EXHIBIT NO. 10.3
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the 24th
day of August, 2001 (the "Execution Date"), by and between Atrix Laboratories,
Inc., a Delaware corporation having offices at 2579 Midpoint Drive, Fort
Collins, CO 80525-4417 (hereinafter, the "Investor"), and CollaGenex
Pharmaceuticals, Inc., a Delaware corporation having offices at 41 University
Drive, Newtown, PA 18940 (hereinafter, "CGPI").
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 CGPI will sell and issue to
Investor 330,556 shares of CGPI Common Stock (the "Shares")
for the purchase price per share equal to $9.0756, which is
[**] of the average closing prices reported on the Nasdaq
National Market System for the [**] consecutive trading days
prior to, but not including, the Execution Date, for an
aggregate purchase price of $2,999,994.03 (the "Purchase
Price").
1.2. Closing. The purchase and sale of the Shares shall take place
at the offices of the Investor, 2579 Midpoint Drive, Fort
Collins, Colorado 80525, on the "Effective Date", as such term
is defined in the License Agreement of even date herewith
between the parties hereto (the "License Agreement"), or at
such other times and places as CGPI and Investor mutually
agree upon in writing (which times and places are designated
as the "Closing"). At the Closing, CGPI 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 CGPI in immediately available funds by
wire transfer to a bank account designated by CGPI 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 CGPI 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.
"Common Stock" means the Common Stock, par
value $.01 per share of CGPI.
"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 CGPI 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 CGPI. CGPI hereby represents and
warrants to Investor that:
2.1. Organization, Good Standing and Qualification. CGPI 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. CGPI 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 CGPI consists of:
(a) Preferred Stock. 5,000,000 shares of preferred stock,
$.01 par value, of which (i) 200,000 shares have been
designated Series D Convertible Preferred Stock, of
which 200,000 are issued and outstanding; and (ii)
4,800,000 shares are undesignated, none of which are
issued and outstanding.
(b) Common Stock. 25,000,000 shares of Common Stock, of
which 10,669,017 shares were issued and outstanding
on August 15, 2001.
2.3. Authorization. All corporate action on the part of CGPI, its
officers, directors and stockholders necessary for (i) its
authorization, execution and delivery of this
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Agreement, (ii) the performance of all obligations of CGPI
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 CGPI, enforceable against CGPI in
accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles
relating to enforceability (regardless of whether considered
in a proceeding at law or in equity).
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 and except for requisite Federal securities and
state blue sky filings, will be issued in compliance with all
applicable federal and state securities laws.
2.5. SEC Filings. CGPI has registered its Common Stock pursuant to
Section 12 of the 1934 Act, and the Common Stock is quoted on
the Nasdaq National Market. CGPI has filed all 1934 Act
reports for a period of at least twelve (12) months
immediately preceding the offer or sale of the Shares. CGPI'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 CGPI included in CGPI's Annual
Report on Form 10-K for the year ended December 31, 2000
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 CGPI, (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 CGPI as of the
dates thereof and the results of operations and cash flows for
the periods then ended. The unaudited financial statements
included in CGPI's Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, 2001 and June 30, 2001
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 CGPI, (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
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presentation items that may be required by GAAP) and (iii)
present fairly the financial position of CGPI 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 CGPI'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 CGPI, threatened, against or
affecting CGPI, or any of its properties, which could
reasonably be expected, individually or in the aggregate, (i)
to have a Material Adverse Effect or (ii) 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.
2.7. No Default. Except as disclosed in CGPI's filings with the
SEC, CGPI 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 CGPI'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 June 30,
2001, CGPI has not incurred any liability or obligation,
contingent or otherwise, that taken as a whole, is material in
the aggregate to CGPI, 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 CGPI as of June
30, 2001. Since June 30, 2001, CGPI 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 CGPI.
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 CGPI in connection with CGPI's valid execution,
delivery or performance of this Agreement, or the offer, sale
or issuance of the Shares by CGPI, other than the filings that
have been made prior to the Closing, except that any notices
of sale required to be filed by CGPI 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 filings 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. CGPI 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. Except for rights to anti-dilution protection for
holders of CGPI's Series D Preferred Stock, the execution and
delivery of this Agreement and CGPI'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, CGPI's Certificate of Incorporation or By-laws,
or any contract, agreement or instrument to which CGPI or any
subsidiary is a party or by which CGPI or any Subsidiary or
any of their respective property if bound, except, in each
case, for violations, conflicts or breaches which individually
or in the aggregate would not have a Material Adverse Effect.
2.12. Insurance. CGPI 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 CGPI.
3. Representations and Warranties of Investor. Investor hereby represents
and warrants to CGPI 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 CGPI,
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
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally
or by equitable principles relating to enforceability
(regardless of whether considered in a proceeding at law or in
equity).
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,
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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 CGPI 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.
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 CGPI 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 CGPI 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 and 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 CGPI THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR ACTS."
"Until the Separation Time (as defined in the Rights
Agreement referred to below), this certificate also
evidences and entitles the holder hereof to certain
Rights as set forth in a Shareholder Protection
Rights Agreement, dated as of September 15, 1997 (as
such may be amended from time to time, the "Rights
Agreement"), between CollaGenex Pharmaceuticals, Inc.
(the "Company") and American Stock Transfer & Trust
Company, as Rights Agent, the terms of which are
hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices
of the Company. Under certain circumstances, as set
forth in the Rights
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Agreement, such Rights may be redeemed, may become
exercisable for securities or assets of the Company
or securities of another entity, may be exchanged for
shares of Common Stock or other securities or assets
of the Company, may expire, may become void (if they
are "Beneficially Owned" by an "Acquiring Person" or
an Affiliate or Associate thereof, as such terms are
defined in the Rights Agreement, or by any transferee
of any of the foregoing) or may be evidenced by
separate certificates and may no longer be evidenced
by this certificate. The Company will mail or arrange
for the mailing of a copy of the Rights Agreement to
the holder of this certificate without charge after
the receipt of a written request therefor."
3.6. Removal of Legends
(a) The first 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 are
transferred in compliance with Rule 144 promulgated
under the 1933 Act, or (iii) if the holder of such
shares shall have provided CGPI with an opinion of
counsel, in form and substance acceptable to CGPI 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 CGPI receives an order of the
appropriate state authority authorizing such removal
or if the holder of such shares provides CGPI with an
opinion of counsel, in form and substance acceptable
to CGPI 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 CGPI.
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
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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.
4. Covenant relating to Rule 144. CGPI 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 the Shares without registration, and will, at its own expense,
upon the request of the Investor, deliver to the Investor a
certificate, signed by CGPI's principal financial officer, stating (a)
CGPI's name, address and telephone number (including area code), (b)
CGPI's Internal Revenue Service identification number, (c) CGPI'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 CGPI, and (e) whether CGPI 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 CGPI is not required to file reports in compliance with either
Section 13 or Section 15(d) of the 1934 Act, CGPI at its expense will,
upon the written request of the Investor, make available adequate
current public information with respect to CGPI within the meaning of
paragraph (c)(2) of Rule 144. The covenants set forth in this Section 4
shall survive the Closing.
5. Piggyback Registration Rights.
5.1. Registration Rights. If (but without any obligation to do so)
CGPI proposes to register any of its stock or other securities
under the 1933 Act in connection with an underwritten public
offering of such securities (other than a registration
relating solely to the sale of securities to participants in a
CGPI stock plan, a registration relating to a corporate
reorganization or other transaction under Rule 145 of the 1933
Act, a registration on any form that does not include
substantially the same information as would be required to be
included in a registration statement covering the sale of the
Shares, a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt
securities that are also being registered, or Common Stock
issued or to be issued pursuant to an equity line financing),
CGPI shall, at such time, promptly give Atrix written notice
of such registration. Upon the written request of Atrix given
within twenty (20) days after mailing of such notice by CGPI,
CGPI shall, subject to the provisions of Section 5.2 and
Section 5.6 hereof, use commercially reasonable efforts to
cause to be registered under the 1933 Act all of the Shares
that Atrix has requested to be registered.
5.2. Right to Terminate Registration. CGPI shall have the right to
terminate or withdraw any registration initiated by it under
Section 5.1 prior to the
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effectiveness of such registration whether or not Atrix has
elected to include securities in such registration. The
expenses of such withdrawn registration shall be borne by
CGPI.
5.3. Atrix to Provide Information. It shall be a condition
precedent to the obligations of CGPI to take any action
pursuant to this Section 5 with respect to the registration of
the Shares that Atrix furnish to CGPI such information
regarding itself, the Shares, and the intended method of
distribution of such Shares as shall be reasonably required to
effect the registration of such Shares.
5.4. Payment of Expenses. All expenses other than underwriting
discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to this
Section 5, including, without limitation, all registration,
filing and qualification fees (including "blue sky" fees),
printers' and accounting fees, fees and disbursements of
counsel for CGPI shall be borne by CGPI.
5.5. Additional Agreements. In the event of an underwritten public
offering, the right of the Investor to registration pursuant
to this Section 5 is conditioned upon such Investor's
participation in such underwriting, the inclusion of such
securities in the underwriting to the extent provided herein
and Investor entering into an underwriting agreement with the
underwriter or underwriters selected for such underwriting by
the Company (together with the Company and the other holders
distributing their securities through such underwriting), and
such other documents, agreements and certificates as shall be
deemed necessary by the underwriter in connection with such
public offering.
5.6. Registration Priority. Notwithstanding any other provision of
this Section 5, if the underwriter advises the Company in
writing that in its good faith judgment the number of shares
requested to be registered exceeds the number of shares which
can be sold in such offering: (a) the number of shares so
requested to be included in the offering will be reduced to
that number of shares which in the good faith judgment of the
underwriter can be sold in such offering and (b) such reduced
number of shares will be allocated first to the securities
CGPI proposes to sell; second to those CGPI stockholders
having registration rights pursuant to the terms of that
certain Registration Rights Agreement dated September 29, 1995
and that certain Stockholders and Registration Rights
Agreement dated March 19, 1999 in accordance with the terms of
each such agreement; third, to those CGPI stockholders having
registration rights pursuant to the terms of those certain
Registration Rights Agreements dated March 12, 2001 in
accordance with the terms of each such agreement; and fourth,
to Atrix, with respect to the Shares.
5.7. Termination of Registration Rights. Atrix shall not be
entitled to exercise any right provided for in this Section 5
at such time as all of the Shares can be sold pursuant to Rule
144(k) of the 1933 Act.
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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 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 CGPI
certifying that the representations and warranties of
CGPI 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 Effective Date of the License Agreement shall
have occurred.
(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 CGPI's
transfer agent pursuant to Section 1.2 above; and
(ii) a certificate signed by the chief executive
officer and the corporate secretary of CGPI certifying (x) to
resolutions duly and validly adopted by the Board of Directors
of CGPI evidencing 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
CGPI to execute and deliver this Agreement.
6.2. Conditions of CGPI to Closing; Deliveries to CGPI. The
obligations of CGPI 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 Effective Date of the License Agreement shall
have occurred.
(c) CGPI 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 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
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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
(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 CGPI and Investor.
(b) In the event that the Effective Date under the
License Agreement shall not have occurred on or prior
to August 24, 2001.
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 Delaware
(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.
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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.
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 Investor:
Atrix Laboratories, Inc.
2579 Midpoint Drive
Fort Collins, Colorado 80525
Attn: Dr. Charles P. Cox, Senior Vice President of
Corporate 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 CGPI:
CollaGenex Pharmaceuticals, Inc.
41 University Drive
Newtown, PA 18940
Attn: Brian M. Gallagher, Ph.D.
Chairman, President and Chief Executive Officer
Telephone: (215) 579-7388
Facsimile: (215) 579-8577
With a copy to:
William J. Thomas, Esq.
Hale and Dorr LLP
650 College Road East
Princeton, New Jersey 08540
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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 delivery on the date
of actual transmission or (as the case may be) personal or
other delivery or one business day after transmission (if
transmitted and received on a non-business day); 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 CGPI 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. CGPI
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 CGPI
or any of its officers, employees or representatives is
responsible.
8.8. Expenses. CGPI and the Investor shall pay their own respective
costs and expenses incurred with respect to the negotiation,
execution, delivery and performance of this Agreement and the
transactions contemplated hereby.
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 CGPI and the Investor. Any amendment or waiver
effected in accordance with this paragraph shall be binding on
the Investor and CGPI.
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.
* * * * *
13
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATRIX LABORATORIES, INC. COLLAGENEX PHARMACEUTICALS, INC.
a Delaware corporation a Delaware corporation
By: /s/ Brian M. Gallagher
By: /s/ David R. Bethune ----------------------------
------------------------------- Brian M. Gallagher, Ph.D.
David R. Bethune, Chairman and Chairman, President and
Chief Executive Officer Chief Executive Officer
14
EXHIBIT A
LETTERHEAD OF COLLAGENEX PHARMACEUTICALS, INC.
August 24, 2001
American Stock Transfer & Trust Company
Transfer Agent and Registrar
40 Wall Street
New York, New York 10005
Attention: Craig Leibell
Re: CollaGenex Pharmaceuticals, Inc. - Share Issuance Instructions
Ladies and Gentlemen:
CollaGenex Pharmaceuticals, Inc., a Delaware corporation ("CGPI"),
proposes to issue three hundred thirty thousand five hundred fifty-six (330,556)
shares of its common stock, par value $.01 per share (the "Common Stock")
pursuant to a Stock Purchase Agreement between CGPI and Atrix Laboratories, Inc.
1. You are hereby irrevocably authorized and directed, as CGPI's
Transfer Agent and Registrar, to register and countersign, as an original issue,
one certificate representing an aggregate of 330,556 shares of the Common Stock
in the name of Atrix Laboratories, Inc.
2. You are further directed to deliver the above referenced share
certificate to the following address, by registered mail:
Atrix Laboratories, Inc.
2579 Midpoint Drive
Fort Collins, CO 80525-4417
Attn: Brian G. Richmond
Chief Financial Officer
3. The above-referenced certificate shall bear the legends
substantially similar to the following:
"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 ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT OR ACTS."
A-1
"Until the Separation Time (as defined in the Rights Agreement referred
to below), this certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Shareholder Protection Rights Agreement, dated
as of September 15, 1997 (as such may be amended from time to time, the "Rights
Agreement"), between CollaGenex Pharmaceuticals, Inc. (the "Company") and
American Stock Transfer & Trust Company, as Rights Agent, the terms of which are
hereby incorporated herein by reference and a copy of which is on file at the
principal executive offices of the Company. Under certain circumstances, as set
forth in the Rights Agreement, such Rights may be redeemed, may become
exercisable for securities or assets of the Company or securities of another
entity, may be exchanged for shares of Common Stock or other securities or
assets of the Company, may expire, may become void (if they are "Beneficially
Owned" by an "Acquiring Person" or an Affiliate or Associate thereof, as such
terms are defined in the Rights Agreement, or by any transferee of any of the
foregoing) or may be evidenced by separate certificates and may no longer be
evidenced by this certificate. The Company will mail or arrange for the mailing
of a copy of the Rights Agreement to the holder of this certificate without
charge after the receipt of a written request therefor."
Please acknowledge receipt of these instructions below.
Very truly yours,
By: /s/ Brian M. Gallagher
-------------------------------------------
Name: Brian M. Gallagher, Ph.D.
Title: Chairman, President and Chief Executive
Officer
American Stock Transfer & Trust Company
as Transfer Agent and Registrar
By:
-------------------------
Name:
-----------------------
Title:
----------------------
A-2