EXHIBIT 10.2
AMENDMENT NO. 2 TO
STOCKHOLDERS AND REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 TO THE STOCKHOLDERS AND REGISTRATION RIGHTS
AGREEMENT (this "Amendment") made effective as of the 15th day of October, 2001
(the "Effective Date") by and among CollaGenex Pharmaceuticals, Inc., a Delaware
corporation, with its principal place of business at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), OCM Principal Opportunities Fund,
L.P., a Delaware limited partnership (the "Investor"), and the individuals and
entities listed on the signature pages hereto (the "Purchasers").
WITNESSETH:
WHEREAS, the Company, the Investor and the Purchasers are parties to that
certain Stockholders and Registration Rights Agreement dated as of March 19,
1999, and subsequently amended in September 2000 pursuant to Amendment No. 1 to
such agreement (the "Stockholders Agreement"); and
WHEREAS, the Company, the Investor and the Purchasers desire to further
amend the Stockholders Agreement to reflect the mutually agreed upon revised
terms in accordance with the provisions of this Amendment.
NOW THEREFORE, in consideration of the promises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions.
Capitalized terms used herein, but not otherwise defined, shall have the
meanings ascribed to them in the Stockholders Agreement.
2. Amendment.
The existing Section 4(g), Subsection (i) of the Stockholders Agreement
regarding "Excluded Securities", is hereby amended and restated in its entirety
to read as follows:
"(i) Common Stock or options to purchase shares of Common Stock, issued to
officers, employees or directors of, or consultants to, the Corporation,
pursuant to the 1992 Stock Option Plan, the 1996 Stock Option Plan, the
Non-Employee Director Option Plan or any other plan subsequently approved by the
Corporation; provided, however, that the maximum number of shares of Common
Stock heretofore or hereafter issued or issuable pursuant to all such
agreements, plans and arrangements shall not exceed an aggregate of Three
Million One Hundred Seventeen Thousand Four Hundred Thirty Nine (3,117,439)
shares. Any option grant subsequent to the date of the filing of the Amended
Certificate of Designation, Preferences and Rights of Series D Cumulative
Convertible Preferred Stock of the Company filed by the Corporation with the
Secretary of State of the State of Delaware in October 2001 (the "Amended Series
D Certificate"), which otherwise requires the approval of the board of
directors, shall require, prior to the time of such grant, the approval of the
Series D Director (as defined in
Section 8(c) of the Amended Series D Certificate)."
3. Reference to and Effect on the Stockholders Agreement.
(a) On and after the Effective Date, each reference to "this
Agreement," "hereunder," "hereof," "herein," or words of like import shall mean
and be a reference to the Stockholders Agreement as amended hereby. No reference
to this Amendment need be made in any instrument or document at any time
referring to the Stockholders Agreement, a reference to the Stockholders
Agreement in any of such instrument or document to be deemed to be a reference
to the Stockholders Agreement as amended hereby.
(b) Except as expressly amended by this Amendment, the provisions of
the Stockholders Agreement shall remain in full force and effect.
4. Governing Law.
This Amendment shall be governed by and its provisions construed and
enforced with the internal laws of the State of Delaware without reference to
its principles regarding conflicts of laws.
5. Counterparts.
This Amendment may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute a single
instrument.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed and delivered on the date first written above.
COLLAGENEX PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
INVESTOR:
OAKTREE PRINCIPAL OPPORTUNITIES
FUND, L.P.
By: Oaktree Capital Management, LLC, its
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO STOCKHOLDERS AND REGISTRATION RIGHTS
AGREEMENT]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed and delivered on the date first written above.
PURCHASERS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
MARQUETTE VENTURE PARTNERS II, L.P.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
MVP II AFFILIATES FUND, L.P.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
PEBBLEBROOK PARTNERS LTD
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Partner
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO STOCKHOLDERS AND REGISTRATION RIGHTS
AGREEMENT]
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