EXHIBIT NO. 10.2
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
STOCK PURCHASE AGREEMENT
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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 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇ (hereinafter, the "Investor"), and CollaGenex Pharmaceuticals, Inc.,
a Delaware corporation having offices at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(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
by 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, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, 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 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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 conomic 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 ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇, Senior Vice President of
Corporate Development
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
If to CGPI:
CollaGenex Pharmaceuticals, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
Chairman, President and Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ -----------------------------
---------------------------------- ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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."
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"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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
Title: Chairman, President and Chief Executive
Officer
American Stock Transfer & Trust Company
as Transfer Agent and Registrar
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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