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EXHIBIT 99.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the 29th
day of December, 2000, by and between Atrix Laboratories, Inc., a Delaware
corporation having offices at 2579 Midpoint Drive, Fort Collins, CO 80525-4417
(the "Company"), and Sanofi-Synthelabo Inc., a Delaware corporation having
offices at 90 Park Avenue, New York, NY 10016 ("Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1. Sale and Issuance of Common Stock. Subject to the terms and
conditions of this Agreement, at the Closing (defined below)
Investor will purchase and the Company will sell and issue to
Investor 824,572 shares of Common Stock (the "Shares") for the
purchase price per share equal to $18.19125, which is one
hundred and ten percent (110%) of the average of the closing
prices reported by the NASDAQ National Market System for the
ten (10) consecutive trading days prior to, but not including,
the Closing Date, for an aggregate purchase price of Fourteen
Million Nine Hundred Ninety-Nine Thousand Nine Hundred and
Ninety-Five Dollars and Forty Cents ($14,999,995.40) (the
"Purchase Price").
1.2. Closing. The purchase and sale of the Common Stock shall take
place at the offices of the Company, 2579 Midpoint Drive, Fort
Collins, Colorado 80525, on the "Effective Date", as such term
is defined in the Collaboration, License and Supply Agreement
of even date herewith between the parties hereto (the
"Collaboration Agreement"), or at such other times and places
as the Company and Investor mutually agree upon in writing
(which times and places are designated as the "Closing"). At
the Closing, the Company shall deliver to its transfer agent,
American Stock Transfer & Trust Company, a letter, in the form
of Exhibit A, which letter directs American Stock Transfer &
Trust Company to deliver promptly to Investor a certificate
representing the Shares.
1.3. Purchase Price. At the Closing, the Purchase Price shall be
paid by Investor to the Company in immediately available funds
by wire transfer to a bank account designated by the Company
two (2) business days prior to the Closing Date or, if not so
designated, then by certified or official bank check payable
in immediately available funds to the order of the Company in
such amount.
1.4. Definition.
(a) The following terms, as used herein, have
the following meanings:
"Affiliate" shall have the meaning defined
in Rule 501 of Regulation D as promulgated
under the 1933 Act.
"Closing Date" means the date of the
Closing.
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"Common Stock" means the Common Stock, par
value $.001 per share of the Company.
"GAAP" means generally accepted accounting
principles in the United States.
"Material Adverse Effect" means a material
adverse effect on the condition (financial
or otherwise), business, assets, results of
operations of a corporation and its
subsidiaries taken as a whole.
"1934 Act" means the Securities Exchange Act
of 1934, as amended, and the rules and
regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933,
as amended, and the rules and regulations
promulgated thereunder.
"Person" shall mean an individual,
corporation, partnership, trust, business
trust, association, joint stock company,
joint venture, pool, syndicate, sole
proprietorship, and any other form of entity
not specifically listed herein.
"SEC" shall mean the U.S. Securities and
Exchange Commission.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to Investor that:
2.1. Organization, Good Standing and Qualification. The Company is
a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all
requisite corporate power and authority to carry on its
business as now conducted. The Company is duly qualified to
transact business and is in good standing in each jurisdiction
in which the failure to so qualify would have a Material
Adverse Effect.
2.2. Capitalization. The authorized capital of the Company consists
of:
(a) Preferred Stock. 5,000,000 shares of Preferred Stock,
of which (i) 200,000 shares have been designated
Series A Preferred Stock, par value $.001 per share,
none of which are issued and outstanding; (ii) 20,000
shares have been designated Series A Convertible
Exchangeable Preferred Stock, par value $.001 per
share, of which 12,015 shares were issued and
outstanding on December 29, 2000; and (iii) 4,780,000
shares are undesignated, none of which are issued and
outstanding.
(b) Common Stock. 25,000,000 shares of Common Stock, of
which 12,555,120 shares were issued and outstanding
on December 29, 2000.
2.3. Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary
for (i) its authorization, execution and
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delivery of the Agreement, (ii) the performance of all
obligations of the Company hereunder and (iii) the
authorization, issuance (or reservation for issuance) and
delivery of the Common Stock being sold hereunder, to the
extent that the foregoing requires performance on or prior to
the Closing, has been taken. This Agreement, assuming due
authorization, execution and delivery by Investor, constitutes
the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as such enforcement may be limited by applicable laws
relating to creditors' rights or principles of equity
affecting the availability of remedies.
2.4. Valid Issuance of Common Stock. The Shares, when issued
against payment thereof in accordance with this Agreement,
will be duly and validly issued, fully paid and nonassessable
and, based in part upon the representations of the Investor in
this Agreement, will be issued in compliance with all
applicable federal and state securities laws.
2.5. SEC Filings. The Company has registered its Common Stock
pursuant to Section 12 of the 1934 Act, and the Common Stock
is quoted on the Nasdaq National Market. The Company has filed
all 1934 Act reports for a period of at least twelve (12)
months immediately preceding the offer or sale of the Shares.
The Company's filings with the SEC complied as of their
respective filing dates, or in the case of registration
statements, their respective effective dates, as to form in
all material respects with all applicable requirements of the
1933 Act and the 1934 Act and the rules and regulations
promulgated thereunder. None of such filings, including,
without limitation, any exhibits, financial statements or
schedules included therein, at the time filed, or in the case
of registration statements, at their respective filing dates,
contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
audited financial statements of the Company included in the
Company's Annual Report on Form 10-K for the year ended
December 31, 1999 comply as to form in all material respects
with the published rules and regulations of the SEC with
respect thereto, and such audited financial statements (i)
were prepared from the books and records of the Company, (ii)
were prepared in accordance with GAAP applied on a consistent
basis (except as may be indicated therein or in the notes or
schedules thereto) and (iii) present fairly the financial
position of the Company as of the dates thereof and the
results of operations and cash flows for the periods then
ended. The unaudited financial statements included in the
Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 2000, June 30, 2000 and September 30,
2000 comply as to form in all material respects with the
published rules and regulations of the SEC with respect
thereto; and such unaudited financial statements (i) were
prepared from the books and records of the Company, (ii) were
prepared in accordance with GAAP, except as otherwise
permitted under the 1934 Act and the rules and regulations
thereunder, on a consistent basis (except as may be indicated
therein or in the notes or schedules thereto, and except that
they do not contain footnotes and other presentation items
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that may be required by GAAP) and (iii) present fairly the
financial position of the Company as of the dates thereof and
the results of operations and cash flows (or changes in
financial condition) for the periods then ended, subject to
normal year-end adjustments and any other adjustments
described therein or in the notes or schedules thereto.
2.6. Litigation. Except as disclosed in the Company's filings with
the SEC, there is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign,
now pending or, to the knowledge of the Company, threatened,
against or affecting the Company, or any of its properties,
which could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
2.7. No Default. Except as disclosed in the Company's filings with
the SEC, the Company is not in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust
or other material agreement or instrument to which it is a
party or by which it or its property may be bound and which is
filed as an exhibit to the Company's 1934 Act reports, except
for defaults that have not had and would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect.
2.8. Subsequent Events; Undisclosed Liabilities. Since September
30, 2000, the Company has not incurred any liability or
obligation, contingent or otherwise, that taken as a whole, is
material in the aggregate to the Company, except (i) in the
ordinary course of business consistent with past practices, or
(ii) as reflected in or reserved against in the balance sheet
of the Company as of September 30, 2000. Since September 30,
2000, the Company has conducted its business in the ordinary
course of business consistent with past practices, and there
has not been any Material Adverse Effect and there is no
condition existing that could reasonably be expected to result
in a Material Adverse Effect on the business of the Company.
2.9. Consents and Approvals. No material consent, approval,
qualification, order or authorization of, or filing with, any
local, state or federal governmental authority or any third
party, including any approval under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, is required on
the part of the Company in connection with the Company's valid
execution, delivery or performance of this Agreement, or the
offer, sale or issuance of the Shares by the Company, other
than the filings that have been made prior to the Closing,
except that any notices of sale required to be filed by the
Company with the SEC under Regulation D of the 1933 Act and
filings required by the rules of the Nasdaq National Market,
or such post-closing filing as may be required under
applicable state securities laws, which will be timely filed
within the applicable periods therefor.
2.10. Compliance with Laws and Court Orders. The Company is not in
violation of any applicable law, rule, regulation, judgment,
injunction, order or decree except for
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violations that have not had and would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect.
2.11. No Conflict. The execution and delivery of this Agreement and
the Company's performance of its obligations under this
Agreement will not (i) violate any applicable law, ordinance,
rule or regulation of any governmental authority or (ii)
conflict with or result in a breach of the terms and
conditions of, or constitute any default under, the Company's
Certificate of Incorporation or By-laws, or any contract,
agreement or instrument to which the Company or any subsidiary
is a party or by which the Company or any Subsidiary or any of
their respective property if bound, except, in any such case,
for violations, conflicts or breaches which individually or in
the aggregate would not have a Material Adverse Effect.
2.12. Insurance. The Company has in full force and effect fire and
casualty, general liability and product liability insurance
policies, with extended coverage, in amounts customary for
companies similarly situated to the Company.
2.13. Environmental and Safety Laws. The Company is not in violation
of any applicable statute, law or regulation relating to the
environment or occupational health and safety, except where
such violation could not reasonably be expected to have a
Material Adverse Effect, and to the best of its knowledge, no
material expenditures are or will be required in order to
comply with any such existing statute, law or regulation.
2.14. Legal Proceedings, Etc. There is no legal, administrative,
arbitration or other action or proceeding or governmental
investigations pending, or to the Company's knowledge
threatened, against the Company which could reasonably be
expected to result in the issuance of an order restraining,
enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this
Agreement.
3. Representations and Warranties of Investor. Investor hereby represents
and warrants to the Company that:
3.1. Organization and Existence. Investor is a corporation duly
incorporated, validly existing and in good standing under the
laws of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted.
3.2. Corporate Authorization. Investor has full corporate power and
authority to execute and deliver this Agreement and perform
its obligations hereunder. The execution, delivery and
performance by Investor of this Agreement have been duly
authorized by all requisite corporate action. This Agreement,
assuming due authorization, execution and delivery by the
Company, constitutes the valid and legally binding obligation
of Investor, enforceable against Investor in accordance with
its terms, except as such enforcement may be limited by
applicable laws relating to creditors' rights or principles of
equity affecting the availability of remedies.
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3.3. Purchase Entirely for Own Account. Investor is sophisticated
in transactions of this type and capable of evaluating the
merits and risks of the transactions described herein, and has
the capacity to protect its own interests. Investor has not
been formed solely for the purpose of entering into the
transactions described herein. The Shares to be received by
Investor will be acquired for investment for Investor's own
account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that Investor
has no present intention of selling, granting any
participation in, or otherwise distributing the same. By
executing this Agreement, Investor further represents that
Investor does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with
respect to any of the Shares.
3.4. Restricted Securities. Investor understands that the shares of
Common Stock it is purchasing are characterized as "restricted
securities" under the federal securities laws inasmuch as they
are being acquired from the Company in a transaction not
involving a public offering and that under such laws and
applicable regulations such securities may be resold without
registration under the 1933 Act only under certain limited
circumstances. In this connection Investor represents that it
is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the
1933 Act.
Investor agrees that it shall not sell or otherwise transfer
any of the Shares without registration under the 1933 Act, or
pursuant to Rule 144 under the 1933 Act, or pursuant to an
opinion of counsel reasonably satisfactory to the Company that
an exemption from registration is available, and fully
understands and agrees that it must bear the total economic
risk of its purchase for an indefinite period of time because
of the restricted nature of the Shares. Investor understands
that the Company is under no obligation to register the Shares
on its behalf. Investor understands the lack of liquidity and
restrictions on transfer of the Shares and that this
investment is suitable only for a person or entity of adequate
financial means that has no need for liquidity of this
investment and that can afford a total loss of its investment.
3.5. Legends. Investor acknowledges that the certificates
evidencing the Shares shall bear the following or
substantially similar legend or such other legends as may be
required by state or other applicable securities laws:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR THE SECURITIES ACT OF ANY
STATE. THE SHARES MAY NOT BE SOLD, TRANSFERRED FOR
VALUE, PLEDGED, HYPOTHECATED OR OTHERWISE ENCUMBERED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM
UNDER THE ACT AND/OR THE SECURITIES ACT OF ANY STATE
OR IN THE ABSENCE OF AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER SUCH ACT OR ACTS."
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3.6. Removal of Legends
(a) Any legend endorsed on a certificate pursuant to
Section 3.5 shall be removed (i) if the shares of
Common Stock represented by such certificate shall
have been resold under an effective registration
statement under the 1933 Act or otherwise lawfully
sold in a public transaction, (ii) if such shares may
be transferred in compliance with Rule 144
promulgated under the 1933 Act, or (iii) if the
holder of such shares shall have provided the Company
with an opinion of counsel, in form and substance
acceptable to the Company and its counsel, stating
that a public sale, transfer or assignment of such
shares may be made without registration.
(b) Any legend endorsed on a certificate as required by
state securities laws pursuant to Section 3.5 shall
be removed if the Company receives an order of the
appropriate state authority authorizing such removal
or if the holder of such shares provides the Company
with an opinion of counsel, in form and substance
acceptable to the Company and its counsel, stating
that such state legend may be removed.
3.7. Accredited Investor. Investor is an "accredited investor" (as
defined in Rule 501(a) under the 1933 Act) and has the
financial ability to bear the economic risks of its
investment, has adequate means for providing for its current
needs and contingencies and has no need for liquidity with
respect to its investment in the Company.
3.8. Consents and Approvals. Except for Schedule 13D or 13G under
the Securities Exchange Act of 1934, no material consent,
approval, qualification, order or authorization of, or filing
with, any local, state or federal governmental authority or
any third party, including any approval under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, is required on the part of the Investor in connection
with the Investor's valid execution, delivery or performance
of this Agreement.
3.9. Legal Proceedings, Etc. There is no legal, administrative,
arbitration or other action or proceeding or governmental
investigations pending, or to the Investor's knowledge
threatened against the Investor which could reasonably be
expected to result in the issuance of an order restraining,
enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this
Agreement.
3.10. Availability of Funds. Investor has or will have available at
Closing, sufficient funds to pay the Purchase Price for the
Shares.
3.11. Ultimate Parent Entity. Sanofi-Synthelabo, a societe anonyme,
organized under the laws of France, is the ultimate parent
entity (as defined in 16 C.F.R. Section
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801.1(a)(3) and (b)) of Investor and Sanofi-Synthelabo
(societe anonyme), together with all entities it controls (as
defined in 16 C.F.R. Section 801.1(b)), does not presently
hold any voting securities of the Company.
4. Covenant relating to Rule 144. The Company will file reports in
compliance with the 1934 Act, will comply with all rules and
regulations of the Commission applicable in connection with the use of
Rule 144 and take such other actions and furnish the Investor with such
other information as the Investor may request in order to avail itself
of such rule or any other rule or regulation of the Commission allowing
Investor to sell any Company Shares without registration, and will, at
its own expense, upon the request of the Investor, deliver to the
Investor a certificate, signed by the Company's principal financial
officer, stating (a) the Company's name, address and telephone number
(including area code), (b) the Company's Internal Revenue Service
identification number, (c) the Company's Commission file number, (d)
the number of shares of each class of stock outstanding as shown by the
most recent report or statement published by the Company, and (e)
whether the Company has filed the reports required to be filed under
the 1934 Act for a period of at least ninety (90) days prior to the
date of such certificate and in addition has filed the most recent
annual report required to be filed thereunder. If at any time the
Company is not required to file reports in compliance with either
Section 13 or Section 15(d) of the 1934 Act, the Company at its expense
will, upon the written request of the Investor, make available adequate
current public information with respect to the Company within the
meaning of paragraph (c)(2) of Rule 144.
5. Lock-Up. Notwithstanding anything to the contrary contained in this
Agreement, Investor shall not sell, contract to sell, grant any option
to purchase, transfer the economic risk of ownership in, make any short
sale of, pledge or otherwise transfer or dispose of (collectively,
"Sell") any Shares for a period of one (1) year after the Closing Date.
Further, Investor agrees that during any three-month period following
the first anniversary of the Closing Date and prior to the second
anniversary of the Closing Date, it will only Sell up to an aggregate
of twenty-five percent (25%) of the Shares; provided, however, that
Investor agrees that it will notify the Company prior to taking any
action to Sell and in any event will not Sell, within one (1) trading
day, in one or a series of related transactions, Shares constituting
more than twenty percent (20%) of the average daily trading volume of
the Common Stock over the twenty (20) trading days immediately
preceding such trading day. Investor further agrees, in the event of a
public offering by the Company of Common Stock on a Registration
Statement on Form S-1, S-2, S-3 or S-4, not to Sell Shares for a period
of ninety (90) days from the date Investor receives notice from the
Company that the Company has filed or intends to file within thirty
(30) days a registration statement with respect to the Company's Common
Stock with the United States Securities and Exchange Commission. The
above limitation shall not apply with respect to more than two (2)
public offerings of Common Stock by the Company.
6. Conditions to Closing.
6.1. Conditions of Investor to Closing; Deliveries to Investor. The
obligations of Investor to consummate the transactions
contemplated by this Agreement are
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subject to the satisfaction, at or prior to the Closing, of
each of the following conditions:
(a) A certificate from a duly authorized officer of the
Company certifying that the representations and
warranties of the Company set forth in this Agreement
shall be true and correct as of the Closing Date as
if made on and as of the Closing Date.
(b) The Collaboration Agreement shall have concurrently
closed.
(c) Investor shall have received the following documents
or deliveries at or before the Closing, each of which
shall be in full force and effect:
(i) evidence of the delivery of the letter to the
Company's transfer agent pursuant to Section 1.2 above; and
(ii) a certificate signed by the chief executive
officer and the corporate secretary of the Company certifying
(x) to resolutions duly and validly adopted by the Board of
Directors of the Company evidencing and its authorization of
the execution and delivery of this Agreement and the issuance
of the Shares to Investor, and the consummation of the
transactions contemplated hereby and that such resolutions
have not been amended and remain in full force and effect, and
(y) to the names and signatures of the persons authorized on
behalf of the Company to execute and deliver this Agreement.
6.2. Conditions of the Company to Closing; Deliveries to the
Company. The obligations of the Company to consummate the
transactions contemplated by this Agreement are subject to the
satisfaction, at or prior to the Closing, of each of the
following conditions:
(a) A certificate from a duly authorized officer of
Investor certifying that the representations and
warranties of Investor set forth in this Agreement
shall be true and correct as of the Closing Date as
if made on and as of the Closing Date.
(b) The Collaboration Agreement shall have concurrently
closed.
(c) The Company shall have received the following
documents or deliveries at or before the Closing,
each of which shall be in full force and effect:
(i) a certificate signed by the chief executive
officer and the corporate secretary of Investor certifying (x)
to resolutions duly and validly adopted by the Board of
Directors of Investor evidencing and its authorization of the
execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby and that such
resolutions have not been amended and remain in full force and
effect, and (y) to the names and signatures of the persons
authorized on behalf of Investor to execute and deliver this
Agreement; and
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(ii) the consideration payable by Investor at Closing
as provided in Section 1.3 in immediately available funds.
7. Termination.
7.1. Termination. This Agreement may be terminated prior to the
Closing:
(a) By mutual written consent of the Company and
Investor.
(b) In the event that the Collaboration Agreement shall
not have concurrently closed.
7.2. Effect of Termination. In the event of the termination of this
Agreement as provided in Section 7.1, this Agreement shall be
of no further force or effect; provided, however that the
termination of this Agreement shall not relieve any party from
any liability for any willful and knowing breach of this
Agreement.
8. Miscellaneous.
8.1. Successors and Assigns. This Agreement may not be assigned
without the prior written consent of the non-assigning party;
provided, however, that without prior written approval,
Investor may assign any and all of its rights and interest
under this Agreement to one or more of its Affiliates and
designate one or more of its Affiliates to perform its
obligations under this Agreement; provided such Affiliate
expressly acknowledges and confirms the representations,
warranties and information set forth in Sections 3.4, 3.5 and
3.7 of this Agreement. Any purported assignment in violation
of this provision shall be null and void. The terms and
conditions of this Agreement shall inure to the benefit of and
be binding upon the respective permitted successors and
assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this
Agreement.
8.2. Third Party Purchaser. A third-party purchaser of the Shares
from Investor will not be subject to any of the terms of this
Agreement other than those imposed by the federal and state
securities laws.
8.3. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York
(irrespective of its choice of law principles).
8.4. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
8.5. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
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8.6. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile
transmission) and shall be deemed to have been given if
delivered personally, mailed by certified mail (return receipt
requested) or sent by cable, telegram, telecopier or
recognized overnight delivery service to the parties at the
following addresses or at such other addresses as specified by
the parties by like notice:
If to the Company:
Atrix Laboratories, Inc.
2579 Midpoint Drive
Fort Collins, Colorado 80525
Attn: Dr. Charles P. Cox, Vice President of
New Business Development
Fax: (970) 482-9765
Phone: (970) 482-5868
With a copy to:
Morrison & Foerster LLP
370 17th Street, Suite 5200
Denver, Colorado 80202
Attn: Warren L. Troupe, Esq.
Fax: (303) 592-1510
Phone: (303) 592-1500
If to Investor:
Sanofi-Synthelabo Inc.
90 Park Avenue
New York, NY 10016
Attn: Gregory Irace
Vice President and Chief Financial Officer
Telephone: (212) 551-4000
Facsimile: (212) 551-4905
With a copy to:
Sanofi-Synthelabo Inc.
90 Park Avenue
New York, New York 10016
Attn: General Counsel
Telephone: (212) 551-4306
Facsimile: (212) 551-4919
Notice so given shall be deemed given and received (i) if by
mail on the fourth calendar day after posting; (ii) by cable,
telegram, telecopier, telex of personal
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delivery on the date of actual transmission or (as the case
may be) personal or other delivery; and (iii) if by overnight
courier, on the next business day following the day such
notice is delivered to the courier service.
8.7. Finders Fee. Each party represents that it neither is nor will
be obligated for any finders' fee or commission in connection
with this transaction. Investor agrees to indemnify and hold
harmless the Company from any liability for any commission or
compensation in the nature of a finders' fee (and costs and
expenses of defending against such liability or asserted
liability) for which Investor or any of its officers,
partners, employees or representatives is responsible. The
Company agrees to indemnify and hold harmless Investor from
any liability for any commission or compensation in the nature
of a finders' fee (and the costs and expenses of defending
against such liability or asserted liability) for which the
Company or any of its officers, employees or representatives
is responsible.
8.8. Expenses. The Company and the Investor shall pay their
respective costs and expenses incurred with respect to the
negotiation, execution, delivery and performance of this
Agreement.
8.9. Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written
consent of the Company and the Investor. Any amendment or
waiver effected in accordance with this paragraph shall be
binding on the Investor and the Company.
8.10. Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its
terms.
8.11. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements and
understandings, both oral and written, between the parties
with respect to the subject matter hereof. No representation,
inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied upon by either party
intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
8.12. Other Agreements. The Company will not enter into any other
agreement with respect to its securities which violates the
rights granted to the Investor in this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATRIX LABORATORIES, INC. SANOFI-SYNTHELABO INC.
a Delaware corporation a Delaware corporation
By: /s/ David R. Bethune By: /s/ John M. Spinnato
---------------------------------- ----------------------------------
Name: David R. Bethune Name: John M. Spinnato
Title: Chairman and Chief Title: Senior Vice President and
Executive Officer General Counsel
SANOFI-SYNTHELABO INC.
a Delaware corporation
By: /s/ Richard H. Thomson
----------------------------------
Name: Richard H. Thomson
Title: Vice President and Treasurer
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EXHIBIT A
LETTERHEAD OF ATRIX LABORATORIES, INC.
December __, 2000
American Stock Transfer & Trust Company
Transfer Agent and Registrar
6201 15th Avenue
Brooklyn, NY 11219
Attention:
-------------------------
Re: Atrix Laboratories, Inc. - Share Issuance Instructions
Ladies and Gentlemen:
Atrix Laboratories, Inc., a Delaware corporation (the
"Company"), proposes to issue _______________ (__________) shares of its common
stock, par value $.001 per share (the "Common Stock") pursuant to a Stock
Purchase Agreement between the Company and Sanofi-Synthelabo Inc. The shares to
be issued have been duly authorized, and when issued will be validly
outstanding, fully paid and non-assessable.
1. You are hereby irrevocably authorized and directed, as the
Company's Transfer Agent and Registrar, to register and countersign, as an
original issue, one certificate representing an aggregate of _________ shares of
the Common Stock in the name of Sanofi-Synthelabo Inc.
2. You are further directed to deliver the above referenced
share certificate to the following address, by registered mail:
Sanofi-Synthelabo Inc.
90 Park Avenue
New York, NY 10016
Attn: Gregory Irace
Vice President and Chief Financial Officer
3. The above-referenced certificate shall bear the following
legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES ACT OF ANY STATE. THE SHARES MAY NOT BE SOLD, TRANSFERRED FOR VALUE,
PLEDGED, HYPOTHECATED OR OTHERWISE ENCUMBERED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OF THEM
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UNDER THE ACT AND/OR THE SECURITIES ACT OF ANY STATE OR IN
THE ABSENCE OF AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR ACTS."
Please acknowledge receipt of these instructions below.
Very truly yours,
By:
------------------------------------------
Name: David R. Bethune
Title: Chairman and Chief Executive Officer
American Stock Transfer & Trust Company
as Transfer Agent and Registrar
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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