Exhibit 10.32
EXECUTION COPY
AMENDMENT NO. 1
TO
SECURITIES PURCHASE
AGREEMENT
THIS AMENDMENT NO. 1 (the “
Amendment ”), dated January 16, 2009, amends that
certain Securities Purchase Agreement, dated as of January 4,
2009 (the “ Agreement ”), by and between La
Jolla Pharmaceutical Company, a Delaware corporation (the “
Company ”), and BioMarin Pharmaceutical Inc., a
Delaware corporation (the “ Purchaser
”).
RECITALS
A. WHEREAS, the Purchaser and the
Company are parties to the Agreement, which provides for the
issuance of shares of the Company’s Series B Convertible
Preferred Stock on the terms set forth therein;
B. WHEREAS, Exhibit A to the
Agreement sets forth the form of Certificate of Designation to be
filed with the Delaware Secretary of State to designate the rights,
preferences and privileges of the Company’s Series B-1
Convertible Preferred Stock (the “ Certificate
”);
C. WHEREAS, the Certificates of
Designation to be filed with respect to the Company’s Series
B-2 Convertible Preferred Stock and Series B-3 Convertible
Preferred Stock are to be in substantially the form of the
Certificate, with any appropriate adjustments needed to reflect the
issuance price for such shares;
D. WHEREAS, under the terms of the
Certificate, the Series B Convertible Preferred Stock is
convertible into Common Stock at an initial ratio of one-for-three
( i.e., three shares of Common Stock for every one share of
Series B Convertible Preferred Stock); and
E. WHEREAS, the Company and the
Purchaser wish to amend the form of Certificate and certain related
terms of the Agreement to change the initial conversion ratio for
the Common Stock to one-for-thirty ( i.e., thirty shares of
Common Stock for every one share of Series B Convertible Preferred
Stock).
Now therefore, in consideration of
the foregoing, the parties agree as follows:
1. Section 1.2 of the Agreement
is amended and restated in its entirety as follows:
“1.2 Purchase and Sale
. Subject to the terms and conditions of this Agreement and the
Collaboration Agreement, on the date hereof, the Company agrees to
sell to the Purchaser, and the Purchaser agrees to purchase from
the Company, 339,104 Shares (the “ Initial Investment
”) at a purchase price per share of $22.1171, in the case of
the Initial Closing, or, in the case of a Subsequent Closing (as
defined below) at a price per common share equivalent (based on the
conversion ratio provided for in the applicable Certificate of
Designation, as adjusted) equal to one hundred ten percent
(110%) of the average closing price of the Common Stock of the
Company as reported on the NASDAQ stock market or such other
reporting service as the stock is then quoted if not then quoted on
NASDAQ (and if not then traded at the value determined by an
investment bank selected consistent with the provisions of
Section 14.3 of the Collaboration Agreement), for the ten
(10)
consecutive trading days commencing
five (5) trading days immediately prior to the date the
Company has publicly announced the event that triggered such
payment ( i.e., the P-Value Achievement, or in the case of
such payment where there is no P-Value Achievement, the
Company’s first public announcement of the results of the
Second Interim Efficacy Analysis or the first public announcement
of the approval of an NDA for the Product under Section 7.13
of the Collaboration Agreement (the “ Announcement of
Results ”)). Notwithstanding the foregoing, in no event
will the price per common equivalent for the Shares issued in a
Subsequent Closing (based on the conversion ratio provided for in
the applicable Certificate of Designation, as adjusted) be less
than $0.73724.
2. Exhibit A, as attached to the
Agreement, is hereby amended and restated in its entirety and is
replaced with Exhibit A attached to this Amendment. The defined
term “ Certificate of Designation ,” as used in
the Agreement, shall hereafter be deemed to refer to the
Certificate of Designation for the Series B-1 Convertible Preferred
Stock attached as Exhibit A to this Amendment.
3. Section 3.3 is hereby
amended to substitute 37,301,327 for 37,301,387.
4. Undefined capitalized terms used
in this Amendment shall have the meanings ascribed to them in the
Agreement.
5. Except as expressly set forth in
this Amendment, all other terms of the Agreement shall remain in
full force and effect and once this Amendment is executed by the
parties hereto, all references in the Agreement to “the
Agreement” or “this Agreement,” as applicable,
shall refer to the Agreement, as modified by this
Amendment.
6. This Amendment shall be governed
by and construed in accordance with the laws of the State of
California applicable to contracts made and to be performed
entirely within such State without regard to conflict of laws
principles thereof.
7. This Amendment may be executed in
any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same
instrument.
* * *
2
IN WITNESS WHEREOF, the parties
hereto have executed and delivered this Amendment as of the date
first above written.
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PURCHASER:
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BIOMARIN
PHARMACEUTICAL INC.
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By:
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/s/ G. Eric
Davis
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Name:
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G. Eric
Davis
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Title:
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VP, General
Counsel
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COMPANY:
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LA JOLLA
PHARMACEUTICAL COMPANY
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By:
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/s/ Deirdre Y.
Gillespie
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Name:
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Deirdre Y.
Gillespie
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Title:
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President and
Chief Executive Officer
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3
EXHIBIT A
Certificate of
Designation
LA JOLLA PHARMACEUTICAL
COMPANY
CERTIFICATE OF
DESIGNATIONS
OF
SERIES B-1 CONVERTIBLE PREFERRED
STOCK
(Pursuant to Section 151 of the
Delaware General Corporation Law)
La Jolla Pharmaceutical Company, a
Delaware corporation (the “ Corporation ”), in
accordance with the provisions of Section 103 of the Delaware
General Corporation Law (the “ DGCL ”) does
hereby certify that, in accordance with Section 151(g) of the
DGCL, the following resolution was duly adopted by the Board of
Directors of the Corporation as of December 18,
2008:
RESOLVED, that the Board of
Directors of the Corporation pursuant to authority expressly vested
in it by the provisions of the Amended and Restated Certificate of
Incorporation of the Corporation, hereby authorizes the issuance of
a series of preferred stock designated as the Series B-1
Convertible Preferred Stock, par value $0.01 per share, of the
Corporation and hereby fixes the designation, number of shares,
powers, preferences, rights, qualifications, limitations and
restrictions thereof (in addition to any provisions set forth in
the Amended and Restated Certificate of Incorporation of the
Corporation which are applicable to the preferred stock of all
classes and series) as follows:
SERIES B-1 CONVERTIBLE PREFERRED
STOCK
1. Designation, Amount and Par
Value . The series of preferred stock shall be designated as
the Corporation’s Series B-1 Convertible Preferred Stock (the
“ Series B-1 Pref
