EXECUTION COPY
STOCKHOLDERS AGREEMENT
dated as of December 2, 2005
by and among
LIGAND PHARMACEUTICALS INCORPORATED,
THIRD POINT LLC,
THIRD POINT OFFSHORE FUND, LTD.,
THIRD POINT PARTNERS LP,
THIRD POINT ULTRA LTD.,
LYXOR/THIRD POINT FUND LTD., and
THIRD POINT PARTNERS QUALIFIED LP
This STOCKHOLDERS AGREEMENT dated as of December 2, 2005 (this
"Stockholders Agreement") is made and entered into by and among Ligand
Pharmaceuticals Incorporated, a Delaware corporation (the "Company"), and Third
Point LLC, a Delaware limited liability company ("Third Point"), and Third Point
Offshore Fund, Ltd., a Cayman Islands limited liability exempted company, Third
Point Partners LP, a Delaware limited partnership, Third Point Ultra Ltd., a
British Virgin Islands limited liability company, Lyxor/Third Point Fund Ltd., a
Jersey public company with limited liability, and Third Point Partners Qualified
LP, a Delaware limited partnership (each a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS, each Stockholder is the beneficial owner of the number of shares
of common stock, par value $.001 per share, of the Company (the "Common Stock")
listed next to such Stockholder's name on Schedule I hereto (the "Third Point
Shares"); and
WHEREAS, the Stockholders and the Company wish to provide for
representation on the Board of Directors of the Company (the "Board of
Directors") for the Stockholders and certain agreements as to the Common Stock
beneficially owned by the Stockholders, or otherwise as to which a Stockholder
has voting power, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Stockholders Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions.
(a) Except as otherwise specifically indicated, the following terms have
the following meanings for all purposes of this Stockholders Agreement:
"Affiliate" has the meaning assigned thereto in Rule 12b-2 promulgated
under the Exchange Act.
"beneficially owns" (or comparable variations thereof) has the meaning set
forth in Rule 13d-3 promulgated under the Exchange Act.
"Bylaws" means the Amended and Restated Bylaws of the Company, as the same
may be amended and restated from time to time.
"Certificate of Incorporation" means the Amended and Restated Certificate
of Incorporation of the Company, as the same may be amended and restated from
time to time.
"Commission" means the Securities and Exchange Commission.
"Director Termination Date" means the earliest of: (i) the first date on
which (x) any member of the Restricted Group engages in any of the activities
prohibited by Article IV if such violation is not wholly cured within three (3)
business days following written notice thereof by the Company, (y) any member of
the Restricted Group engages in a Schedule 13D Transaction, or (z) the filing of
an amendment to the Schedule 13D previously filed by certain of the Stockholders
with the Commission indicating that any member of the Restricted Group has a
plan or proposal to engage in, or that it has engaged in, a Schedule 13D
Transaction (other than an amendment filed following the execution and delivery
of this Stockholders Agreement announcing such execution and delivery or
subsequent filings necessitated by the terms of this Agreement and actions by
the parties hereunder); (ii) the first date on which the members of the
Restricted Group sell, transfer or otherwise dispose of any or all of the Voting
Securities such that the Restricted Group's aggregate beneficial ownership of
Voting Securities is reduced; (iii) the first date on which there shall be no
Third Point Designees then in office as members of the Board of Directors and
the Stockholders shall not have named a successor to any of the Third Point
Designees in accordance with Section 2.01(c) hereof; or (iv) the Standstill
Termination Date.
"Equity Securities" means Voting Securities, Convertible Securities and
Rights to Purchase Voting Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision, or any stock exchange or market in which
the Common Stock is listed for trading or traded.
"Independent Director" means any member of the Board of Directors who is
not excluded from qualification as an independent director (for all purposes
other than service on the Company's audit or compensation committees) by the
enumerated per se exclusions from such qualification contained in the listing
requirements of the Nasdaq National Market for listed companies not utilizing
the "controlled company" exception, including a subjective determination by the
Board of Directors.
"Person" means any individual, corporation, limited liability company,
partnership, trust, other entity or group (within the meaning of Section
13(d)(3) of the Exchange Act).
"Representatives" of any Person means such Person's directors, officers,
employees, legal, investment banking and financial advisors, accountants and any
other agents and representatives of such entity.
"Restricted Group" means, collectively, (i) each Stockholder, (ii) any and
all Affiliates of any Stockholder and any Person as to which voting power over
Voting Securities,
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directly or indirectly, is controlled or shared by a Stockholder, (iii) the then
current officers, directors or managing members of any Person described in
clauses (i) or (ii) above, (iv) with respect to any Person described in clauses
(i) or (ii) above who is an individual, (a) any and all immediate family members
of such Person, (b) the heirs, executors, personal representatives and
administrators of any of the foregoing Persons, (c) any and all trusts
established for the benefit of any of the foregoing Persons and (d) any and all
charitable foundations the investment decisions of which are controlled by any
of the foregoing Persons, and (v) the other members of any and all groups
(within the meaning of Section 13(d)(3) of the Exchange Act) of which any
Stockholder or any Person described in clauses (i) or (ii) above is a member.
"Rights Plan" means the amended and restated preferred shares rights
agreement dated as of September 13, 1996, as amended through March 22, 2004,
between the Company and Mellon Investor Services LLC, as rights agent, as the
same may be further amended from time to time, and "Rights" has the meaning
given such term in the Rights Agreement.
"Schedule 13D Transaction" means any action or transaction described in any
of paragraphs (a) through (j) of Item 4 of Schedule 13D promulgated by the
Commission. "Schedule 13D Transaction" shall not include any transaction
described in paragraph (a) of Item 4 of Schedule 13D if, after taking into
account all such contemporaneous transactions, the aggregate beneficial
ownership of the Stockholders shall not have changed.
"Standstill Termination Date" has the meaning set forth in Section 4.01.
"Strategic Process" means that certain evaluation of strategic alternatives
by the Company publicly announced pursuant to a press release by the Company on
November 18, 2005.
"Third Point Designee(s)" means Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx and
Xxxxxxxx Xxxxxxx, M.D. and any other individuals subsequently designated from
time to time pursuant to Section 2.01 by the Stockholders; provided, however,
that no individual who is an officer, director, partner or stockholder of any
competitor of the Company or any of its subsidiaries (other than a stockholder
which owns less than 5% of the voting stock or power of a competitor which is a
publicly-traded company) shall serve as a Third Point Designee.
"Voting Securities" means the Common Stock and any other securities of the
Company of any kind or class having the power generally to vote for the election
of directors; "Convertible Securities" means securities of the Company which are
convertible or exchangeable (whether presently convertible or exchangeable or
not) into Voting Securities; "Rights to Purchase Voting Securities" means
options and rights issued by the Company (whether presently exercisable or not)
to purchase Voting Securities or Convertible Voting Securities (but not
including the Rights); and "Outstanding Voting Securities" means at any time the
then issued and outstanding Voting Securities (not including shares issuable
upon the conversion of any Convertible Securities or upon the exercise of any
Rights to Purchase Voting Securities).
(b) In addition, the following terms are defined in the Sections set forth
below:
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"Board of Directors" -- Preamble
"Common Stock" -- Preamble
"Company" -- Preamble
"Stockholder" and "Stockholders" -- Preamble
"Stockholders Agreement" -- Preamble
"Third Point Shares" -- Preamble
(c) Unless the context of this Stockholders Agreement otherwise requires,
(i) words of any gender include each other gender; (ii) words using the singular
or plural number also include the plural or singular number, respectively; (iii)
the terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Stockholders Agreement; (iv) the terms "Article" or "Section" refer
to the specified Article or Section of this Stockholders Agreement and (v) all
references to statutes, rules and regulations are to the enumerated statutes,
rules and regulations and any successor statute, rule or regulation. Whenever
this Stockholders Agreement refers to a number of days, such number shall refer
to calendar days unless business or trading days are specified.
ARTICLE II
BOARD OF DIRECTORS
2.01 Composition of Board of Directors.
(a) No later than December 8, 2005, the Board of Directors shall, pursuant
to the powers granted to it under the Bylaws, increase the size of the Board of
Directors by three and elect the initial Third Point Designees named in this
Stockholders Agreement to fill the new directorships so created on the Board of
Directors and to serve in such capacity from such date of election through the
Director Termination Date.
(b) Until and including the earlier of (i) the Director Termination Date
and (ii) an annual meeting of the Company to be held during 2007, the Board of
Directors shall, at each meeting of stockholders of the Company at which the
terms of the Third Point Designees are scheduled to expire, nominate the Third
Point Designees to stand for election as directors of the Company for a
succeeding term in accordance with the Company's procedures for nomination of
directors as provided for in its Bylaws, recommend such election and solicit
proxies in respect thereof and vote the shares of Common Stock represented by
all proxies granted by stockholders in connection with the solicitation of
proxies by the Board of Directors in connection with such meeting in favor of
the Third Point Designees, except for such proxies that specifically indicate a
vote to withhold authority with respect to the Third Point Designees.
(c) Until the Director Termination Date, the Board of Directors shall cause
any vacancy created on the Board of Directors by reason of the death,
resignation or removal of a then serving Third Point Designee to be filled
promptly by a successor Third Point Designee named by the Stockholders as
follows:
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(i) In the event of the death or disability of a Third Point Designee,
or following the termination of all employment of a Third Point Designee with
all of the Stockholders, the Stockholders shall be entitled to designate a
replacement for the vacancy left by the death or disability, or termination of
such full-time employment, of such Third Point Designee by written notice
delivered to the Company to serve on the Board of Directors in accordance with
Section 7.03 of this Agreement. Such subsequently designated Third Point
Designee shall be an individual of high personal integrity and ethics, relevant
expertise and professional experience and such other qualifications, as
determined by the nominating committee of the Board of Directors. Such
subsequent nomination shall be promptly reviewed by and subject to the approval
of the nominating committee and thereafter such replacement shall be promptly
elected to the Board of Directors, provided such approval of the nominating
committee and of the Board of Directors shall not be unreasonably withheld or
delayed.
(ii) Other than pursuant to Section 2.01(c)(i) above, and only
following June 2, 2006, the Stockholders shall only be entitled to replace one
of the initial Third Point Designees (or any substitute Third Point Designee
permitted under Section 2.01(c)(i) above). Such subsequently designated Third
Point Designee shall be an individual of high personal integrity and ethics,
relevant expertise and professional experience and such other qualifications, as
determined by the nominating committee of the Board of Directors. Such
subsequent nomination shall be promptly reviewed by and subject to the approval
of the nominating committee and thereafter such replacement shall be promptly
elected to the Board of Directors, provided such approval of the nominating
committee and of the Board of Directors shall not be unreasonably withheld or
delayed. In the event the Stockholders desire to replace one of the Third Point
Designees as permitted pursuant to this Section 2.01(c)(ii), the Stockholders
shall provide written notice of their desire to replace such Third Point
Designee in accordance with Section 7.03 of this Agreement.
(iii) The Stockholders shall provide the information requested
pursuant to Section 2.03 to the Company and the Board of Directors regarding any
substitute Third Point Designee permitted under this Section 2.01(c).
(d) While serving on the Board of Directors and any committee thereof, each
Third Point Designee shall be entitled to all the rights and privileges of the
other directors and committee members, including, without limitation, access to
the Company's outside advisors; provided that each Third Point Designee shall
not be entitled to participate in or observe, and shall upon the good faith
request of the Board of Directors or any such committee recuse himself or
herself from, any meeting or portion thereof at which the Board of Directors or
any such committee is evaluating and/or taking action with respect to (x) the
ownership of Voting Securities specifically by any member of the Restricted
Group, (y) the exercise of any of the Company's rights or enforcement of any of
the obligations of any member of the Restricted Group under this Stockholders
Agreement or (z) any transaction proposed by, or with, any member of the
Restricted Group. The Board of Directors or any such committee shall be entitled
to take such actions as it shall deem reasonably necessary or appropriate to
carry out the provisions of the preceding sentence.
(e) The Stockholders shall no longer be entitled to have the Third Point
Designees serve on the Board of Directors from and after the Director
Termination Date, at
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which time the Stockholders will cause the Third Point Designees immediately to
resign from the Board of Directors. In furtherance thereof, each Third Point
Designee shall provide, upon election or appointment to the Board of Directors,
an executed resignation effective upon a Director Termination Date.
2.02 Special Committee. In the event that the Board of Directors forms a
special committee of the Board of Directors to oversee, monitor or otherwise
facilitate the Strategic Process, the Board of Directors shall, in connection
with the establishment of such a special committee, cause one or more of the
Third Point Designees designated by Third Point to be a member of such special
committee, such that one Third Point Designee shall be appointed to serve on a
special committee consisting of an aggregate of three or four members of the
Board of Directors (counting the Third Point Designee) and two Third Point
Designees shall be appointed to serve on a special committee consisting of an
aggregate five or more members of the Board of Directors (counting the Third
Point Designees); provided that in no event shall the Third Point Designees
appointed to such special committee constitute a majority of any such special
committee; provided further that the Third Point Designees shall not be entitled
to be a member of any committee formed exclusively for the purpose of evaluating
and/or taking action with respect to (x) the ownership of Voting Securities
specifically by any member of the Restricted Group, (y) the exercise of any of
the Company's rights or enforcement of any of the obligations of any member of
the Restricted Group under this Stockholders Agreement or (z) any transaction
proposed by, or with, any member of the Restricted Group.
2.03 Information About Third Point Designees. Third Point shall promptly
provide to the Company, as the Company may from time to time reasonably request,
information regarding the Third Point Designees for purposes of determining
whether the Third Point Designees are Independent Directors or for inclusion in
any form, report, schedule, registration statement, definitive proxy statement
or other documents required to be filed by the Company with the Commission or
any other Governmental or Regulatory Authority.
2.04 Board and Company Policies. It shall be a precondition to the right of
the initial Third Point Designees, and their respective successors, to attend
any meeting of the Board of Directors or committee thereof that such individual
shall have agreed, in the same manner as each other member of the Board of
Directors, to abide by the written policies of the Board of Directors and the
committees thereof (including, without limitation, the Code of Business Conduct
and Ethics) and written policies of the Company applicable to members of the
Board of Directors (including, without limitation, the Xxxxxxx Xxxxxxx Policy).
ARTICLE III
VOTING OF SHARES
3.01 Voting of Shares by the Restricted Group. Until the Standstill
Termination Date, at each meeting of stockholders of the Company held for the
purpose of electing any member of the Board of Directors, the Stockholders shall
cause all Voting Securities beneficially owned by any member of the Restricted
Group to be present at such meeting for purposes of establishing a quorum and to
be voted (x) for the nominees recommended by the Board of Directors (provided
such nominees include the Third Point Designees), (y) on all other proposals
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of the Board of Directors and any proposals by other stockholders of the Company
not covered by clause (z) below, as such member of the Restricted Group
determines is appropriate, and (z) in accordance with the recommendation of the
Board of Directors on any proposals of any other stockholder of the Company who
is also proposing one or more nominees for election as director in opposition to
the nominees of the Board of Directors at any such meeting. No later than five
business days prior to each such meeting of stockholders, the Stockholders shall
cause all Voting Securities beneficially owned by any member of the Restricted
Group to be voted in accordance with this Section 3.01. No Stockholder shall
revoke or change any vote in connection with any such meeting of stockholders
unless such revocation or change is required or permitted in accordance with the
first sentence of this Section 3.01.
ARTICLE IV
STANDSTILL AND OTHER AGREEMENTS
4.01 Standstill. From the date hereof through the later to occur of (a)
June 2, 2006, and (b) the earliest of (i) the Director Termination Date, (ii)
the termination of the Strategic Process by a majority of the Board of Directors
or (iii) the consummation of the transaction effected as a result of the
Strategic Process (the later of (a) and (b) being the "Standstill Termination
Date"), no member of the Restricted Group will, directly or indirectly, (i)
engage in any "solicitation" of "proxies" (as such terms are used in the proxy
rules promulgated under the Exchange Act, but disregarding the exclusion in
clause (iv) of Rule 14a-1(l)(2) but including any exempt solicitation pursuant
to Rule 14a-2(b)(1) or (2)), submit any proposal (including nominations of
director candidates, except as provided in Section 2.01) for consideration at
any annual or special meeting of the stockholders of the Company (including
pursuant to Rule 14a-8 promulgated under the Exchange Act), (ii) form, join or
in any way participate in a "group" (as defined in Section 13(d)(3) of the
Exchange Act) with respect to any Equity Securities which proposes to take any
action or enter into any transaction that is prohibited by this Section, nor
will they provide any financing to any such group for any such purpose, or (iii)
engage in any Schedule 13D Transaction or file any amendment to the Schedule 13D
previously filed by the Stockholders with the Commission indicating that any
member of the Restricted Group has a plan or proposal to engage in, or that it
has engaged in, a Schedule 13D Transaction (other than an amendment filed
following the execution and delivery of this Stockholders Agreement announcing
such execution and delivery or subsequent filings necessitated by the terms of
this Agreement and actions by the parties thereunder); provided that the
foregoing prohibition shall not impair or affect the exercise by a Third Point
Designee of his or her fiduciary duties as a director of the Company in his or
her capacity as such or prohibit filings believed in good faith, after
consultation with counsel, to be required by law as a consequence thereof; and
provided further that any such filings shall be provided to the Company in
advance of filing and the Company shall be permitted a reasonable opportunity to
comment thereon (it being understood that such filings may be required to be
filed with the Commission promptly).
4.02 Expenses. The Company shall reimburse Third Point and its
affiliates for all out-of-pocket costs and expenses actually incurred by Third
Point and its affiliates directly related to (a) their efforts to induce the
Company to pursue strategic alternatives and cause the Stockholder Meeting to be
called, (b) the preparation and filing of any proxy materials by Third
7
Point and its affiliates, (c) the solicitation of proxies and (d) the
negotiation and entering into of this Stockholders Agreement prior to the date
hereof, including without limitation legal and accounting fees and the fees of
the proxy solicitor retained by Third Point and its affiliates ("Expenses");
provided, that reimbursement of such Expenses shall not exceed in the aggregate
of $475,000; provided further, that prior to such reimbursement Third Point and
its affiliates shall provide invoices to document such Expenses. Notwithstanding
the foregoing, fifty percent (50%) of such Expenses shall be reimbursed by the
Company within five (5) business days of receipt by the Company of invoices
referenced in the immediately preceding sentence with the remaining fifty
percent (50%) of such Expenses to be reimbursed by the Company on June 2, 2006;
provided that the second reimbursement payment hereunder shall only be made if
(A) the Director Termination Date has not occurred prior to June 2, 2006 and (B)
if a definitive document arising out of or related to the Strategic Process has
not been executed by the Company on or before June 2, 2006.
4.03 Fiduciary and Other Duties. Each Third Point Designee acknowledges his
or her obligations under Section 2.04 of this Agreement in addition to the
fiduciary duties and common law duties of trust and confidentiality under which
every member of the Board of Directors of a Delaware company operates.
4.04 Notification of Meeting at Which Election of Directors to Be
Considered. The Company shall provide written notice in accordance with Section
7.03 of this Agreement at least seventy five (75) days in advance of a date set
for any meeting of stockholders at which the election of directors is to be
considered following the meeting of stockholders set for January 31, 2006 (or
any adjournment or postponement thereof permitted in accordance with the
Stipulated Order and Final Judgment approved by the Delaware Chancery Court, New
Castle County, on November 14, 2005).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to the Company as follows:
5.01 Authority. This Stockholders Agreement has been duly and validly
executed and delivered by each Stockholder and constitutes a legal, valid and
binding obligation of such Stockholder enforceable against such Stockholder in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.02 No Conflicts. The execution and delivery by each Stockholder of this
Stockholders Agreement do not, and the performance by each Stockholder of such
Stockholder's obligations under this Stockholders Agreement and the consummation
of the transactions contemplated hereby will not:
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(a) conflict with or result in a violation or breach of any term or
provision of any law, statute, rule or regulation or any order, judgment or
decree of any Governmental or Regulatory Authority applicable to such
Stockholder or any of such Stockholder's properties or assets; or
(b) (i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under,
(iii) require such Stockholder to obtain any consent, approval or action of,
make any filing with or give any notice to any Person as a result or under the
terms of, or (iv) result in the creation or imposition of any Lien upon any of
such Stockholder's properties or assets under, any contract, agreement, plan,
permit or license to which such Stockholder is a party.
5.03 Governmental Approvals and Filings. No consent, approval or action of,
filing with or notice to any Governmental or Regulatory Authority on the part of
any Stockholder is required in connection with the execution and delivery of
this Stockholders Agreement, other than any filing with the Commission required
in connection with the execution and/or delivery of this Stockholders Agreement
or the joint press release referred to in Section 7.01.
5.04 Third Point Shares. Except for the Third Point Shares listed on
Schedule I hereto, the members of the Restricted Group do not beneficially own
any shares of Common Stock.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Stockholders as follows:
6.01 Incorporation. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. The
Company has the requisite corporate power and authority to execute and deliver
this Stockholders Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
6.02 Authority. The execution and delivery by the Company of this
Stockholders Agreement, and the performance by the Company of its obligations
hereunder, have been duly and validly authorized by the Board of Directors, no
other corporate action on the part of the Company or its stockholders being
necessary. This Stockholders Agreement has been duly and validly executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
6.03 No Conflicts. The execution and delivery by the Company of this
Stockholders Agreement do not, and the performance by the Company of its
obligations under
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this Stockholders Agreement and the consummation of the transactions
contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the Certificate of Incorporation or Bylaws;
(b) conflict with or result in a violation or breach of any term or
provision of any law, statute, rule or regulation or any order, judgment or
decree of any Governmental or Regulatory Authority applicable to the Company or
any of its properties or asset; or
(c) (i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under,
(iii) require the Company to obtain any consent, approval or action of, make any
filing with or give any notice to any Person as a result or under the terms of
or (iv) result in the creation or imposition of any Lien upon the Company or any
of its properties or assets under, any contract, agreement, plan, permit or
license to which the Company is a party.
6.04 Governmental Approvals and Filings. No consent, approval or action of,
filing with or notice to any Governmental or Regulatory Authority on the part of
the Company is required in connection with the execution and delivery of this
Stockholders Agreement, other than any filing with the Commission required in
connection with the execution and/or delivery of this Stockholders Agreement or
the joint press release referred to in Section 7.01.
ARTICLE VII
GENERAL PROVISIONS
7.01 Publicity. The Company and Third Point will provide each other with
reasonable cooperation in connection with the filings with the Commission
required of the Company and the Stockholders in connection with the execution
and delivery of this Stockholders Agreement, and will give the other an
opportunity to review such party's filing before it is submitted to the
Commission. Third Point and the Company will cooperate with each other in the
development and distribution of a joint press release announcing the execution
and delivery of this Stockholders Agreement.
7.02 Amendment and Waiver.
(a) This Stockholders Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party hereto.
(b) Any term or condition of this Stockholders Agreement may be waived at
any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Stockholders Agreement, in any one or
more instances, shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Stockholders Agreement on any future
occasion. All
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remedies, either under this Stockholders Agreement or by law or otherwise
afforded, will be cumulative and not alternative.
7.03 Notices.
(a) For all purposes of this Stockholders Agreement, the Company shall not
be required to recognize any notice purportedly delivered by or on behalf of any
Stockholder or any other member of the Restricted Group unless such notice is
delivered to the Company by or on behalf of Third Point.
(b) All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or by reputable overnight courier (postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to any Stockholder or other member of the Restricted Group, to:
Third Point LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxx Xxxx
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Company, to:
Ligand Pharmaceuticals Incorporated
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: General Counsel
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with a copy to:
Xxxxxx & Xxxxxxx LLP
00000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx Xxxxxxxx, Esq.
Xxxx X. Xxxxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by overnight courier in the manner described above to the address as provided in
this Section, be deemed given upon receipt (in each case regardless of whether
such notice, request or other communication is received by any other person to
whom a copy of such notice, request or other communication is to be delivered
pursuant to this Section). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving notice specifying such change to the other parties hereto.
7.04 Entire Agreement. This Stockholders Agreement and the Schedule hereto
supersede all prior discussions and agreements among the parties hereto with
respect to the subject matter hereof, and contains the sole and entire agreement
among the parties hereto with respect to the subject matter hereof.
7.05 No Third Party Beneficiary. The terms and provisions of this
Stockholders Agreement are intended solely for the benefit of each party hereto
and the other members of the Restricted Group, and it is not the intention of
the parties to confer third-party beneficiary rights upon any other Person.
7.06 No Assignment; Binding Effect. Neither this Stockholders Agreement nor
any right, interest or obligation hereunder may be assigned by any parties
hereto without the prior written consent of the other party hereto and any
attempt to do so will be void. Subject to the preceding sentence, this
Stockholders Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and assigns
and legal representatives.
7.07 Specific Performance. The parties acknowledge that money damages are
not an adequate remedy for violations of any provision of this Stockholders
Agreement and that any party may, in such party's sole discretion, apply to a
court of competent jurisdiction for specific performance for injunctive or such
other relief as such court may deem just and proper in order to enforce any such
provision or prevent any violation hereof and, to the extent permitted by
applicable law, each party waives any objection to the imposition of such
relief.
7.08 Headings. The headings used in this Stockholders Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
12
7.09 Invalid Provisions. If any provision of this Stockholders Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
and if the intended rights of any party hereto under this Stockholders Agreement
will not be forfeited in any material respect as a result thereof, (i) such
provision will be fully severable, (ii) this Stockholders Agreement will be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof and (iii) the remaining provisions of this
Stockholders Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom.
7.10 Governing Law. This Stockholders Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to a
contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof.
7.11 Consent to Jurisdiction and Service of Process. Each party hereby
irrevocably submits to the exclusive jurisdiction of the United States District
Court for the District of Delaware or any court of the State of Delaware in any
action, suit or proceeding arising in connection with this Stockholders
Agreement, agrees that any such action, suit or proceeding shall be brought only
in such court (and waives any objection based on forum non conveniens or any
other objection to venue therein to the extent permitted by law), and agrees to
delivery of service of process by any of the methods by which notices may be
given pursuant to Section 7.03, with such service being deemed given as provided
in such Section; provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this Section 7.11 and shall not be deemed to be a
general submission to the jurisdiction of said courts or in the State of
Delaware other than for such purpose. Nothing herein shall affect the right of
any party to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against the other in any other
jurisdiction.
7.12 Counterparts. This Stockholders Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
13
IN WITNESS WHEREOF, each party hereto has signed this Stockholders
Agreement, or caused this Stockholders Agreement to be signed on its behalf, as
of the date first above written.
LIGAND PHARMACEUTICALS INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman, President
and Chief Executive Officer
THIRD POINT LLC
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title:
THIRD POINT OFFSHORE FUND, LTD.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title:
THIRD POINT PARTNERS LP
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title:
THIRD POINT ULTRA LTD.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title:
THIRD POINT PARTNERS QUALIFIED LP
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title:
SCHEDULE I
Shares of Common Stock Beneficially Owned by the Stockholders
Stockholder Number
----------- ------
Xxxxxx X. Xxxx* 7,375,000
Third Point LLC* 7,375,000
Third Point Offshore Fund, Ltd. 4,725,800
Third Point Partners LP 940,100
Third Point Ultra Ltd. 777,400
Lyxor/Third Point Fund Ltd. 463,300
Third Point Partners Qualified LP 468,400
------------------
* The indicated Stockholders beneficially own the shares indicated by virtue
of their control of the other Stockholders.
