take reasonable precautions to insure that such offering will not
result in a sale of Beneficial Ownership of Voting Stock with aggregate
voting power of five percent (5%) or more of the Total Voting Power then in
effect to any single person or group;
(B) into the public market pursuant to SEC Rule 144 under
the Securities Act, if the Purchaser takes reasonable precautions to insure
that such offering will not result in a sale by it or any underwriter,
broker, or other person or entity acting on its behalf of Beneficial
Ownership of Voting Stock with aggregate voting power of five percent (5%) or
more of the Total Voting Power then in effect to any single person or group;
or
(C) in transactions not otherwise described herein if
such transactions do not result, to Purchaser's knowledge, in any single
person or group having Beneficial Ownership of Voting Stock with aggregate
voting power of five percent (5%) or more of the Total Voting Power then in
effect or increasing its Beneficial Ownership of Voting Stock by such amount.
(iii) No transfer by the Purchaser of any Shares that is
otherwise permissible hereunder shall be made unless (A) the Shares are
registered under the Securities Act, (B) such transfer complies with the
provisions of Rule 144 under the Securities Act or (C) an exemption from the
registration requirements of the Securities Act is available and the
Purchaser has provided to the Company (at the Purchaser's expense) an opinion
of counsel to the Purchaser in form and substance reasonably satisfactory to
the Company that such an exemption is available. The certificate or
certificates evidencing the Shares will bear the restrictive legend set forth
below. The legend imprinted on the certificates shall be removed and the
Company shall issue a new certificate without such legend to the holder of
such security if such security is registered under the Securities Act, the
conditions for a permissible sale or transfer under Rule 144 have been
complied with or in the opinion of counsel to the Purchaser reasonably
satisfactory to the Company such legend is no longer required under the
Securities Act.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO CERTAIN CONDITIONS SPECIFIED IN THE STOCK PURCHASE AGREEMENT, DATED
AS OF DECEMBER 23, 1996, BETWEEN THE ISSUER (THE
15
"COMPANY") AND XXXXXX LABORATORIES, AND THE COMPANY RESERVES THE RIGHT
TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE
BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH CONDITIONS
SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST AND WITHOUT CHARGE.
(iv) The Company may give stop transfer and other instructions
to its transfer agent to effect the provisions of this SECTION 5(b).
(c) COMPANY RIGHT OF FIRST REFUSAL. If the Purchaser proposes to
transfer any Shares at any time and from time to time before the fifth
anniversary of the date of this Agreement, the Purchaser shall first give the
Company written notice of its intention, describing the price and general
terms of the proposed transfer and the identity of the proposed transferee,
if known. The Company or its designee shall have fifteen (15) Business Days
from the date of receipt of any such notice to agree to purchase all of the
Shares proposed to be transferred for the price per Share and upon the
general terms specified in the notice by giving written notice to the
Purchaser. If the Purchaser proposes any transfer of Shares for
consideration other than cash, the Company may exercise its right of first
refusal and purchase such Shares for cash in an amount equal to the fair
market value of the proposed non-cash consideration. If the Company does not
exercise its right of first refusal, the Purchaser may transfer any Shares
not purchased by the Company at the price and upon the general terms
described in the notice provided to the Company, provided that if the
Purchaser has not transferred such Shares within 120 days after the Company
received notice of the Purchaser's intention to transfer Shares, or entered
into a binding agreement within such 120-day period to transfer such Shares
and transferred such Shares within 120 days of entering into such agreement,
the Purchaser shall not thereafter transfer any Shares without first offering
such Shares to the Company in the manner provided above.
(d) PROXY SOLICITATIONS. Prior to the end of the Standstill
Period, neither the Purchaser nor its Affiliates shall, directly or
indirectly, (i) solicit, initiate or participate in any "solicitation" of
"proxies" or become a "participant" in any "election contest" (as such terms
are defined or used in Regulation 14A under the Exchange Act); call, or in
any way participate in a call for, any special meeting of stockholders of the
Company (or take any action with respect to acting by written consent of the
Company's stockholders); request, or take any action to obtain or retain any
list of holders of any securities of the Company; or initiate or propose any
stockholder proposal or participate in the making of, or solicit stockholders
for the approval of, one or more stockholder proposals; (ii) deposit any
Voting Stock in a voting trust or subject them to any voting agreement or
arrangements; (iii) form, join or in any way participate in a "group" (within
the meaning of Section 13(d)(3) of Exchange Act) with respect to any Voting
Stock (or any securities the ownership of which would make the owner thereof
a Beneficial Owner of Voting Stock); (iv) otherwise act to control or
influence the Company or its management, Board, policies or affairs in a
manner not specifically contemplated by this Agreement or the License
Agreement, including, without limitation, (A) soliciting or
16
proposing (other than on a non-public basis directly to the Company) to
effect or negotiate any form of business combination, restructuring,
recapitalization or other extraordinary transaction involving, or any change
in control of, the Company, its Affiliates or any of their respective
securities or assets, or (B) seeking Board representation or the removal of
any of the Company's directors or a change in the composition or size of the
Board; (v) disclose (other than non-public disclosure to the Company) any
intent, purpose, plan or proposal with respect to this Agreement, the Company
or its Affiliates or the Board, management, policies, affairs, securities or
assets of the Company or its Affiliates that is inconsistent with this
Agreement, including any intent, purpose, plan or proposal that is
conditioned on, or would require the Company or any of its Affiliates to make
any public disclosure relating to, any such intent, purpose, plan, proposal
or condition; or (vi) assist, advise, encourage or act in concert with any
person with respect to, or seek to do, any of the foregoing. Notwithstanding
anything in the foregoing to the contrary, however, nothing in this SECTION
5(d) shall prohibit the Purchaser from engaging in any of the activities set
forth in SECTION 5(d) in response and opposition to activities of the kind
described in SECTION 5(d) initiated by any third party, provided that
Purchaser shall not engage in any of the activities described in this SECTION
5(d) beyond the time such third party ceases such activities.
(e) COVENANTS TO BIND PURCHASERS. Until the fifth anniversary of
the date of this Agreement, the Purchaser shall cause any acquiror or
acquirors (including without limitation Affiliates) to whom or which the
Purchaser transfers any Shares in any transaction or series of related
transactions not made through The Nasdaq National Market (or such stock
exchange as may be the primary exchange upon which the Company's common stock
may trade from time to time) of any interest in Voting Stock with aggregate
voting power of three percent (3%) or more of the Total Voting Power then in
effect to agree to be bound by subsections (b), (c), and (d) of this SECTION
5, and the legend required by SECTION 5(b)(iii) shall not be removed from
such shares.
(f) NASDAQ LISTING. The Company shall use its best efforts to keep
effective the registration of the Common Stock under the Exchange Act with
the SEC and maintain the listing or inclusion for quotation on the Nasdaq
Stock Market of the Common Stock, and shall use its best efforts to file
timely such information, documents and reports as the SEC or such other
Governmental Authority may require or prescribe that the Company file in
connection therewith. The Company will, at the request of the Purchaser or
any of its Affiliates, advise in writing as to whether all reports required
to be filed under the Exchange Act have been timely filed, and will file any
other information which may be reasonably required in order to comply with
Rule 144 under the Securities Act, or any other comparable rule or Securities
Act exemption, as then in effect.
(g) PUBLIC ANNOUNCEMENTS. Neither the Purchaser nor the Company
shall issue any press release or other public statement with respect to the
transactions contemplated by this Agreement without the prior written consent
of the other, except as may be required by applicable law or by obligations
pursuant to any listing agreement with a securities exchange or quotation
system upon which the Purchaser's or the Company's securities are traded,
provided that if either party believes that any press release or other public
statement is so
17
required, such party shall promptly notify and consult with the other party
with respect thereto. Without limitation of the foregoing, the Company shall
not publicly announce any exercise of the Additional Investment Right until
after the Additional Closing of the purchase and sale of the Additional
Shares for which the Additional Investment Right was exercised.
(h) PURCHASER RIGHT OF FIRST REFUSAL. If the Company proposes to
issue or sell, at any time and from time to time before the fifth anniversary
of the date of this Agreement, to any Designated Investor (as defined below),
shares of Common Stock with aggregate voting power of 5% or more of the Total
Voting Power (giving effect to such issuance or sale to such Designated
Investor), the Company shall first give the Purchaser written notice of its
intention, describing the price per share and general terms of the proposed
transfer and the identity of the proposed transferee. The Purchaser or its
designee shall have 15 Business Days from the date of receipt of any such
notice to agree to purchase all of the shares of Common Stock proposed to be
issued or sold for the price per share and upon the general terms specified
in the notice by giving written notice to the Company. If the Company
proposes any issuance or sale of shares of Common Stock for consideration
other than cash, the Purchaser may exercise its right of first refusal and
purchase such shares for cash in an amount equal to the fair market value of
the proposed non-cash consideration. If the Purchaser does not exercise its
right of first refusal, the Company may issue and sell the shares of Common
Stock not purchased by the Purchaser at the price and upon the general terms
described in the notice provided to the Purchaser, provided that if the
Company has not transferred such shares within 120 days after the Purchaser
received notice of the Company's intention to sell shares, or entered into a
binding agreement within such 120-day period to issue and sell such shares
and issued and sold such shares within 120 days after entering into such
agreement, the Company shall not thereafter issue and sell any shares without
first offering such shares to the Purchaser in the manner provided above.
For purposes hereof, "DESIGNATED INVESTOR" means a pharmaceutical
manufacturing or distribution company with operations in the field of care
covering products specifically used to treat end-stage renal dialysis
patients and patients with impaired renal function, such as polycystic
disease, anemia, acute renal failure or glomerulonephritis, but not including
renal transplantation ("RENAL CARE"). Notwithstanding the foregoing,
however, the Purchaser's rights under this SECTION 5(h) shall not apply in
the case of a sale of stock by the Company as part of a collaborative
relationship involving research, development, manufacturing or marketing
activities (a "PROPOSED COLLABORATION") unless the primary focus of the
Proposed Collaboration is Renal Care, in which case the Purchaser's rights
under this SECTION 5(h) will apply only if the Purchaser, through exercise of
its right of first negotiation under Section 2.5 or Section 2.6 of the
License Agreement, enters into a collaborative agreement with the Company
with respect to the Proposed Collaboration, in which case the Purchaser shall
have the right pursuant to this SECTION 5(h) to purchase any stock proposed
to be sold as part of that Proposed Collaboration.
18
6. REGISTRATION RIGHTS.
(a) DEMAND REGISTRATION RIGHTS.
(i) DEMAND; OBLIGATIONS OF THE COMPANY. At any time and from
time to time after the third anniversary of the date of this Agreement, the
Purchaser may request registration of all or any part of the Registrable
Securities (a "DEMAND REGISTRATION"), and the Company will use its reasonable
best efforts to effect the registration of such Registrable Securities under
the Securities Act (including, if so requested by the Purchaser, Rule 415
thereunder), all in accordance with the following provisions. "REGISTRABLE
SECURITIES" shall mean those shares of the Company's Common Stock acquired or
acquirable by the Purchaser pursuant to this Agreement, any additional shares
of Common Stock or other securities which subsequently may be issued with
respect to such stock as a result of a stock split or dividend or any sale,
transfer, assignment or other transaction involving such Common Stock or
securities and any securities into which such Common Stock or securities may
thereafter be exchanged or converted as a result of merger, consolidation,
recapitalization or otherwise.
(ii) COMPANY'S ABILITY TO POSTPONE. The Company shall have the
ability to postpone the filing of a registration statement under this SECTION
6(a) for a reasonable period of time (not exceeding 60 days) if the Company
furnishes the Purchaser with a certificate signed by the President of the
Company stating that the Company's board of directors has determined in good
faith that effecting the registration at such time would adversely affect a
material financing, acquisition, disposition of assets of stock, merger or
other comparable transaction or would require the Company to make public
disclosure of information the public disclosure of which could have a
Material Adverse Effect.
(iii) NUMBER OF DEMAND REGISTRATIONS. If no Additional
Shares have been issued, the Purchaser shall be entitled to an aggregate of
two Demand Registrations. If any Additional Shares have been issued, the
Purchaser shall be entitled to an aggregate of three Demand Registrations.
(b) DEMAND REGISTRATION PROCEDURES. If and whenever the Company is
required under SECTION 6(a) to use its reasonable best efforts to effect the
registration of any of the Registrable Securities under the Securities Act,
the Company will (except as otherwise provided in this Agreement), as
expeditiously as practicable:
(i) prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its reasonable best
efforts to cause such registration statement to become effective and remain
effective for the lesser of nine months or as long as shall be necessary to
complete the distribution of the Registrable Securities so registered;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for the lesser of nine months or as long
19
as shall be necessary to complete the distribution of the Registrable
Securities so registered and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all Registrable
Securities covered by such registration statement whenever the Purchaser
shall desire to sell or otherwise dispose of the same;
(iii) furnish to the Purchaser such numbers of copies of a
prospectus, including a preliminary prospectus and any amendment or
supplement to any prospectus, in conformity with the requirements of the
Securities Act, and such other documents, as the Purchaser may reasonably
request in order to facilitate the public sale or other disposition of the
Registrable Securities owned by the Purchaser;
(iv) use its reasonable best efforts to register and qualify
the Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as the Purchaser
shall reasonably request, and do any and all other acts and things reasonably
requested by the Purchaser to assist such holder to consummate the public
sale or other disposition in such jurisdictions of the Registrable
Securities, except that the Company shall not for any such purpose be
required to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified or to file therein any general
consent to service of process;
(v) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, beginning with the first
fiscal quarter beginning after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of SECTION
11(a) of the Securities Act and Rule 158 thereunder with respect to the offer
and sale of the Registrable Securities;
(vi) use its reasonable best efforts to list such Registrable
Securities on any securities exchange (or obtain approval for trading on the
Nasdaq Stock Market) on which any securities of the same class of the Company
are then listed (or approved for listing), if the listing (or approval for
listing) of such Registrable Securities is then permitted under the rules of
such exchange (or the Nasdaq Stock Market);
(vii) if so requested by the Purchaser in connection with
an underwritten offering, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the managing
underwriter or underwriters, including, without limitation, to enter into
customary representations, warranties, covenants and indemnification and
contribution provisions and deliver an opinion of counsel to the Company and
a "comfort letter" from the independent public accountants to the Company in
the usual and customary form respecting such underwritten offering;
(viii) notify the Purchaser promptly (i) when a prospectus
or any prospectus supplement or post-effective amendment with respect to the
registration of such Registrable Securities, or any report incorporated by
reference therein, has been filed, (ii) of any request by the SEC for an
amendment or supplement to a registration statement or the
20
prospectus used in connection therewith with respect to the Registrable
Securities, or any report incorporated by reference therein, (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of a
registration statement relating to the Registrable Securities or the
initiation of any proceedings for that purpose, and (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of any of the Registrable Securities covered by such
registration statement for sale in any jurisdiction or the initiation or
threatening of any proceeding for that purpose;
(ix) in the event of the issuance of a stop order suspending
the effectiveness of a registration statement with respect to the Registrable
Securities or the suspension of the qualification of any of the Registrable
Securities covered by such registration statement for sale in any
jurisdiction, use its reasonable best efforts to obtain the withdrawal of
such stop order or the lifting of such suspension at the earliest possible
moment; and
(x) notify the Purchaser, at any time when a prospectus
relating to the Registrable Securities covered by such registration statement
is required to be delivered under the Securities Act, of the happening of any
event of which it has knowledge as a result of which the prospectus included
in such registration statement, as then in effect, contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing and promptly prepare and furnish
to the Purchaser (and the underwriters, if any) a reasonable number of copies
of a supplement to or an amendment of the prospectus as may be necessary so
that, as thereafter delivered to the purchasers of the Registrable
Securities, the prospectus shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of
the circumstances then existing.
(c) INCIDENTAL REGISTRATION RIGHTS.
(i) If the Company proposes to register any of its securities
under the Securities Act (other than on Form X-0, Xxxx X-0 or any successor
forms thereto), whether in connection with a primary or secondary offering (a
"PROPOSED OFFERING"), the Company shall give written notice to the Purchaser
at least 30 days prior to the initial filing of the registration statement
with the SEC pertaining to such Proposed Offering informing the Purchaser of
its intent to file such registration statement and of the Purchaser's rights
under this SECTION 6(c). Upon the written request of the Purchaser made
within 15 days after any such notice is received by the Purchaser (which
request shall specify the Registrable Securities intended to be disposed of
by the Purchaser), the Company shall use its reasonable best efforts to
effect the registration (an "INCIDENTAL REGISTRATION") under the Securities
Act of all the Registrable Securities which the Company has been so requested
to register by the Purchaser. The registration rights granted pursuant to
this SECTION 6(c) shall be in addition to the registration rights granted
pursuant to the other provisions of this Agreement. The Company further
agrees, if necessary, to supplement or amend the Incidental Registration
statement, if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Incidental Registration
statement or by the Securities Act or by any other
21
rules and regulations thereunder for registration. The Purchaser shall be
permitted to withdraw all of the Registrable Securities from an Incidental
Registration statement at any time prior to the effective date of the
Incidental Registration statement; PROVIDED, HOWEVER, that any withdrawal
shall be irrevocable with respect to such Incidental Registration statement.
Any request by the Purchaser to include Registrable Securities pursuant to
this SECTION 6(c) shall not be deemed a Demand Registration.
(ii) If the managing underwriter or underwriters of a Proposed
Offering delivers a written opinion to the Purchaser that the success of the
Proposed Offering would be materially and adversely affected by inclusion of
any or all of the Registrable Securities requested to be included, then the
amount of Registrable Securities included in the Incidental Registration may
in the Company's discretion be reduced to the extent (including reduction to
zero) recommended by such underwriter or underwriters. Notwithstanding the
foregoing, however, if securities are being offered for the account of
persons other than the Company or the Purchaser, then, with respect to the
Registrable Securities to be offered for the account of the Purchaser, the
proportion by which the amount of such Registrable Securities intended to be
offered by the Purchaser is reduced shall not exceed the proportion by which
the amount of such class of securities intended to be offered by such other
persons is reduced.
(iii) If at any time after giving written notice of its intent
to register any securities and prior to the effective date of the Incidental
Registration statement filed in connection with such registration, the
Company shall determine for any reason not to register any such securities or
to delay registration of all such securities, the Company may, at its
election, give written notice of such determination to the Purchaser and,
thereupon, (A) in the case of a determination not to register, the Company
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration, and (B) in the case of a determination to
delay registering, the Company shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other securities.
(d) EXPENSES.
(i) All expenses incurred in a Demand Registration or an
Incidental Registration (or any attempted Demand Registration or Incidental
Registration which does not become effective) of Registrable Securities under
this Agreement shall be paid by the Company, except as set forth in SECTION
6(d)(iii).
(ii) The expenses to be paid in connection with a registration
under SECTIONS 6(a), 6(b) and 6(c) shall include all out-of-pocket expenses,
including, without limitation, printing and photocopying expenses, fees and
disbursements of counsel for the Company, accountants' fees and expenses,
including expenses of any special audits to which the Company shall agree or
which shall be necessary to comply with governmental requirements in
connection with any such registration, as applicable, all registration and
filing fees under federal and state securities laws, fees and expenses
(including fees and disbursements of counsel for the Company) of complying
with the securities or blue sky laws
22
of any jurisdictions and listing or qualification fees or other expenses
(including fees and disbursements of counsel for the Company) of complying
with the listing, qualification or other rules of any national securities
exchange or any other self regulatory organization.
(iii) Notwithstanding the foregoing provisions of this SECTION
6(d), the Purchaser shall pay fees and disbursements of its own counsel and
all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of securities by the Purchaser pursuant
to a Demand Registration or an Incidental Registration.
(e) INDEMNIFICATION. If any Registrable Securities are included in
a registration statement pursuant to a request under this SECTION 6:
(i) INDEMNITY BY COMPANY. Without limitation of any other
indemnity provided to the Purchaser, to the extent permitted by law, the
Company shall indemnify and hold harmless the Purchaser, the officers and
directors of the Purchaser, each underwriter (as defined in the Securities
Act) for the Purchaser, and each person, if any, who controls (within the
meaning of the Securities Act or Exchange Act) the Purchaser or any such
underwriter, against any losses, claims, damages, liabilities and expenses
(joint or several) to which they may become subject under the Securities Act,
the Exchange Act or other federal or state law, insofar as such losses,
claims, damages, liabilities and expenses (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively, a "Violation"): (A) any untrue statement or
alleged untrue statement of a material fact contained in such registration
statements (including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto); (B) the omission
or alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; or (C) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state blue sky or securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state blue sky
or securities law, and the company shall reimburse the Purchaser, each
officer or director of the Purchaser, each such underwriter for the
Purchaser, and each person, if any, who controls (within the meaning of the
Securities Act or Exchange Act) the Purchaser or any such underwriter for any
expenses incurred by them (including reasonable fees and disbursements of
counsel) in connection with investigating or defending any such loss, claim,
damage, liability, expense or action; PROVIDED, HOWEVER, that the Company
shall not be liable to the Purchaser, the officers or directors of the
Purchaser, any such underwriter for the Purchaser, or any person who controls
(within the meaning of the Securities Act or Exchange Act) the Purchaser or
any such underwriter, in any such case for any such loss, claim, damage,
liability, expense or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration
by the Purchaser, any officer or director of the Purchaser, any underwriter
for the Purchaser or any controlling person of the Purchaser or any such
underwriter.
23
(ii) INDEMNITY BY THE PURCHASER. In connection with any
registration statement, as applicable, in which the Purchaser is
participating, the Purchaser shall furnish to the Company in writing such
information as the Company reasonably requests for use in connection with any
such registration statement or prospectus, and, to the extent permitted by
law, shall indemnify the Company, its directors and officers and each person,
if any, who controls the Company (within the meaning of the Securities Act or
Exchange Act) against any losses, claims, damages, liabilities and expenses
resulting from any Violation, but only to the extent that such Violation is
contained in or results from any information so furnished in writing by the
Purchaser.
(iii) NOTICE; RIGHT TO DEFEND. Promptly after receipt by an
indemnified party under this SECTION 6(e) of notice of the commencement of
any action (including any governmental action), such indemnified party shall,
if a claim in respect thereof is to be made against any indemnifying party
under this SECTION 6(e), deliver to the indemnifying party a written notice
of the commencement thereof and the indemnifying party shall have the right
to participate in, and, if the indemnifying party agrees in writing that it
will be responsible for any costs, expenses, judgments, damages and losses
incurred by the indemnified party with respect to such claim, jointly with
any other indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, that an
indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if the indemnified
party reasonably believes that representation of such indemnified party by
the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action shall relieve such indemnifying party
of any liability to the indemnified party under this SECTION 6(e) only if and
to the extent that such failure is prejudicial to its ability to defend such
action, and the omission so to deliver written notice to the indemnifying
party shall not relieve it of any liability that it may have to any
indemnified party other than under this SECTION 6(e).
(iv) CONTRIBUTION. If the indemnification provided for in this
SECTION 6(e) is held by a court of competent jurisdiction to be unavailable
to an indemnified party with respect to any loss, liability, claim, damage or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of
the indemnified party on the other hand in connection with the statements or
omissions or Violations which resulted in such loss, liability, claim, damage
or expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
24
Notwithstanding the foregoing, the amount the Purchaser shall be obligated to
contribute pursuant to this SECTION 6(e)(iv) shall be limited to an amount
equal to the proceeds to the Purchaser of the Common Stock sold pursuant to
the registration statement, which gives rise to such obligation to contribute
(less the aggregate amount of any damages which the Purchaser has otherwise
been required to pay in respect of such loss, claim, damage, liability or
action or any substantially similar loss, claim, damage, liability or action
arising from the sale of such Common Stock).
(v) SURVIVAL OF INDEMNITY. The indemnification provided by
this SECTION 6(e) shall be a continuing right to indemnification and shall
survive the registration and sale of any securities by any person entitled to
indemnification hereunder and the expiration or termination of this Agreement.
(f) RULE 144. In order to permit the Purchaser to sell the Common
Stock it holds, if it so desires, from time to time pursuant to Rule 144
promulgated by the SEC or any successor to such rule or any other rule or
regulation of the SEC that may at any time permit the Purchaser to sell its
Common Stock to the public without registration (the "RESALE RULES"), the
Company shall:
(i) comply with all rules and regulations of the SEC
applicable in connection with use of the Resale Rules;
(ii) make and keep adequate and current public information
available (within the meaning of the Resale Rules) at all times;
(iii) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act;
(iv) furnish to the Purchaser so long as it owns any Common
Stock, forthwith upon request, (A) a written statement by the Company that it
has complied with the reporting requirements of the Resale Rules, the
Securities Act and the Exchange Act, (B) a copy of the most recent annual or
quarterly report of the Company and any other reports and documents so filed
by the Company, and (C) such other information as may be reasonably requested
in availing the Purchaser of any rule or regulation of the SEC which permits
the selling of any such Common Stock without registration; and
(v) take any action (including cooperating with the Purchaser
to cause the transfer agent to remove any restrictive legend on certificates
evidencing shares of Common Stock) as shall be reasonably requested by the
Purchaser or which shall otherwise facilitate the sale of Common Stock from
time to time by the Purchaser pursuant to the Resale Rules.
25
7. TERMINATION.
(a) TERMINATION EVENTS. The Purchaser or the Company may terminate
this Agreement without liability:
(i) to the extent that performance thereof is prohibited,
enjoined or otherwise materially restrained by any final, non-appealable
judgment, ruling, order or decree of any Governmental Authority, provided
that the party seeking to terminate its obligations hereunder pursuant to
this SECTION 7(a)(i) shall have used its best efforts to avoid and remove
such prohibition, injunction, or restraint; or
(ii) if the terminating party shall not have committed a
material uncured breach of any of its representations, warranties or
covenants hereunder and the other party shall have breached any of its
representations, warranties or covenants hereunder in any material respect,
which breach in the case of a covenant is not cured within thirty (30) days
after the breaching party has received notice of the terminating party's
intent to terminate this Agreement pursuant to this SECTION 7(a)(ii).
(b) EFFECT OF TERMINATION. In the event of termination of this
Agreement pursuant to SECTION 7(a), neither the Purchaser nor the Company
shall have any obligation to perform hereunder from and after the date of
such termination, except that (i) SECTIONS 8(a) and 8(b) shall survive such
termination and continue in effect, (ii) SECTION 5 shall survive such
termination and continue in effect if the termination is for any reason other
than a material breach by the Company, and (iii) no termination hereof shall
relieve the Purchaser or the Company from liability for any breach of this
Agreement.
8. MISCELLANEOUS PROVISIONS.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Regardless of any
party's investigations prior to the date hereof, the representations and
warranties contained herein shall survive the execution and delivery hereof
and the purchase and sale of the Shares and shall terminate and expire on the
first anniversary of the date of this Agreement, unless on or before such
first anniversary, either party has notified the other party in writing of a
claim with respect to such representation or warranty in which case such
representation or warranty shall survive until termination or resolution of
such claim, and provided that notwithstanding the foregoing, the
representations and warranties of the Purchaser set forth in SECTION 4(g)
shall be deemed to be made by the Purchaser at the time of and in connection
with each acquisition of Shares hereunder.
(b) GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall
be governed by and construed under and enforced in accordance with the laws
of the State of California without regard to its conflicts-of-laws
principles.
(c) EXPENSES. Except as set forth in SECTION 6(d), each of the
parties shall pay its own expenses incurred in connection with the
negotiation and preparation of this Agreement and the License Agreement, the
performance of its covenants herein, and the effectuation of
26
the transactions contemplated hereby including, without limitation, all fees
and disbursements of its respective legal counsel, advisors, and accountants.
Each party to this Agreement shall indemnify and hold harmless the other
against any claim for fees or commissions of brokers, finders, agents, or
bankers retained or purportedly retained by the indemnifying party in
connection with the transactions contemplated by this Agreement and the
License Agreement.
(d) NOTICES. In case of any event or circumstance giving rise to
an obligation of the Purchaser or the Company to provide notice hereunder,
such notice shall be delivered within the time specifically set forth herein
or therein, as the case may be, or, if no such time is specified, then as
promptly as practicable after becoming aware of such event or circumstance.
Any notice required or permitted to be given under this Agreement shall be
written, and may be given by personal delivery, by cable, telecopy, telex or
telegram (with a confirmation copy mailed as follows), by a reputable
commercial delivery service, or by registered or certified mail, first-class
postage prepaid, return receipt requested. Notice shall be deemed given upon
actual receipt. Mailed notices shall be addressed as follows, but each party
may change address by written notice in accordance with this paragraph.
To the Company: La Jolla Pharmaceutical Company
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0 Xxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
To the Purchaser: Xxxxxx Laboratories
Hospital Products Division
Attn: Xxxxxxxxx
Xxxx. 0000, Xxxx. XX00
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
and
27
Xxxxxx Laboratories
Xxxxxx International
Attn: President
Dept. 06WP, Bldg. AP30
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx Laboratories
General Xxxxxxx
Xxxx. 000, Xxxx XX0X
000 Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
(e) WAIVER. Each party hereto may in its sole discretion (i)
extend the time for the performance of any of the obligations or other acts
of the other party hereunder, (ii) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document, certificate or writing delivered pursuant hereto or thereto or
(iii) waive compliance by the other party with any of the agreements
contained herein. No term or provision hereof shall be deemed waived and no
breach hereof or thereof excused unless such waiver or consent shall be in
writing and signed by the party claimed to have waived or consented. No
waiver hereunder shall apply or be construed to apply beyond its expressly
stated terms. No failure to exercise and no delay in exercising any right,
remedy, power or privilege hereunder shall operate as a waiver thereof, and
no single or partial exercise of any right, remedy, power or privilege
hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. No failure to
insist upon strict performance of any term or provision of this Agreement, or
to exercise any right hereunder, shall be construed as a waiver or as a
relinquishment of such term, provision, or right.
(f) ENTIRE AGREEMENT. This Agreement and the License Agreement
constitute the entire agreement between the Purchaser and the Company with
respect to the subject matter hereof and thereof and the transactions
contemplated hereby and thereby and supersede all prior or contemporaneous,
written or oral agreements or understandings with respect thereto. The
parties acknowledge that their agreements hereunder were not procured through
representations or agreements not set forth herein or therein.
(g) AMENDMENT. This Agreement may be amended only to the extent
permissible under applicable law and only by a written instrument executed
and delivered by a duly authorized officer of each of the parties hereto.
(h) SEVERABILITY. The provisions set forth in this Agreement are
severable. If any provision of this Agreement is held invalid or
unenforceable in any jurisdiction, the
28
remainder of this Agreement and the application of such provision to other
persons or circumstances, shall not be affected thereby, and shall remain
valid and enforceable in such jurisdiction, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(i) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their successors and
assigns, provided that neither party may assign this Agreement without the
written consent of the other party; PROVIDED, HOWEVER, that (i) either party
hereto may assign this Agreement to any person or entity with or into which
such party may merge or consolidate or to whom all or substantially all of
its assets or businesses may be sold and (ii) the Purchaser may assign its
rights under this Agreement to any subsidiary of the Purchaser if the
Purchaser remains responsible for the subsidiary's performance and liable for
its breaches of this Agreement.
(j) FAIR CONSTRUCTION. This Agreement shall be deemed the joint
work product of the parties hereto without regard to the identity of the
draftsperson, and any rule of construction that a document shall be
interpreted or construed against the drafting party shall not be applicable.
(k) HEADINGS; REFERENCES. Headings used in this Agreement are
inserted as a matter of convenience and for reference, do not constitute a
part of this Agreement for any other purpose, and shall not affect the
interpretation or enforcement hereof. References herein to Sections and
Schedules are, unless otherwise designated, references to the specified
Section or Schedule hereof or hereto.
(l) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
LA JOLLA PHARMACEUTICAL COMPANY XXXXXX LABORATORIES
By: By:
---------------------------- ---------------------------
Name: Xxxxxx X. Xxxxx Name:
-------------------------
Title: President & Chief Executive Officer Title:
------------------------
29
