Exhibit 10.4
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of June 4, 2004,
is made and entered into by and between Elan Pharmaceutical Investments II,
Ltd., a Bermuda exempted company limited by shares (the "Seller"), and Isis
Pharmaceuticals, Inc., a Delaware corporation (the "Purchaser").
WHEREAS, the Seller is the owner of certain securities identified on Schedule A
(the "Securities");
WHEREAS, the Seller desires to sell to the Purchaser and the Purchaser desires
to purchase from the Seller the Securities.
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, the Purchaser and the Seller agree as follows:
1.
DEFINITIONS.
AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE THE
MEANINGS SET FORTH BELOW:
"Securities" has the meaning set forth in the recitals hereto.
"Purchase Price" means $500.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as amended, and
the rules and regulations in effect from time to time thereunder.
2.
PURCHASE AND SALE OF THE SECURITIES; CLOSING.
THE PURCHASER AND THE SELLER
AGREE AS FOLLOWS:
(A)
PURCHASE AND SALE OF THE SECURITIES.
ON
THE BASIS OF THE REPRESENTATIONS AND WARRANTIES, AND SUBJECT TO THE TERMS AND
CONDITIONS, SET FORTH HEREIN, (I) THE SELLER AGREES TO SELL TO THE PURCHASER THE
SECURITIES SET FORTH ON SCHEDULE A, AND (II) THE PURCHASER AGREES TO PURCHASE
FROM THE SELLER THE SECURITIES SET FORTH ON SCHEDULE A.
(B)
CLOSING.
THE CLOSING (THE "CLOSING") OF THE
PURCHASE AND SALE OF THE SECURITIES SHALL TAKE PLACE AT 10:00 A.M. ON JUNE 4,
2004 (THE "CLOSING DATE") AT THE OFFICES OF CAHILL GORDON & REINDEL LLP, 80 PINE
STREET, NEW YORK, NEW YORK, OR AT SUCH OTHER PLACE AS THE PARTIES HERETO SHALL
MUTUALLY AGREE.
AT THE CLOSING, (I) THE SELLER SHALL DELIVER TO THE PURCHASER
CERTIFICATES REPRESENTING THE SECURITIES AND SUCH OTHER APPROPRIATE INSTRUMENTS
OF TRANSFER AND ASSIGNMENT (INCLUDING BLANK STOCK POWERS), AS THE PURCHASER
SHALL REASONABLY REQUEST PRIOR TO THE CLOSING DATE, IN ORDER TO
VEST IN THE PURCHASER, AS OF THE CLOSING DATE, ALL OF THE SELLER'S RIGHT, TITLE
AND INTEREST IN, TO AND UNDER THE SECURITIES, AND (II) THE PURCHASER SHALL
DELIVER OR CAUSE TO BE DELIVERED TO THE SELLER, OR ITS AGENT, THE PURCHASE PRICE
IN IMMEDIATELY AVAILABLE FUNDS.
3.
CONDITIONS TO THE PURCHASER'S OBLIGATION.
THE OBLIGATION OF THE PURCHASER
TO PURCHASE AND PAY FOR THE SECURITIES IS SUBJECT TO THE SATISFACTION (OR WAIVER
BY PURCHASER) OF THE FOLLOWING CONDITIONS AS OF THE CLOSING DATE:
(A)
THE REPRESENTATIONS AND WARRANTIES OF THE
SELLER MADE IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL RESPECTS, AS OF
THE DATE HEREOF AND AS OF THE CLOSING DATE AS THOUGH THEN MADE; AND
(B)
THE SELLER SHALL HAVE DELIVERED TO THE
PURCHASER THE DOCUMENTS OR INSTRUMENTS CONTEMPLATED BY SECTION 2(B) ABOVE.
4.
CONDITIONS TO THE SELLER'S OBLIGATION.
THE OBLIGATION OF THE SELLER TO SELL
AND DELIVER THE SECURITIES