Quarterly report pursuant to Section 13 or 15(d)

Acquisition of CyDex

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Acquisition of CyDex
3 Months Ended
Mar. 31, 2012
Acquisition of CyDex [Abstract]  
Acquisition of CyDex

2. Acquisition of CyDex

On January 24, 2011, the Company acquired CyDex Pharmaceuticals, Inc., a specialty pharmaceutical company developing products and licensing its CAPTISOL® technology. CAPTISOL is currently incorporated in five FDA-approved medications and marketed by three of CyDex’s licensees: Pfizer, Bristol-Myers Squibb and Baxter International. In addition, CyDex is supporting drug development efforts with more than 40 companies worldwide.

Under the terms of the agreement, the Company paid $32.0 million to the CyDex shareholders and issued a series of Contingent Value Rights (“CVR’s”). Additionally, the Company assumed contingent liabilities for future milestones due to license holders. The Company paid $4.3 million in January 2012 and may be required to pay up to an additional $11.5 million upon achievement of certain clinical and regulatory milestones to the CyDex CVR holders and former license holders. In addition, the Company will pay CyDex shareholders, for each respective year from 2011 through 2016, 20% of all CyDex-related revenue, but only to the extent that and beginning only when CyDex-related revenue for such year exceeds $15.0 million; plus an additional 10% of all CyDex-related revenue recognized during such year, but only to the extent that and beginning only when aggregate CyDex-related revenue for such year exceeds $35.0 million. The Company paid $0.3 million to the CyDex shareholders in March 2012 for 20% of all 2011 CyDex-related revenue in excess of $15 million.

The CyDex Contingent Value Rights Agreement (“CVR”) requires the Company to, in the event of a default, deliver to an escrow agent the future cash payments described above, and such amounts would then be delivered by the escrow agent to the CyDex shareholders if, as and when they would have by the CyDex CVR Agreement been required to be delivered to the CyDex shareholders by the Company. “Default” includes the following, subject to certain cure rights: (a) the Company fails to pay to the Shareholders’ Account any amount as and when required under the CyDex CVR Agreement, (b) at any time the Company is obligated for more than $35.0 million of financial indebtedness (other than financial indebtedness which is expressly subordinated to all obligations of Ligand under the CyDex CVR Agreement pursuant to a written subordination agreement signed by and reasonably acceptable to the Shareholders’ Representative), (c) at any time after March 15, 2011 the Company’s cash, cash equivalents and short-term investments is less than $10.0 million, or (d) the Company commits any material breach of the CyDex CVR Agreement.

Ligand is required by the CyDex CVR Agreement to dedicate at least five experienced full-time employee equivalents per year to the acquired business and to invest at least $1.5 million per year, inclusive of such employee expenses, in the acquired business, through 2015. As of March 31, 2012, the Company estimates it has spent approximately $1.2 million for its commitment for the year ending December 31, 2012.

At the closing of the acquisition, the Company recorded a $17.6 million contingent liability for amounts potentially due to holders of the CyDex CVRs and former license holders. The initial fair value of the liability was determined using a discounted cash flow analysis incorporating the estimated future cash flows from potential milestones and revenue sharing. These cash flows were then discounted to present value using a discount rate of 21.6%. The liability will be periodically assessed based on events and circumstances related to the underlying milestones, and the change in fair value will be recorded in the Company’s consolidated statements of operations. The carrying amount of the liability may fluctuate significantly and actual amounts paid under the agreements may be materially different than the carrying amount of the liability. The fair value of the liability at March 31, 2012 was $11.5 million.

 

The components of the purchase price allocation for CyDex are as follows (in thousands):

 

         
    (Restated)  

Purchase Consideration:

       

Cash paid to CyDex shareholders

  $ 31,572  

Estimated fair value of contingent consideration

    13,285  

Cash payable to CyDex shareholders

    4,300  
   

 

 

 

Total purchase consideration

  $ 49,157  
   

 

 

 
   

Allocation of Purchase Price:

       

Cash

  $ 85  

Accounts receivable

    1,202  

Inventory

    2,414  

In-process research and development

    3,200  

Intangible assets with definite lives

    47,469  

Goodwill

    11,538  

Other assets

    1,311  

Liabilities assumed

    (18,062
   

 

 

 
    $ 49,157  
   

 

 

 

The acquired identified intangible assets with definite lives from the acquisition with CyDex are as follows:

 

         
    (Restated)  

Acquired Intangible Assets

       

(in thousands)

       

Complete technology

  $ 15,227  

Trademark and trade name

    2,642  

Customer relationships

    29,600  
   

 

 

 
    $ 47,469  
   

 

 

 

The weighted-average amortization period for the identified intangible assets with definite lives is 20 years.

The Company has allocated $3.2 million of the purchase price of CyDex to acquired In-Process Research and Development (IPR&D). This amount represents the estimated fair value of CyDex’s two main proprietary products that have not yet reached technological feasibility and do not have future alternative use as of the date of the merger. The valuation was based on a probability-weighted present value of the expected upfront and milestone payments based on a recently signed letter of intent and term sheet. The probability of success takes into account the stages of completion and the risks surrounding successful development and commercialization of the underlying product candidates. These cash flows were then discounted to present value using a discount rate of 21.5%.

The Company has allocated $47.5 million to identified intangible assets with definite lives as follows: complete technology $15.2 million, trademark and trade name $2.6 million and customer relationships $29.6 million. The valuation of the complete technology, or CyDex’s CAPTISOL technology, was based on a derivative of the discounted cash flow method that estimated the present value of a hypothetical royalty stream derived via the licensing of similar technology. These projected cash flows were then discounted to present value using a discount rate of 20.5%. The valuation of the trademark and trade name was based on the Relief from Royalty method using royalty rates paid in third-party licensing agreements involving similar trade names. These projected cash flows were then discounted to present value using a discount rate of 20.5%. The valuation of the customer relationships was based on a discounted cash flow analysis incorporating the estimated future cash flows from these relationships during their assumed life of 20 years. These cash flows were then discounted to present value using a discount rate of 21.5%.

 

Had the merger with CyDex been completed as of the beginning of 2011, the Company’s pro forma results for the three months ended March 31, 2011 would have been as follows:

 

         
(in thousands, except per share data)   2011  
    (Restated)  

Revenue

  $ 4,085  

(Loss) from operations

    (756

Net income

    10,216  

Basic and diluted earnings per share:

       

Continuing operations

  $ 0.52  

Discontinued operations

  $ 0.00  

Net income

  $ 0.52  

Basic and diluted weighted average shares

    19,623  

The primary adjustments relate to interest expense on long-term debt, the loss of interest income due to the timing of transaction related payments and amortization of intangible assets. The above pro forma information was determined based on historical results adjusted for the purchase price allocation and estimated related changes in income associated with the merger of CyDex.