SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Amendment No. 3
Under the Securities Exchange Act of 1934
La Jolla Pharmaceutical Company
-------------------------------
(Name of Issuer)
Common Stock
------------------------------
(Title of Class of Securities)
503459109
--------------
(CUSIP Number)
Eileen McCarthy
One Post Office Square, Suite 3800
Boston, MA 02109
(617) 482-8020
-----------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
July 19, 2000
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
|_|.
Check the following box if a fee is being paid with this statement |_|.
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class. (See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") or otherwise subject to the
liabilities of that section of the Exchange Act but shall be subject to all
other provisions of the Exchange Act.
(Continued on following page(s))
Page 1 of 18 Pages
<PAGE>
CUSIP No. 503459109 13D Page 2 of 18 Pages
--------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Alta Partners
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
WC
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
California
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 1,920,000
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power -0-
(9) Sole Dispositive Power 1,920,000
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,920,000
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
6.6%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
IA
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 3 of 18 Pages
--------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Alta BioPharma Partners, L.P.
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
WC
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
Delaware
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 1,193,445
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power -0-
(9) Sole Dispositive Power 1,193,445
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,193,445
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
4.1%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
PN
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 4 of 18 Pages
--------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Alta Embarcadero BioPharma, LLC
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
WC
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
California
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 44,984
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power -0-
(9) Sole Dispositive Power 44,984
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
44,984
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
0.2%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 5 of 18 Pages
--------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
La Jolla Chase Partners (Alta Bio), LLC
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
WC
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
Delaware
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 681,571
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power -0-
(9) Sole Dispositive Power 681,571
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
681,571
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
2.3%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 6 of 18 Pages
--------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Alta BioPharma Management, LLC
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
WC
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
Delaware
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 1,193,445
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power -0-
(9) Sole Dispositive Power 1,193,445
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,193,445
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
4.1%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 7 of 18 Pages
--------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Alta/Chase BioPharma Management, LLC
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
WC
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
Delaware
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power 681,571
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power -0-
(9) Sole Dispositive Power 681,571
(10) Shared Dispositive Power -0-
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
681,571
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
2.3%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 8 of 18 Pages
--------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Jean Deleage
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
AF
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,920,000
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,920,000
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,920,000
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
6.6%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 9 of 18 Pages
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(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Garrett Gruener
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
AF
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,920,000
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,920,000
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,920,000
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
6.6%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 10 of 18 Pages
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(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Daniel Janney
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
AF
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,920,000
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,920,000
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,920,000
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
6.6%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 11 of 18 Pages
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(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Alix Marduel
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(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
AF
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,920,000
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,920,000
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,920,000
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
6.6%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 12 of 18 Pages
--------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Guy Nohra
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
AF
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,920,000
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,920,000
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,920,000
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
6.6%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 503459109 13D Page 13 of 18 Pages
--------------------------------------------------------------------------------
(1) Names of Reporting Persons. SS or I.R.S. Identification Nos. of Above
Persons
Marino Polestra
--------------------------------------------------------------------------------
(2) Check The Appropriate Box If A Member Of A Group (a) |_|
(b) |X|
--------------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------------
(4) Source Of Funds*
AF
--------------------------------------------------------------------------------
(5) Check Box If Disclosure Of Legal Proceedings Is Required Pursuant To Items
2(d) Or 2(e) |_|
--------------------------------------------------------------------------------
(6) Citizenship Or Place Of Organization
U.S.A.
--------------------------------------------------------------------------------
Number Of Shares (7) Sole Voting Power -0-
Beneficially Owned
By Each Reporting
Person With (8) Shared Voting Power 1,920,000
(9) Sole Dispositive Power -0-
(10) Shared Dispositive Power 1,920,000
(11) Aggregate Amount Beneficially Owned By Each Reporting Person
1,920,000
--------------------------------------------------------------------------------
(12) Check If The Aggregate Amount In Row (11) Excludes Certain Shares*
--------------------------------------------------------------------------------
(13) Percent Of Class Represented By Amount In Row (11)
6.6%
--------------------------------------------------------------------------------
(14) Type Of Reporting Person
IN
--------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
Item 1. Security and Issuer.
This Statement on Schedule D relates to the Common Stock,
$0.01 par value per share (the "Shares"), of La Jolla Pharmaceutical Company, a
Delaware corporation (the "Company"). The principal executive offices of the
Company are located at 6455 Nancy Ridge Drive, San Diego, California, 92121.
Item 2. Identity and Background.
(a) This Statement is filed by Alta BioPharma Partners, L.P.,
a Delaware limited partnership ("Alta BioPharma"), and Alta Embarcadero
BioPharma, LLC, a California limited liability company ("Embarcadero LLC"), and
La Jolla Chase Partners (Alta Bio), LLC, a Delaware LLC ("La Jolla Alta Bio") by
virtue of their direct beneficial ownership of Shares, by Alta BioPharma
Management Partners, LLC, a Delaware limited liability company ("Alta
Management"), by virtue of being the sole general partner of Alta BioPharma, by
Alta/Chase BioPharma Management LLC, a Delaware limited liability company
(Alta/Chase Management) by virtue of being the sole managing director of La
Jolla Chase Partners (Alta Bio), LLC and by Alta Partners, a California
corporation ("Alta Partners"), by virtue of being the management advisory
company of these entities. Alta BioPharma, Embarcadero LLC, La Jolla Chase (Alta
Bio), Alta Management, Alta/Chase Management and Alta Partners are collectively
referred to as the "Reporting Persons." Jean Deleage, Garrett Gruener, Dan
Janney, Alix Marduel, Guy Nohra and Marino Polestra (the "Partners") are the
managing directors of Alta Management, Alta/Chase Management and officers of
Alta Partners. By virtue of the relationships described above and their roles
with Alta Partners, each of the Partners may be deemed to control Alta Partners,
Alta/Chase Management, Alta Management, and, therefore, may be deemed to possess
indirect beneficial ownership of the Shares held by each entity. However, none
of the Partners, acting alone, has voting or investment power with respect to
the Shares directly beneficially held by the entities and, as a result, the
Partners disclaim beneficial ownership of the Shares directly beneficially owned
by each entity, except to the extent of their pecuniary interest in each entity.
Embarcadero LLC is a side company that makes all investments pro rata to the
capital of Alta BioPharma with all allocations made to its members based on
paid-in capital. Certain of the Partners are members of Embarcadero LLC and
certain members of Embarcadero LLC are affiliates of Alta Partners.
(b) The principal executive offices of Alta BioPharma,
Embarcadero LLC, La Jolla Alta Bio, Alta Management, Alta/Chase Management and
Alta Partners, and the business address of each Partner, are located at One
Embarcadero Center, Suite 4050, San Francisco, California 94111.
(c) Alta Partners provides investment advisory services to
venture capital firms. Alta BioPharma, La Jolla Alta Bio and Embarcadero LLC's
principal business is acting as venture capital investment vehicles. Alta/Chase
Management and Alta Management's principal business is acting as managing
director of La Jolla Alta Bio and Alta BioPharma, respectively. Each of the
Partners' principal business is acting as a managing director of Alta Management
and Alta/Chase Management and as an officer of Alta Partners.
(d) None of the Reporting Persons or, to the knowledge of the
Reporting Persons, any of the Partners, has been convicted in a criminal
proceeding in the past five years (excluding traffic violations or similar
misdemeanors).
(e) During the past five years, none of the Reporting Persons
or, to the knowledge of the Reporting Persons, and none of the Partners, was a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which such person was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws of finding any
violation with respect to such laws.
<PAGE>
(f) Alta Partners is a California corporation. Alta BioPharma
is a Delaware limited partnership. Embarcadero LLC is a California limited
liability corporation. La Jolla Chase Alta Bio is a Delaware limited liability
company. Alta Management and Alta/Chase Management are Delaware limited
liability companies. Each of the Partners is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
The total amount of funds required by Alta BioPharma to
acquire the 1,193,445 shares of Common Stock reported in Item 5(a) was
$6,819,043.98, the total amount of funds required by Embarcadero LLC to acquire
the 44,984 shares of Common Stock reported in Item 5(a) was $257,027.24 and the
total amount of funds required by La Jolla Alta Bio to acquire the 681,571
shares of Common Stock reported in Item 5(a) was $3,894,324.94. Such funds were
provided by each entity's capital available for investment.
Item 4. Purpose of Transaction.
Alta BioPharma, Embarcadero LLC, and La Jolla Alta Bio
acquired the Common Stock reported in Item 5(c) for investment only. Depending
upon their evaluation of the Company's investments and prospects, and upon
future developments (including, but not limited to, market for the Shares, the
effective yield on the Shares, availability of funds, alternative uses of funds,
and money, stock market and general economic conditions), each of the Reporting
Persons may from time to time purchase the Common Stock, dispose of all or a
portion of the Common Stock that it holds, or cease buying or selling Common
Stock. Any such additional purchases or sales of the Common Stock may be in open
market or privately negotiated transactions or otherwise.
On February 17, 2000, Alta BioPharma, Embarcadero LLC and La
Jolla Alta Bio entered into a Stock Purchase Agreement (the "Stock Purchase
Agreement") with the Company pursuant to which Alta BioPharma, Embarcadero LLC
and La Jolla Chase Alta Bio acquired, for an aggregate purchase price of
$7,375,989.06, a total of 1,470,000 Shares of Common Stock. The entities also
entered into a Registration Rights Agreement. On July 19, 2000, Alta BioPharma,
Embarcadero LLC and La Jolla Alta Bio acquired, for an aggregate purchase price
of $2,756,250.01, a total of 450,000 Shares of Common Stock. The entities also
entered into a Registration Rights Agreement.
Item 5. Interest in Securities of the Issuer.
(a) Alta BioPharma is the direct beneficial owner of 1,193,445
shares of Common Stock or approximately 4.1% of the shares deemed outstanding by
the Company (29,286,234) as of July 19, 2000. La Jolla Alta Bio is the direct
beneficial owner of 681,571 shares of Common Stock or approximately 2.3% of the
shares deemed outstanding by the Company (29,286,234) as of July 19, 2000.
Embarcadero LLC is the direct beneficial owner of 44,984 shares of Common Stock
or approximately 0.2% of the shares deemed outstanding by the Company
(29,286,234) as of July 19, 2000.
(b) Each entity has the power to direct the disposition of and
vote the stock held by it. By virtue of the relationships previously reported
under Item 2 of this Statement, Alta Management, Alta/Chase Management and Alta
Partners may be deemed to have indirect beneficial ownership of the shares owned
by such entities.
(c) On February 17, 2000 Alta BioPharma, La Jolla Alta Bio,
and Embarcadero LLC acquired the Shares described in Item 3 of this Statement in
a privately negotiated transaction with the Company for aggregate consideration
of $3,083,842.13, $1,761,169.50 and $116,238.38, respectively.
<PAGE>
On July 19, 20000 Alta BioPharma, La Jolla Alta Bio, and
Embarcadero LLC acquired an additional 279,714, 159,743 and 10,543 Shares,
respectively, in a privately negotiated transaction with certain shareholders of
the Company for aggregate consideration of $1,713,248.25, $978,425.88 and
$64,575.88, respectively.
Except as set forth above, neither the Reporting Persons nor
the Partners have effected any transaction in the Shares during the past 60
days.
(d) Alta BioPharma, La Jolla Alta Bio and Embarcadero LLC each
have the right to receive dividends and proceeds from the sale of Common Stock
held by it. By virtue of the relationships reported in Item 2 of this Statement,
Alta Management, Alta/Chase Management and Alta Partners may be deemed to have
the power to direct the receipt of dividends and the proceeds from the sale of
the Common Stock held by each entity.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
The La Jolla Pharmaceutical Company Stock Purchase Agreement
dated July 19, 2000 and The La Jolla Pharmaceutical Company Registration Rights
Agreement dated July 19, 2000 are hereby incorporated in their entirety by this
reference.
Item 7. Material to be Filed as Exhibits.
Exhibit A: Joint Filing Statement.
Exhibit B: La Jolla Pharmaceutical Company Stock Purchase
Agreement dated July 19, 2000.
Exhibit C: La Jolla Pharmaceutical Company Registration Rights
Agreement dated July 19, 2000.
<PAGE>
Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Date: July 19, 2000
Alta Partners Alta BioPharma Partners, L.P.
By: /s/ /Jean Deleage By: Alta BioPharma Management, LLC
------------------------------ Its General Partner
Jean Deleage, Vice President
By: /s/ Alix Marduel
-------------------------------
Alta BioPharma Management, LLC Alix Marduel, Managing Director
By: /s/ Garrett Gruener La Jolla Chase Partners (Alta Bio), LLC
------------------------------
Garrett Gruener, Member
By: Alta/Chase BioPharma
Management, LLC
Alta/Chase BioPharma Management, LLC Its Managing Member
By: /s/ Alix Marduel
By: /s/ Alix Marduel -------------------------------
------------------------------ Alix Marduel, Member
Alix Marduel, Member
Alta Embarcadero BioPharma, LLC
By: /s/ Garrett Gruener
------------------------------
Garrett Gruener, Member
/s/ Jean Deleage /s/ Guy Nohra
------------------------------------ -------------------------------
Jean Deleage Guy Nohra
/s/ /Garrett Gruener /s/ Marino Polestra
------------------------------------ -------------------------------
Garrett Gruener Marino Polestra
/s/ Daniel Janney /s/ Alix Marduel
------------------------------------ -------------------------------
Daniel Janney Alix Marduel
<PAGE>
EXHIBIT A
Joint Filing Statement
We, the undersigned, hereby express our agreement that the attached
Schedule 13D is filed on behalf of each of us.
Date: July 19, 2000
Alta Partners Alta BioPharma Partners, L.P.
By: /s/ /Jean Deleage By: Alta BioPharma Management, LLC
------------------------------ Its General Partner
Jean Deleage, Vice President
By: /s/ Alix Marduel
-------------------------------
Alta BioPharma Management, LLC Alix Marduel, Managing Director
By: /s/ Garrett Gruener La Jolla Chase Partners (Alta Bio), LLC
------------------------------
Garrett Gruener, Member
By: Alta/Chase BioPharma
Management, LLC
Alta/Chase BioPharma Management, LLC Its Managing Member
By: /s/ Alix Marduel
By: /s/ Alix Marduel -------------------------------
------------------------------ Alix Marduel, Member
Alix Marduel, Member
Alta Embarcadero BioPharma, LLC
By: /s/ Garrett Gruener
------------------------------
Garrett Gruener, Member
/s/ Jean Deleage /s/ Guy Nohra
------------------------------------ -------------------------------
Jean Deleage Guy Nohra
/s/ /Garrett Gruener /s/ Marino Polestra
------------------------------------ -------------------------------
Garrett Gruener Marino Polestra
/s/ Daniel Janney /s/ Alix Marduel
------------------------------------ -------------------------------
Daniel Janney Alix Marduel
<PAGE>
Exhibit B
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of the
____ day of July, 2000 by and between La Jolla Pharmaceutical Company, a
Delaware corporation with its principal office at 6455 Nancy Ridge Drive, San
Diego, California (the "Company"), and the several purchasers named in Exhibit A
attached hereto (each, a "Purchaser" and collectively, the "Purchasers").
WHEREAS, the Company desires to issue and sell to the Purchasers an
aggregate of up to _________ shares (the "Shares") of the authorized but
unissued shares of common stock, $.01 par value per share, of the Company (the
"Common Stock"); and
WHEREAS, the Purchasers, severally, wish to purchase the Shares on the
terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements,
representations, warranties and covenants herein contained, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "Affiliate" of a party means any corporation or other
business entity controlled by, controlling or under common control with such
party. For this purpose "control" shall mean direct or indirect beneficial
ownership of fifty percent (50%) or more of the voting or income interest in
such corporation or other business entity.
(b) "Closing Date" means the date of the Closing.
(c) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, and all of the rules and regulations promulgated thereunder.
(d) "Registration Rights Agreement" shall mean that certain
Registration Rights Agreement, dated as of the date hereof, among the Company
and the Purchasers.
(e) "Majority Purchasers" shall mean Purchasers which, at any
given time, hold greater than fifty percent (50%) of the voting power of the
outstanding Shares.
(f) "SEC" shall mean the Securities and Exchange Commission.
(g) "Securities Act" shall mean the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated thereunder.
2. Purchase and Sale of Shares.
2.1 Purchase and Sale. Subject to and upon the terms and
conditions set forth in this Agreement, the Company agrees to issue and sell to
each Purchaser, and each Purchaser, severally, hereby agrees to purchase from
the Company, at the Closing, the number of shares of Common Stock set forth
opposite the name of such Purchaser under the heading "Number of Shares to be
Purchased" on Exhibit A hereto, at a purchase price of $_____ per share. The
total purchase price payable by each Purchaser for the number of shares of
Common Stock that such Purchaser is hereby agreeing to purchase
<PAGE>
is set forth opposite the name of such Purchaser under the heading "Purchase
Price" on Exhibit A hereto. The aggregate purchase price payable by the
Purchasers to the Company for all of the Shares shall be $___________________.
2.2 Closing. The closing of the transactions contemplated
under this Agreement (the "Closing") shall take place at the offices of Gibson,
Dunn & Crutcher LLP in Irvine, California on the second business day after the
Company shall have given written notice to (the "Closing Notice") the Purchasers
that all of the conditions precedent set forth in Section 6.1 have been
satisfied in full or at such other location, date and time as may be agreed upon
between the Purchasers and the Company. At the Closing, the Company shall
deliver to each Purchaser a single stock certificate, registered in the name of
such Purchaser, representing the number of shares of Common Stock purchased by
such Purchaser, against payment of the purchase price therefor by wire transfer
of immediately available funds to such account or accounts as the Company shall
designate in writing.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to each of the Purchasers as follows:
3.1 Incorporation. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is qualified to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification, except where the failure to so qualify would not have a material
adverse effect upon the Company. The Company has all requisite corporate power
and authority to carry on its business as now conducted.
3.2 Capitalization. The authorized capital stock of the
Company consists of (i) 100,000,000 shares of Common Stock, of which 24,486,234
shares are outstanding as of June 30, 2000 and (ii) 8,000,000 shares of
preferred stock, of which no shares are outstanding on the date hereof. Except
as set forth in Schedule 3.2 hereto, there are no existing options, warrants,
calls, preemptive (or similar) rights, subscriptions or other rights,
agreements, arrangements or commitments of any character obligating the Company
to issue, transfer or sell, or cause to be issued, transferred or sold, any
shares of the capital stock of the Company or other equity interests in the
Company or any securities convertible into or exchangeable for such shares of
capital stock or other equity interests, and there are no outstanding
contractual obligations of the Company to repurchase, redeem or otherwise
acquire any shares of its capital stock or other equity interests.
3.3 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered by
the Company, each of this Agreement and the Registration Rights Agreement shall
constitute the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such may be limited
by bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights generally and by general equitable principles. The Company has all
requisite corporate power to enter into this Agreement and the Registration
Rights Agreement and to carry out and perform its obligations under the terms of
this Agreement, and the Registration Rights Agreement.
3.4 Valid Issuance of the Shares. The Shares being purchased
by the Purchasers hereunder will, upon issuance pursuant to the terms hereof, be
duly authorized and validly issued, fully paid and nonassessable.
3.5 Financial Statements. The Company has furnished to each
Purchaser its audited Statements of Income, Stockholders' Equity and Cash Flows
for the fiscal year ended December 31, 1999, its audited Balance Sheet as of
December 31, 1999, its unaudited Statements of Income, Stockholders' Equity and
Cash Flows for the period from December 31, 1999 through March 31, 2000 and its
unaudited Balance Sheet as of March 31, 2000. All such financial statements are
hereinafter referred to collectively
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as the "Financial Statements". The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved, and fairly present, in all material respects,
the financial position of the Company and the results of its operations as of
the date and for the periods indicated thereon, except that the unaudited
financial statements may not be in accordance with generally accepted accounting
principles because of the absence of footnotes normally contained therein and
are subject to normal year-end audit adjustments which, individually, and in the
aggregate, will not be material. Since March 31, 2000, to the Company's
knowledge, there has been no material adverse change (actual or threatened) in
the assets, liabilities (contingent or other), affairs, operations, prospects or
condition (financial or other) of the Company.
3.6 SEC Documents. The Company has furnished to each
Purchaser, a true and complete copy of the Company's Annual Report on Form 10-K
for the year ended December 31, 1999, the Company's Quarterly Report on Form
10-Q for three months ended March 31, 2000, and any other statement, report,
registration statement (other than registration statements on Form S-8) or
definitive proxy statement filed by the Company with the SEC during the period
commencing December 31, 1999 and ending on the date hereof. The Company will,
promptly upon the filing thereof, also furnish to each Purchaser all statements,
reports (including, without limitation, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K), registration statements and definitive proxy
statements filed by the Company with the SEC during the period commencing on the
date hereof and ending on the Closing Date (all such materials required to be
furnished to each Purchaser pursuant to this sentence or pursuant to the next
preceding sentence of this Section 3.6 being called, collectively, the "SEC
Documents"). Except as set forth on Schedule 3.6, as of their respective filing
dates, the SEC Documents complied or will comply in all material respects with
the requirements of the Exchange Act or the Securities Act, as applicable, and
none of the SEC Documents contained or will contain any untrue statement of a
material fact or omitted or will omit to state a material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading, as of
their respective filing dates, except to the extent corrected by a subsequently
filed SEC Document.
3.7 Consents. All consents, approvals, orders and
authorizations required on the part of the Company in connection with the
execution, delivery or performance of this Agreement and the Registration Rights
Agreement and the consummation of the transactions contemplated herein and
therein have been obtained and will be effective as of the Closing Date.
3.8 No Conflict. The execution and delivery of this Agreement
and the Registration Rights Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to a loss of a material benefit under (i) any provision of the
Certificate of Incorporation or bylaws of the Company or (ii) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations, applicable to the Company or its respective
properties or assets.
3.9 Brokers or Finders. Except for Pacific Growth Equities,
Inc., the Company has not dealt with any broker or finder in connection with the
transactions contemplated by this Agreement, and, except for certain fees and
expenses payable by the Company to Pacific Growth Equities, Inc., the Company
has not incurred, and shall not incur, directly or indirectly, any liability for
any brokerage or finders' fees or agents commissions or any similar charges in
connection with this Agreement or any transaction contemplated hereby.
3.10 Nasdaq National Market. The Common Stock is listed on the
Nasdaq National Market System, and there are no proceedings to revoke or suspend
such listing.
3.11 Absence of Litigation. There is no action, suit or
proceeding or, to the Company's knowledge, any investigation, pending, or to the
Company's knowledge, threatened by or
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before any governmental body against the Company and in which an unfavorable
outcome, ruling or finding in any said matter, or for all matters taken as a
whole, might have a material adverse effect on the Company. The foregoing
includes, without limitation, any such action, suit, proceeding or investigation
that questions this Agreement or the Registration Rights Agreement or the right
of the Company to execute, deliver and perform under same.
3.12 No Bad Acts. The Company represents and warrants that, to
the best of its knowledge, none of its directors or officers is or has been the
subject of, or a defendant in: (i) an enforcement action or prosecution (or
settlement in lieu thereof) brought by a governmental authority relating to a
violation of securities, fiduciary or criminal laws, or (ii) a civil action (or
settlement in lieu thereof) brought by shareholders or investors for violation
of duties owed to the shareholders or investors.
3.13 Freedom to Operate. To the best of the Company's
knowledge, the conduct by the Company of its businesses, and the manufacture by
the Company of its products, does not conflict with, infringe upon or violate
any patent, copyright, trademark, registration or other intellectual property
right of any other person or entity.
4. Representations and Warranties of the Purchasers. Each Purchaser
severally for itself, and not jointly with the other Purchasers, represents and
warrants to the Company as follows:
4.1 Authorization. All action on the part of such Purchaser
and, if applicable, its officers, directors and shareholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered,
each of this Agreement and the Registration Rights Agreement will constitute the
legal, valid and binding obligation of such Purchaser, enforceable against such
Purchaser in accordance with its terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors' rights
generally and by general equitable principles. Such Purchaser has all requisite
corporate power to enter into each of this Agreement and the Registration Rights
Agreement and to carry out and perform its obligations under the terms of this
Agreement and the Registration Rights Agreement.
4.2 Purchase Entirely for Own Account. Such Purchaser is
acquiring the Shares being purchased by it hereunder for investment, for its own
account, and not for resale or with a view to distribution thereof in violation
of the Securities Act.
4.3 Investor Status; Etc. Such Purchaser certifies and
represents to the Company that at the time such Purchaser acquires any of the
Shares, such Purchaser will be an "Accredited Investor" as defined in Rule 501
of Regulation D promulgated under the Securities Act and was not organized for
the purpose of acquiring the Shares. Such Purchaser's financial condition is
such that it is able to bear the risk of holding the Shares for an indefinite
period of time and the risk of loss of its entire investment. Such Purchaser has
been afforded the opportunity to ask questions of and receive answers from the
management of the Company concerning this investment and has sufficient
knowledge and experience in investing in companies similar to the Company in
terms of the Company's stage of development so as to be able to evaluate the
risks and merits of its investment in the Company.
4.4 Shares Not Registered. Such Purchaser understands that the
Shares have not been registered under the Securities Act, by reason of their
issuance by the Company in a transaction exempt from the registration
requirements of the Securities Act, and that the Shares must continue to be held
by such Purchaser unless a subsequent disposition thereof is registered under
the Securities Act or is exempt from such registration. The Purchaser
understands that the exemptions from registration afforded by Rule 144 (the
provisions of which are known to it) promulgated under the Securities Act depend
on the satisfaction of various conditions, and that, if applicable, Rule 144 may
afford the basis for sales only in limited amounts.
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4.5 No Conflict. The execution and delivery of this Agreement
and the Registration Rights Agreement by such Purchaser and the consummation of
the transactions contemplated hereby and thereby will not conflict with or
result in any violation of or default by such Purchaser (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under (i) any provision of the organizational documents of such
Purchaser or (ii) any agreement or instrument, permit, franchise, license,
judgment, order, statute, law, ordinance, rule or regulations, applicable to
such Purchaser or its respective properties or assets.
4.6 Brokers. Such Purchaser has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement.
4.7 Consents. All consents, approvals, orders and
authorizations required on the part of such Purchaser in connection with the
execution, delivery or performance of this Agreement and the consummation of the
transactions contemplated herein have been obtained and are effective as of the
Closing Date.
5. Conditions Precedent.
5.1. Conditions to the Obligation of the Purchasers to
Consummate the Closing. The obligation of each Purchaser to consummate the
Closing and to purchase and pay for the Shares being purchased by it pursuant to
this Agreement is subject to the satisfaction of the following conditions
precedent:
(a) The representations and warranties contained herein of the
Company shall be true and correct on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date (it being
understood and agreed by each Purchaser that, in the case of any representation
and warranty of the Company contained herein which is not hereinabove qualified
by application thereto of a materiality standard, such representation and
warranty need be true and correct only in all material respects in order to
satisfy as to such representation or warranty the condition precedent set forth
in the foregoing provisions of this Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed
and delivered by the Company.
(c) The Company shall not have been adversely affected in any
material way prior to the Closing Date; and the Company shall have performed all
obligations and conditions herein required to be performed or observed by the
Company on or prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
(e) The purchase of and payment for the Shares by the
Purchasers shall not be prohibited by any law or governmental order or
regulation. All necessary consents, approvals, licenses, permits, orders and
authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or of any other person with respect to any
of the transactions contemplated hereby shall have been duly obtained or made
and shall be in full force and effect.
(f) All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to such Purchaser, and such
Purchaser shall have received copies (executed or certified, as may
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<PAGE>
be appropriate) of all documents which such Purchaser may have reasonably
requested in connection with such transactions.
5.2. Conditions to the Obligation of the Company to Consummate
the Closing. The obligation of the Company to consummate the Closing and to
issue and sell to each of the Purchasers the Shares to be purchased by it at the
Closing is subject to the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of
such Purchaser shall be true and correct on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date (it being
understood and agreed by the Company that, in the case of any representation and
warranty of each Purchaser contained herein which is not hereinabove qualified
by application thereto of a materiality standard, such representation and
warranty need be true and correct only in all material respects in order to
satisfy as to such representation or warranty the condition precedent set forth
in the foregoing provisions of this Section 5.2(a)).
(b) The Registration Rights Agreement shall have been executed
and delivered by each Purchaser.
(c) The Purchasers shall have performed all obligations and
conditions herein required to be performed or observed by the Purchasers on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
(e) The sale of the Shares by the Company shall not be
prohibited by any law or governmental order or regulation. All necessary
consents, approvals, licenses, permits, orders and authorizations of, or
registrations, declarations and filings with, any governmental or administrative
agency or of any other person with respect to any of the transactions
contemplated hereby shall have been duly obtained or made and shall be in full
force and effect.
(f) Each of the Purchasers shall have executed and delivered
to the Company a Investor Questionnaire, in substantially the form attached
hereto as Exhibit B, pursuant to which each such Purchaser shall provide
information necessary to confirm each such Purchaser's status as an "accredited
investor" (as such term is defined in Rule 501 promulgated under the Securities
Act).
(g) Each of the other Purchasers shall have purchased, in
accordance with this Agreement, the number of shares of Common Stock set forth
opposite its name under the heading "Number of Shares to be Purchased."
(h) All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to the Company, and the
Company shall have received counterpart originals, or certified or other copies
of all documents, including without limitation records of corporate or other
proceedings, which it may have reasonably requested in connection therewith.
6. Transfer; Legends.
6.1. Securities Law Transfer Restrictions. No Purchaser shall
sell, assign, pledge, transfer or otherwise dispose or encumber any of the
Shares being purchased by it hereunder, except (i) pursuant to an effective
registration statement under the Securities Act or (ii) pursuant to an available
exemption from registration under the Securities Act and applicable state
securities laws and, if requested
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by the Company, upon delivery by such Purchaser of an opinion of counsel
reasonably satisfactory to the Company to the effect that the proposed transfer
is exempt from registration under the Securities Act and applicable state
securities laws. Any transfer or purported transfer of the Shares in violation
of this Section 6.1 shall be voidable by the Company. The Company shall not
register any transfer of the Shares in violation of this Section 6.1. The
Company may, and may instruct any transfer agent for the Company, to place such
stop transfer orders as may be required on the transfer books of the Company in
order to ensure compliance with the provisions of this Section 6.1.
6.2. Legends. Each certificate requesting any of the Shares
shall be endorsed with a legend in substantially the form set forth below, and
each Purchaser covenants that, except to the extent such restrictions are waived
by the Company, it shall not transfer the shares represented by any such
certificate without complying with the restrictions on transfer described in
this Agreement and the legends endorsed on such certificate:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD,
ASSIGNED, PLEDGED TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM REGISTRATION UNDER SAID ACT AND, IF REQUESTED
BY THE COMPANY, UPON DELIVERY OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT THE PROPOSED TRANSFER IS EXEMPT FROM
SAID ACT.
7. Termination; Liabilities Consequent Thereon. This Agreement may be
terminated and the transactions contemplated hereunder abandoned at any time
prior to the Closing only as follows:
(a) by the Purchasers, upon notice to the Company if the
conditions set forth in Section 5.1 shall not have been satisfied on or prior to
July __, 2000; or
(b) by the Company, upon notice to the Purchasers if the
conditions set forth in Section 5.2 shall not have been satisfied on or prior to
July __, 2000; or
(c) at any time by mutual agreement of the Company and the
Purchasers; or
(d) by the Purchasers, if there has been any breach of any
representation or warranty or any material breach of any covenant of the Company
contained herein and the same has not been cured within 15 days after notice
thereof, (it being understood and agreed by each Purchaser that, in the case of
any representation or warranty of the Company contained herein which is not
hereinabove qualified by application thereto of a materiality standard, such
representation or warranty will be deemed to have been breached for purposes of
this Section 7.1(d) only if such representation or warranty was not true and
correct in all material respects at the time such representation or warranty was
made by the Company); or
(e) by the Company, if there has been any breach of any
representation, warranty or any material breach of any covenant of any Purchaser
contained herein and the same has not been cured within 15 days after notice
thereof (it being understood and agreed by the Company that, in the case of any
representation and warranty of the Purchaser contained herein which is not
hereinabove qualified by application thereto of a materiality standard, such
representation or warranty will be deemed to have been breached for purposes of
this Section 7.1(e) only if such representation or warranty was not true and
correct in all material respects at the time such representation or warranty was
made by such Purchaser).
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Any termination pursuant to this Section 7 shall be without liability
on the part of any party, unless such termination is the result of a material
breach of this Agreement by a party to this Agreement in which case such
breaching party shall remain liable for such breach notwithstanding any
termination of this Agreement.
8. Miscellaneous Provisions.
8.1 Public Statements or Releases. None of the parties to this
Agreement shall make, issue, or release any announcement, whether to the public
generally, or to any of its suppliers or customers, with respect to this
Agreement or the transactions provided for herein, or make any statement or
acknowledgment of the existence of, or reveal the status of, this Agreement or
the transactions provided for herein, without the prior consent of the other
parties, which shall not be unreasonably withheld or delayed, provided, that
nothing in this Section 8.1 shall prevent any of the parties hereto from making
such public announcements as it may consider necessary in order to satisfy its
legal obligations, but to the extent not inconsistent with such obligations, it
shall provide the other parties with an opportunity to review and comment on any
proposed public announcement before it is made.
8.2 Further Assurances. Each party agrees to cooperate fully
with the other party and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be reasonably
requested by the other party to better evidence and reflect the transactions
described herein and contemplated hereby, and to carry into effect the intents
and purposes of this Agreement.
8.3 Notification of Effectiveness of Registration Statement.
The Company covenants that it will provide notice to the Purchasers that the
Company's registration statement on Form S-3 registering the shares sold
hereunder to SWIB has been declared effective by the SEC.
8.4 Rights Cumulative. Each and all of the various rights,
powers and remedies of the parties shall be considered to be cumulative with and
in addition to any other rights, powers and remedies which such parties may have
at law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
8.5 Pronouns. All pronouns or any variation thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
8.6 Notices.
(a) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be sent by postage prepaid first class mail, courier or telecopy
or delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(b) All correspondence to the Company shall be addressed as
follows:
La Jolla Pharmaceutical Company
6455 Nancy Ridge Drive
San Diego, California 92121
Attention: Steven B. Engle
Telecopier: (858) 452-6893
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with a copy to:
Gibson, Dunn & Crutcher LLP
4 Park Plaza
Irvine, California 92614
Attention: Leonard J. McGill
Telecopier: (949) 451-4220
(c) All correspondence to any Purchaser shall be sent to such
Purchaser at the address set forth in Exhibit A.
(d) Any entity may change the address to which correspondence
to it is to be addressed by notification as provided for herein.
8.7 Captions. The captions and paragraph headings of this
Agreement are solely for the convenience of reference and shall not affect its
interpretation.
8.8 Severability. Should any part or provision of this
Agreement be held unenforceable or in conflict with the applicable laws or
regulations of any jurisdiction, the invalid or unenforceable part or provisions
shall be replaced with a provision which accomplishes, to the extent possible,
the original business purpose of such part or provision in a valid and
enforceable manner, and the remainder of this Agreement shall remain binding
upon the parties hereto.
8.9 Governing Law; Injunctive Relief.
(a) This Agreement shall be governed by and construed in
accordance with the internal and substantive laws of the State of California and
without regard to any conflicts of laws concepts that would apply the
substantive law of some other jurisdiction.
(b) Each of the parties hereto acknowledges and agrees that
damages will not be an adequate remedy for any material breach or violation of
this Agreement if such material breach or violation would cause immediate and
irreparable harm (an "Irreparable Breach"). Accordingly, in the event of a
threatened or ongoing Irreparable Breach, each party hereto shall be entitled to
seek, in any state or federal court in the State of California, equitable relief
of a kind appropriate in light of the nature of the ongoing or threatened
Irreparable Breach, which relief may include, without limitation, specific
performance or injunctive relief; provided, however, that if the party bringing
such action is unsuccessful in obtaining the relief sought, the moving party
shall pay the non-moving party's costs, including actual attorney's fees,
incurred in connection with defending such action. Such remedies shall not be
the parties' exclusive remedies, but shall be in addition to all other remedies
provided in this Agreement.
8.10 Waiver. No waiver of any term, provision or condition of
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or be construed as, a further or continuing waiver of any
such term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
8.11 Expenses. Each party will bear its own costs and expenses
in connection with this Agreement.
8.12 Assignment. The rights and obligations of the parties
hereto shall inure to the benefit of and shall be binding upon the authorized
successors and permitted assigns of each party. Neither party may assign its
rights or obligations under this Agreement or designate another person (i) to
perform all or part of its obligations under this Agreement or (ii) to have all
or part of its rights and benefits under this Agreement, in each case without
the prior written consent of the other party. In the
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event of any assignment in accordance with the terms of this Agreement, the
assignee shall specifically assume and be bound by the provisions of the
Agreement by executing and agreeing to an assumption agreement reasonably
acceptable to the other party.
8.13 Survival. The respective representations and warranties
given by the parties hereto, and the other covenants and agreements contained
herein, shall survive the Closing Date and the consummation of the transactions
contemplated herein for a period of two years, without regard to any
investigation made by any party.
8.14 Entire Agreement. This Agreement along with the exhibits
hereto incorporated herewith constitute the entire agreement between the parties
hereto respecting the subject matter hereof and supersedes all prior agreements,
negotiations, understandings, representations and statements respecting the
subject matter hereof, whether written or oral. No modification, alteration,
waiver or change in any of the terms of this Agreement shall be valid or binding
upon the parties hereto unless made in writing and duly executed by the Company
and the Majority Purchasers.
[The remainder of this page has been intentionally left blank;
signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement under seal as of the day and year first above written.
LA JOLLA PHARMACEUTICAL COMPANY
By:
--------------------------------------------
Name:
-----------------------------------
Title:
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THE PURCHASER'S SIGNATURE TO THE INVESTOR QUESTIONNAIRE DATED EVEN DATE HEREWITH
SHALL CONSTITUTE THE PURCHASER'S SIGNATURE TO THIS STOCK PURCHASE AGREEMENT.
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Exhibit A
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Purchaser Number of Shares
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Exhibit C
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
July ___, 2000 by and among (i) La Jolla Pharmaceutical Company, a Delaware
corporation (the "Company"), (ii) each person listed on Exhibit A attached
hereto (collectively, the "Initial Investors" and each individually, an "Initial
Investor"), and (iii) each person or entity that subsequently becomes a party to
this Agreement pursuant to, and in accordance with, the provisions of Section 12
hereof (each an "Investor Permitted Transferee" and collectively, the "Investor
Permitted Transferees").
WHEREAS, the Company has agreed to issue and sell to the Initial
Investors, and the Initial Investors have agreed to purchase from the Company,
______________ shares (the "Purchased Shares") of the Company's common stock,
$0.01 par value per share (the "Common Stock"), all upon the terms and
conditions set forth in that certain Stock Purchase Agreement, dated of even
date herewith, between the Company and the Initial Investors (the "Stock
Purchase Agreement"); and
WHEREAS, the terms of the Stock Purchase Agreement provide that it
shall be a condition precedent to the closing of the transactions thereunder,
for the Company and the Initial Investors to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. Definitions. The following terms shall have the meanings provided
therefor below or elsewhere in this Agreement as described below:
"Board" shall mean the board of directors of the Company.
"Closing" shall have the meaning ascribed to such term in the Stock
Purchase Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated thereunder.
"Investors" shall mean, collectively, the Initial Investors and the
Investor Permitted Transferees; provided, however, that the term "Investors"
shall not include any of the Initial Investors or any of the Investor Permitted
Transferees that ceases to own or hold any Purchased Shares.
"Majority Holders" shall mean, at the relevant time of reference
thereto, those Investors holding and/or having the right to acquire, as the case
may be, more than fifty percent (50%) of the Registrable Shares held by all of
the Investors.
"Qualifying Holder" shall have the meaning ascribed thereto in Section
12 hereof.
"Registrable Shares" shall mean the Purchased Shares, provided,
however, such term shall not, after the Mandatory Registration Termination Date,
include any of the Purchased Shares that become or have become eligible for
resale pursuant to Rule 144 or pursuant to Regulation S.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act and
any successor or substitute rule, law or provision.
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"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
all of the rules and regulations promulgated thereunder.
2. Effectiveness; Termination. This Agreement shall become effective
and legally binding only if the Closing occurs. This Agreement shall terminate
and be of no further force or effect, automatically and without any action being
required of any party hereto, upon the termination of the Stock Purchase
Agreement pursuant to Section 8 thereof.
3. Mandatory Registration.
(a) Within ten (10) business days after the Closing, the
Company will prepare and file with the SEC a registration statement on Form S-3
for the purpose of registering under the Securities Act all of the Registrable
Shares for resale by, and for the account of, the Investors as selling
stockholders thereunder (the "Registration Statement"). The Registration
Statement shall permit the Investors to offer and sell, on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, any or all of
the Registrable Shares. The Company agrees to use reasonable efforts to cause
the Registration Statement to become effective as soon as practicable. The
Company shall be required to keep the Registration Statement effective until
such date that is the earlier of (i) the date when all of the Registrable Shares
registered thereunder shall have been sold or (ii) the second anniversary of the
Closing, subject to extension as set forth below (such date is referred to
herein as the "Mandatory Registration Termination Date"). Thereafter, the
Company shall be entitled to withdraw the Registration Statement and the
Investors shall have no further right to offer or sell any of the Registrable
Shares pursuant to the Registration Statement (or any prospectus relating
thereto). In the event the right of the selling Investors to use the
Registration Statement (and the prospectus relating thereto) is delayed or
suspended pursuant to Sections 5(c) or 11 hereof, the Company shall be required
to extend the Mandatory Registration Termination Date beyond the second
anniversary of the Closing by the same number of days as such delay or
Suspension Period (as defined in Section 11 hereof).
(b) The offer and sale of the Registrable Shares pursuant to
the Registration Statement shall not be underwritten.
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4. "Piggyback" Registration Rights.
(a) If, at any time after the Mandatory Registration
Termination Date, the Company proposes to register any of its Common Stock under
the Securities Act, whether as a result of a primary or secondary offering of
Common Stock or pursuant to registration rights granted to holders of other
securities of the Company (but excluding in all cases any registrations to be
effected on Forms S-4 or S-8 or other applicable successor Forms), the Company
shall, each such time, give to the Investors holding Registrable Shares written
notice of its intent to do so. Upon the written request of any such Investor
given within 20 days after the giving of any such notice by the Company, the
Company shall use reasonable efforts to cause to be included in such
registration the Registrable Shares of such selling Investor, to the extent
requested to be registered; provided that (i) the number of Registrable Shares
proposed to be sold by such selling Investor is equal to at least seventy-five
percent (75%) of the total number of Registrable Shares then held by such
participating selling Investor, (ii) such selling Investor agrees to sell those
of its Registrable Shares to be included in such registration in the same manner
and on the same terms and conditions as the other shares of Common Stock which
the Company proposes to register, and (iii) if the registration is to include
shares of Common Stock to be sold for the account of the Company or any party
exercising demand registration rights pursuant to any other agreement with the
Company, the proposed managing underwriter does not advise the Company that in
its opinion the inclusion of such selling Investor's Registrable Shares (without
any reduction in the number of shares to be sold for the account of the Company
or such party exercising demand registration rights) is likely to affect
materially and adversely the success of the offering or the price that would be
received for any shares of Common Stock offered, in which case the rights of
such selling Investor shall be as provided in Section 4(b) hereof.
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(b) If a registration pursuant to Section 4(a) hereof involves
an underwritten offering and the managing underwriter shall advise the Company
in writing that, in its opinion, the number of shares of Common Stock requested
by the Investors to be included in such registration is likely to affect
materially and adversely the success of the offering or the price that would be
received for any shares of Common Stock offered in such offering, then,
notwithstanding anything in Section 4(a) to the contrary, the Company shall only
be required to include in such registration, to the extent of the number of
shares of Common Stock which the Company is so advised can be sold in such
offering, (i) first, the number of shares of Common Stock proposed to be
included in such registration for the account of the Company and/or any
stockholders of the Company (other than the Investors) that have exercised
demand registration rights, in accordance with the priorities, if any, then
existing among the Company and/or such stockholders of the Company with
registration rights (other than the Investors), and (ii) second, the shares of
Common Stock requested to be included in such registration by all other
stockholders of the Company who have piggyback registration rights (including,
without limitation, the Investors), pro rata among such other stockholders
(including, without limitation, the Investors) on the basis of the number of
shares of Common Stock that each of them requested to be included in such
registration.
(c) In connection with any offering involving an underwriting
of shares, the Company shall not be required under Section 4 hereof or otherwise
to include the Registrable Shares of any Investor therein unless such Investor
accepts and agrees to the terms of the underwriting, which shall be reasonable
and customary, as agreed upon between the Company and the underwriters selected
by the Company.
5. Obligations of the Company. In connection with the Company's
obligation under Section 3 and 4 hereof to file the Registration Statement with
the SEC and to use its best efforts to cause the Registration Statement to
become effective as soon as practicable, the Company shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all
Registrable Shares covered by the Registration Statement;
(b) Furnish to the selling Investors such number of copies of
a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents
(including, without limitation, prospectus amendments and supplements
as are prepared by the Company in accordance with Section 5(a) above)
as the selling Investors may reasonably request in order to facilitate
the disposition of such selling Investors' Registrable Shares;
(c) Notify the selling Investors, at any time when a
prospectus relating to the Registration Statement is required to be
delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in or relating to the
Registration Statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not
misleading; and, thereafter, the Company will promptly prepare (and,
when completed, give notice to each selling Investor) a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading; provided that
upon such notification by the Company, the selling Investors will not
offer or sell Registrable Shares until the Company has notified the
selling Investors that it has prepared a supplement or amendment to
such prospectus and delivered copies of such supplement or amendment to
the selling Investors (it being understood and agreed by the Company
that the foregoing proviso shall in no way diminish or otherwise impair
the Company's obligation to promptly prepare a
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prospectus amendment or supplement as above provided in this Section
5(c) and deliver copies of same as above provided in Section 5(b)
hereof); and
(e) Use commercially reasonable efforts to register and
qualify the Registrable Shares covered by the Registration Statement
under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably appropriate in the opinion of the Company and the
managing underwriters, if any, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify
to do business or to file a general consent to service of process in
any such states or jurisdictions, and provided further that
(notwithstanding anything in this Agreement to the contrary with
respect to the bearing of expenses) if any jurisdiction in which any of
such Registrable Shares shall be qualified shall require that expenses
incurred in connection with the qualification therein of any such
Registrable Shares be borne by the selling Investors, then the selling
Investors shall, to the extent required by such jurisdiction, pay their
pro rata share of such qualification expenses.
6. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Investors shall furnish to the Company such information regarding
them and the securities held by them as the Company shall reasonably request and
as shall be required in order to effect any registration by the Company pursuant
to this Agreement.
7. Expenses of Registration. All expenses incurred in connection with
the registration of the Registrable Shares pursuant to this Agreement (excluding
underwriting, brokerage and other selling commissions and discounts), including
without limitation all registration and qualification and filing fees, printing,
and fees and disbursements of counsel for the Company, shall be borne by the
Company.
8. Delay of Registration. The Investors shall not take any action to
restrain, enjoin or otherwise delay any registration as the result of any
controversy which might arise with respect to the interpretation or
implementation of this Agreement.
9. Indemnification.
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each selling Investor, any investment banking firm acting as
an underwriter for the selling Investors, any broker/dealer acting on behalf of
any selling Investors and each officer and director of such selling Investor,
such underwriter, such broker/dealer and each person, if any, who controls such
selling Investor, such underwriter or broker/dealer within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading; and will reimburse such
selling Investor, such underwriter, broker/dealer or such officer, director or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 9(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, damage,
liability or action to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission made in connection with
the Registration Statement, any preliminary prospectus or final prospectus
relating thereto or any amendments or supplements to the Registration Statement
or any such preliminary prospectus or final prospectus, in
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reliance upon and in conformity with written information furnished expressly for
use in connection with the Registration Statement or any such preliminary
prospectus or final prospectus by the selling Investors, any underwriter for
them or controlling person with respect to them.
(b) To the extent permitted by law, each selling Investor will
severally and not jointly indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any investment banking firm acting as underwriter for the Company or the
selling Investors, or any broker/dealer acting on behalf of the Company or any
selling Investors, and all other selling Investors against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
controlling person, underwriter, or broker/dealer or such other selling Investor
may become subject to, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement or any preliminary prospectus or final
prospectus, relating thereto or in any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent and only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, in reliance upon and in conformity with written information
furnished by the selling Investor expressly for use in connection with the
Registration Statement, or any preliminary prospectus or final prospectus; and
such selling Investor will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter, broker/dealer or other selling Investor in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that the liability of each selling Investor hereunder shall
be limited to the proceeds (net of underwriting discounts and commissions, if
any) received by such selling Investor from the sale of Registrable Shares
covered by the Registration Statement, and provided, further, however, that the
indemnity agreement contained in this Section 9(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of those selling Investor(s) against
which the request for indemnity is being made (which consent shall not be
unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in and, to the extent the indemnifying party desires, jointly with
any other indemnifying party similarly noticed, to assume at its expense the
defense thereof with counsel mutually satisfactory to the indemnifying parties
with the consent of the indemnified party which consent will not be unreasonably
withheld, conditioned or delayed. In the event that the indemnifying party
assumes any such defense, the indemnified party may participate in such defense
with its own counsel and at its own expense, provided, however, that the counsel
for the indemnifying party shall act as lead counsel in all matters pertaining
to such defense or settlement of such claim and the indemnifying party shall
only pay for such indemnified party's expenses for the period prior to the date
of its participation on such defense. The failure to notify an indemnifying
party promptly of the commencement of any such action, if prejudicial to his
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 9, but the omission so to
notify the indemnifying party will not relieve him of any liability which he may
have to any indemnified party otherwise other than under this Section 9.
(d) Notwithstanding anything to the contrary herein, the
indemnifying party shall not be entitled to settle any claim, suit or proceeding
unless in connection with such settlement the indemnified party receives an
unconditional release with respect to the subject matter of such claim, suit or
proceeding and such settlement does not contain any admission of fault by the
indemnified party.
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10. Reports under the Exchange Act. With a view to making available to
the Investors the benefits of Rule 144 and any other rule or regulation of the
SEC that may at any time permit the Investors to sell the Purchased Shares to
the public without registration, the Company agrees to use commercially
reasonable efforts: (i) to make and keep public information available, as those
terms are understood and defined in the General Instructions to Form S-3, or any
successor or substitute form, and in Rule 144, (ii) to file with the SEC in a
timely manner all reports and other documents required to be filed by an issuer
of securities registered under the Securities Act or the Exchange Act, (iii) as
long as any Investor owns any Purchased Shares, to furnish in writing upon such
Investor's request a written statement by the Company that it has complied with
the reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, and to furnish to such Investor a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed by the Company as may be reasonably requested in availing such Investor of
any rule or regulation of the SEC permitting the selling of any such Purchased
Shares without registration and (iv) undertake any additional actions reasonably
necessary to maintain the availability of the Registration Statement or the use
of Rule 144.
11. Deferral and Lock-up. Notwithstanding anything in this Agreement to
the contrary, if the Company shall furnish to the selling Investors a
certificate signed by the President or Chief Executive Officer of the Company
stating that the Board of Directors of the Company has made the good faith
determination (i) that continued use by the selling Investors of the
Registration Statement for purposes of effecting offers or sales of Registrable
Shares pursuant thereto would require, under the Securities Act, premature
disclosure in the Registration Statement (or the prospectus relating thereto) of
material, nonpublic information concerning the Company, its business or
prospects or any proposed material transaction involving the Company, (ii) that
such premature disclosure would be materially adverse to the Company, its
business or prospects or any such proposed material transaction or would make
the successful consummation by the Company of any such material transaction
significantly less likely and (iii) that it is therefore essential to suspend
the use by the Investors of such Registration Statement (and the prospectus
relating thereto) for purposes of effecting offers or sales of Registrable
Shares pursuant thereto, then the right of the selling Investors to use the
Registration Statement (and the prospectus relating thereto) for purposes of
effecting offers or sales of Registrable Shares pursuant thereto shall be
suspended for not more than two 30-day periods in a twelve month period (the
"Suspension Period(s)") after delivery by the Company of the certificate
referred to above in this Section 11. During the Suspension Period, none of the
Investors shall offer or sell any Registrable Shares pursuant to or in reliance
upon the Registration Statement (or the prospectus relating thereto).
12. Transfer of Registration Rights. None of the rights of any Investor
under this Agreement shall be transferred or assigned to any person unless (i)
such person is a Qualifying Holder (as defined below), and (ii) such person
agrees to become a party to, and bound by, all of the terms and conditions of,
this Agreement by duly executing and delivering to the Company an Instrument of
Adherence in the form attached as Exhibit B hereto. For purposes of this Section
12, the term "Qualifying Holder" shall mean, with respect to any Investor, (i)
any partner thereof, (ii) any corporation, partnership controlling, controlled
by, or under common control with, such Investor or any partner thereof, or (iii)
any other direct transferee from such Investor of at least 50% of those
Registrable Shares held or that may be acquired by such Investor. None of the
rights of any Investor under this Agreement shall be transferred or assigned to
any Person (including, without limitation, a Qualifying Holder) that acquires
Registrable Shares in the event that and to the extent that such Person is
eligible to resell such Registrable Shares pursuant to Rule 144(k) of the
Securities Act or may otherwise resell such Registrable Shares pursuant to an
exemption from the registration provisions of the Securities Act.
13. Entire Agreement. This Agreement and the exhibits attached hereto
and incorporated herewith constitute and contains the entire agreement and
understanding of the parties with respect to the subject matter hereof, and it
also supersedes any and all prior negotiations, correspondence, agreements or
understandings with respect to the subject matter hereof.
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14. Miscellaneous.
This Agreement may not be amended, modified or terminated, and no
rights or provisions may be waived, except with the written consent of the
Majority Holders and the Company.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of California, and shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors or assigns, provided that the terms and conditions
of Section 12 hereof are satisfied. This Agreement shall also be binding upon
and inure to the benefit of any transferee of any of the Purchased Shares
provided that the terms and conditions of Section 12 hereof are satisfied.
Notwithstanding anything in this Agreement to the contrary, if at any time any
Investor shall cease to own any Purchased Shares, all of such Investor's rights
under this Agreement shall immediately terminate.
(i) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be sent by courier (overnight or same day) or telecopy or
delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(ii) All correspondence to the Company shall be
addressed as follows:
La Jolla Pharmaceutical Company
6455 Nancy Ridge Drive
San Diego, CA 92121
Attention: President
Telecopier: (858) 626-2851
with a copy to:
Gibson, Dunn & Crutcher LLP
4 Park Plaza
Irvine, California 92614
Attention: Leonard J. McGill
Telecopier: (949) 451-4220
(iii) All correspondence to any Investor shall be
sent to such Purchaser at the address set forth in Exhibit A.
Any entity may change the address to which correspondence to it is to
be addressed by notification as provided for herein.
The parties acknowledge and agree that in the event of any breach of
this Agreement, remedies at law may be inadequate, and each of the parties
hereto shall be entitled to seek specific performance of the obligations of the
other parties hereto and such appropriate injunctive relief as may be granted by
a court of competent jurisdiction.
This Agreement may be executed in a number of counterparts, an of which
together shall for all purposes constitute one Agreement, binding on all the
parties hereto notwithstanding that all such parties have not signed the same
counterpart.
[The remainder of this page has been intentionally left
blank; signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of the date and year first above written.
LA JOLLA PHARMACEUTICAL COMPANY
By:
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Name:
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Title:
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THE INITIAL INVESTOR'S SIGNATURE TO THE INVESTOR QUESTIONNAIRE DATED EVEN DATE
HEREWITH SHALL CONSTITUTE THE INITIAL INVESTOR'S SIGNATURE TO THIS REGISTRATION
RIGHTS AGREEMENT.
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EXHIBIT A
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Purchaser Number of Shares
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Exhibit B
Instrument of Adherence
Reference is hereby made to that certain Registration Rights Agreement,
dated as of July ___, 2000, among La Jolla Pharmaceutical Company, a Delaware
corporation (the "Company"), the Initial Investors and the Investor Permitted
Transferees, as amended and in effect from time to time (the "Registration
Rights Agreement"). Capitalized terms used herein without definition shall have
the respective meanings ascribed thereto in the Registration Rights Agreement.
The undersigned, in order to become the owner or holder of ___________
shares of common stock, par value $0.01 per share (the "Common Stock"), of the
Company, hereby agrees that, from and after the date hereof, the undersigned has
become a party to the Registration Rights Agreement in the capacity of an
Investor Permitted Transferee, and is entitled to all of the benefits under, and
is subject to all of the obligations, restrictions and limitations set forth in,
the Registration Rights Agreement that are applicable to Investor Permitted
Transferees. This Instrument of Adherence shall take effect and shall become a
part of the Registration Rights Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the State of California.
Signature:
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Name:
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Title:
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Accepted:
La Jolla Pharmaceutical Company
By:
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Name:
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Title:
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Date:
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