1
Exhibit 99.2
ATRIX LABORATORIES, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
as of July 18, 2000 by and between ATRIX LABORATORIES, INC., a Delaware
corporation (the "Company"), and ELAN INTERNATIONAL SERVICES, LTD., a Bermuda
exempted limited liability company ("EIS").
RECITALS:
A. Pursuant to a Securities Purchase Agreement dated as of the
date hereof by and between the Company and EIS (the "Purchase Agreement"), EIS
has acquired, or may acquire in the future, certain shares of common stock, par
value $.001, of the Company (the "Common Stock"), certain shares of Series A
Convertible Exchangeable Preferred Stock, par value $.001, of the Company (the
"Series A Preferred Stock"), a convertible promissory note (the "Note"), and
warrants to acquire shares of Common Stock (the "Warrants"; together with the
Series A Preferred Stock and the Note, the "Securities"), which Securities are
convertible or exercisable into or for shares of Common Stock.
B. The execution of the Purchase Agreement has occurred on the
date hereof and it is a condition to the closing of the transactions
contemplated thereby that the parties execute and deliver this Agreement.
C. The parties desire to set forth herein their agreement as
to the terms and conditions related to the granting of certain registration
rights to the Holders (as defined below) relating to the Common Stock held by
such Holders and the Common Stock underlying the Securities.
AGREEMENT:
The parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Commission" shall mean the U.S. Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect from time to time.
"Holders" or "Holders of Registrable Securities" shall mean
EIS and any Person who shall have acquired Registrable Securities from EIS,
either individually or jointly, as the case may be, in a transaction pursuant to
which registration rights are transferred pursuant to Section 10 hereof.
2
"Lock-Up Period" shall mean the period beginning on the date
hereof and ending on the date that is two years after the date hereof.
"Person" shall mean an individual, a partnership, a company,
an association, a joint stock company, a trust, a joint venture, an
unincorporated organization and a governmental or quasi-governmental entity, or
any department, agency or political subdivision thereof.
"Registrable Securities" means (i) any shares of Common Stock
purchased pursuant to the Purchase Agreement, (ii) any shares of Common Stock
issued or issuable upon conversion or exercise of any of the Securities, (iii)
any Common Stock held or acquired by Persons having registration rights as to
such Common Stock, (iv) any Common Stock issued or issuable in respect of the
securities referred to in clauses (i) through (iii) above upon any stock split,
stock dividend, recapitalization or similar event; excluding in all cases,
however, any Registrable Securities that have been sold under Rule 144
promulgated under the Securities Act, and Registrable Securities sold by a
Person in a transaction (including a transaction pursuant to a registration
statement under this Agreement and a transaction pursuant to Rule 144 under the
Securities Act) in which registration rights are not transferred pursuant to
Section 10 hereof.
The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act.
"Registration Expenses" shall mean all expenses, other than
Selling Expenses, incurred by the Company in complying with Sections 2 or 3
hereof, including without limitation, all registration, qualification and filing
fees, exchange listing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, and the
expense of any special audits incident to or required by any such registration.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by the Holders and the costs and fees of any accountants, attorneys
or other experts retained by the Holders or Holder.
2. Demand Registration.
(a) Requests for Registration In the event that the Company
receives from the Holder(s) a written request that the Company file a
registration statement on Form S-1 or S-3 (or any successor form to Form S-3) or
any other short-form registration statement, for a public offering of
Registrable Securities, (a "Demand Registration"), the reasonably anticipated
aggregate price to the public of which, net of underwriting discounts and
commissions, would be at least $5,000,000, within 10 days after receipt of any
such request, the Company will give written notice of such requested
registration to all other Holders of Registrable Securities; provided, however
that the Company shall not be obligated to effect, or take any action to effect,
any such Demand Registration (i) until a reasonable period of time prior to the
expiration of the Lock-Up Period, as determined by the Company in good faith and
reasonably agreed to by the
2
3
Holders requesting registration and in no event prior to the date that is three
months before the end of the Lock-Up Period or (ii) during the six month period
following the effective date of a registration (other than a registration on a
Form S-8). A Demand Registration on Form S-3 shall take priority over any other
form of registration statement, if available . The Company shall include such
other Holders' Registrable Securities in such offering if they have responded
affirmatively within 10 days after the receipt of the Company's notice. The
Holders in aggregate will be entitled to request one Demand Registration
hereunder. A registration will not count as a Demand Registration until it has
become effective (unless such Demand Registration has not become effective due
to the fault of the Holders requesting such registration, including a request by
such Holders that such registration be withdrawn).
(b) Priority on Demand Registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities requested to
be included in such offering exceeds the number of Registrable Securities that
can be sold in such offering without adversely affecting the marketability of
the offering, the Company will include in such registration:
(i) first such number of Registrable Securities
allocated pro rata among the Holders thereof and the other Persons holding
Registrable Securities based upon the number of Registrable Securities owned by
each such Holder and other Persons holding Registrable Securities requested to
be included in such offering; and
(ii) then any other shares of Common Stock proposed
to be sold by the Company or other Persons. No securities other than Registrable
Securities hereunder shall be included in such Demand Registration without the
prior written consent of Holders who collectively hold Registrable Securities
representing at least 50% of the Registrable Securities requested to be
registered by such Holders.
(c) Restrictions on Demand Registration. The Company may
postpone the filing or the effectiveness of a registration statement for a
Demand Registration one time for up to 105 days if the Company determines in
good faith that such Demand Registration would reasonably be expected to have a
material adverse effect on any proposal or plan by the Company to engage in any
financing, acquisition or disposition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer or similar
transaction or would require disclosure of any information that the board of
directors of the Company determines in good faith the disclosure of which would
be detrimental to the Company; provided, that in such event, the Holders
initially requesting such Demand Registration will be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration will not
count as a permitted Demand Registration hereunder and the Company will pay any
Registration Expenses in connection with such registration.
(d) Underwriting. If the Holders initiating the registration
request intend to distribute the Registrable Securities covered by their request
by means of an underwriting then they shall so advise the Company as a part of
their request made pursuant to Section 2(a) and the Company shall include such
information in the written notice to the other Holders pursuant to Section 2(a).
In such event (unless otherwise mutually agreed by a majority in interest of the
3
4
Holders requesting such registration), the right of any Holder to include
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in the underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
enter into an underwriting agreement in customary form with the managing
underwriter or underwriters selected for such underwriting by the Holders
holding more than fifty percent (50%) of the Registrable Securities to be
underwritten, subject to any existing agreements of the Company and to the
Company's prior written approval, which will not be unreasonably withheld or
delayed.
3. Piggyback Registrations. (a) Right to Piggyback. If at any
time after the end of the Lock-Up Period, the Company shall propose to register
Common Stock under the Securities Act (other than in a registration on Form S-3
relating to sales of securities to participants in a Company dividend
reinvestment plan, S-4 or S-8 or any successor form or in connection with an
acquisition or exchange offer or an offering of securities solely to the
existing shareholders or employees of the Company), the Company shall give
prompt written notice to all Holders of Registrable Securities of its intention
to effect such a registration and, subject to Section 3(b) and the other terms
of this Agreement, shall include in such registration all Registrable Securities
that are permitted under applicable securities laws to be included in such
registration and with respect to which the Company has received written requests
for inclusion therein by the Holders within 10 days after the receipt of the
Company's notice (each, a "Piggyback Registration"; together with a Demand
Registration, a "Registration").
(b) Priority on Piggyback Registrations. If a Piggyback
Registration is an underwritten registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number that can be sold in such offering without adversely affecting the
marketability of the offering, the Company shall include in such registration,
only as may be permitted in the reasonable business judgment of the managing
underwriters for such registration:
(i) first, up to that number of securities the
Company proposes to sell;
(ii) second, up to that number of Registrable
Securities requested to be included in such registration by the Holders
and by any other Persons, pro rata among the Holders of such
Registrable Securities and such other Persons, on the basis of the
number of shares of Registrable Securities of such Holders and other
Persons requested to be included in such offering; and
(iii) third, up to that number of other securities
requested to be included in such registration.
The Holders of any Registrable Securities included in such a registration shall
execute an underwriting agreement and customary accompanying documents in form
and substance satisfactory to the managing underwriters.
4
5
(c) Right to Terminate Registration. If, at any time after
giving written notice of its intention to register any of its securities as set
forth in Section 3(a) and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register such securities, the Company may, at
its election, give written notice of such determination to each Holder of
Registrable Securities and thereupon be relieved of its obligation to register
any Registrable Securities in connection with such registration (but not from
its obligation to pay the Registration Expenses in connection therewith as
provided herein).
(d) Selection of Underwriters. The Company shall have the
right to select the investment banker(s) and manager(s) to administer an
offering pursuant to a Piggyback Registration.
4. Expenses of Registration. Except as otherwise provided
herein, all Registration Expenses incurred in connection with registrations
pursuant to Sections 2 and 3 shall be borne by the Company and all Selling
Expenses relating to securities registered on behalf of the Holders of
Registrable Securities shall be borne by such Holders.
5. Holdback Agreements.
(a) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, for its own account during the
seven days prior to and during the 90-day period beginning on the effective date
of any underwritten Registration (except (A) as part of such underwritten
registration, (B) pursuant to registration statements on Form S-4 or Form S-8 or
any successor form, (C) pursuant to a registration statement then in effect or
(D) as required under any existing contractual obligation of the Company),
unless the underwriters managing the registered public offering otherwise agree,
and (ii) to use reasonable efforts to cause its officers and directors to cause
each holder of at least 5% (on a fully-diluted basis) of its outstanding Common
Stock, or any securities convertible into or exchangeable or exercisable for
Common Stock, to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such periods (except
as part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
(b) Each Holder agrees, in the event of a public offering by
the Company of Common Stock under a registration statement on Form X-0, X-0 or
S-4, not to effect any offer, sale, distribution or transfer, including a sale
pursuant to Rule 144 (or any similar provision then effect) under the Securities
Act (except as part of such registration), beginning on the date of receipt of a
written notice from the Company setting forth its intention to effect such
registration and ending on the earlier of (i) 180 days from the date of receipt
of such written notice or (ii) 90 days from the effective date of such
Registration Statement.
6. Registration Procedures. Whenever the Company is under the
obligation to register Registrable Securities held by the Holders hereunder, the
Company will use all
5
6
reasonable efforts to effect the Registration and the sale of such Registrable
Securities, and pursuant thereto the Company will as expeditiously as reasonably
possible:
(a) subject to Section 2(c) and 3(a) hereof, prepare and file
with the Commission a registration statement on any form for which the
Company qualifies with respect to such Registrable Securities and after
the expiration of the Lock-Up Period use all reasonable efforts to
cause such registration statement to become effective (provided that
before filing a registration statement or prospectus or any amendments
or supplements thereto that includes Registrable Securities held by the
Holders, the Company will (i) furnish to one counsel selected by the
Holders copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel, and (ii)
notify each Holder of Registrable Securities covered by such
registration of any stop order issued or threatened by the Commission);
(b) subject to Section 2(c), 3(c) and 6(e) hereof, prepare and
file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a
period equal to the shorter of (i) 120 days and (ii) the time by which
all Registrable Securities held by the Holders and covered by such
registration statement have been sold, and comply with the provisions
of the Securities Act with respect to the disposition of all
Registrable Securities held by the Holders and covered by such
registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in
such registration statement;
(c) furnish to each selling Holder of Registrable Securities
such number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such selling Holder may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Holder;
(d) use all reasonable efforts to register or qualify the
Registrable Securities held by the Holders under the securities or blue
sky laws of such jurisdictions as any selling Holder reasonably
requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such selling Holder to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such selling Holder (provided that the Company will
not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 6(d), (ii) subject itself to taxation in any
jurisdiction, or (iii) consent to general service of process in any
such jurisdiction);
(e) notify each selling Holder of such Registrable Securities,
at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the occurrence of any event as a
result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the
request of any such selling Holder, the Company will prepare a
supplement or amendment to such prospectus so
6
7
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the
statements therein not misleading; provided, however, that the Company
shall not be required to amend the registration statement or supplement
the Prospectus for a period of up to six months if the board of
directors of the Company determines in good faith that to do so would
reasonably be expected to have a material adverse effect on any
proposal or plan by the Company to engage in any financing, acquisition
or disposition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar
transaction or would require the disclosure of any information that the
board of directors of the Company determines in good faith the
disclosure of which would be detrimental to the Company, it being
understood that the period for which the Company is obligated to keep
the Registration Statement effective shall be extended for a number of
days equal to the number of days the Company delays amendments or
supplements pursuant to this provision;
(f) cause all such Registrable Securities held by selling
Holders to be listed on each securities exchange on which similar
securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all such
Registrable Securities held by selling Holders not later than the
effective date of such registration statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as the Holders of a majority of the Registrable Securities
being sold or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
(i) make available for inspection by a representative of the
Holders of Registrable Securities included in the registration
statement, any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent
retained by any such seller or underwriter, all pertinent financial and
other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and
independent accountants to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
(j) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement covering Registrable
Securities, or of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any Registrable
Securities included in such registration statement for sale in any
jurisdiction, use all reasonable efforts promptly to obtain the
withdrawal of such order; and
(k) if the registration is an underwritten offering, use all
reasonable efforts to obtain a so-called "cold comfort" letter from the
Company's independent public accountants in customary form and covering
such matters of the type customarily covered by cold comfort letters.
7
8
7. Obligations of Holders. Whenever the Holders of Registrable
Securities sell any Registrable Securities pursuant to a Registration, such
Holders shall be obligated to comply with the applicable provisions of the
Securities Act, including the prospectus delivery requirements thereunder, and
any applicable state securities or blue sky laws. In addition, each Holder of
Registrable Securities will be deemed to have agreed by virtue of its
acquisition of such Registrable Securities that, upon receipt of any notice
described in Section 6(e), such holder will forthwith discontinue disposition of
such Registrable Securities covered by such registration statement or prospectus
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6(e), or until it is advised in writing by
the Company that the use of the applicable prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such prospectus. The Holders shall
keep confidential the fact and content of any notice given by the Company
pursuant to Section 6(e).
8. Indemnification.
(a) In connection with any registration statement for a
Registration in which a Holder of Registrable Securities is participating, the
Company agrees to indemnify, to the fullest extent permitted by applicable law,
each such Holder of Registrable Securities, its officers and directors and each
Person who controls such Holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities, expenses or any amounts paid
in settlement of any litigation, investigation or proceeding commenced or
threatened to which each such indemnified party may become subject under the
Securities Act, including without limitation, attorneys fees and disbursements
(collectively, "Claims") insofar as such Claim arose out of (i) any untrue or
alleged untrue statement of material fact contained, on the effective date
thereof, in any such registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or (ii) any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as the same arise out of or is contained in any information furnished in
writing to the Company by such Holder expressly for use therein, by such
Holder's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after the Company has furnished such
Holder with a sufficient number of copies of the same or by such Holder's
failure to comply with applicable securities laws. In connection with an
underwritten offering, the Company will indemnify the underwriters, their
officers and directors and each Person who controls the underwriters (within the
meaning of the Securities Act) to the same extent as provided above with respect
to the indemnification of the Holders of Registrable Securities.
(b) In connection with any registration statements for a
Registration in which a Holder of Registrable Securities is participating, each
such Holder will furnish to the Company in writing such customary information as
the Company reasonably requests for use in connection with any such registration
statement or prospectus (the "Seller's Information") and, to the fullest extent
permitted by applicable law, will indemnify the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act) against any and all Claims to which each such indemnified party
may become subject under the Securities
8
9
Act insofar as such Claim arose out of (i) any untrue or alleged untrue
statement of material fact contained, on the effective date thereof, in any such
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto, (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements regarding Seller's Information therein not misleading or (iii) any
failure on the part of the Holder to comply with applicable securities laws;
provided, that with respect to a Claim arising pursuant to clause (i) or (ii)
above, the material misstatement or omission is contained in or relates to such
Seller's Information or information regarding the Holder; provided, further,
that the obligation to indemnify will be individual to each Holder and will be
limited to the amount of proceeds received by such Holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (but the failure to provide such notice shall
not release the indemnifying party of its obligation under paragraphs (a) and
(b), unless and then only to the extent that, the indemnifying party has been
prejudiced by such failure to provide such notice) and (ii) unless in such
indemnified party's reasonable judgment, based on written advice of counsel, a
conflict of interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party, based on
written advice of counsel, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnifying party shall not be liable to indemnify an
indemnified party for any settlement, or consent to judgment of any such action
effected without the indemnifying party's written consent (but such consent will
not be unreasonably withheld). Furthermore, the indemnifying party shall not,
except with the prior written approval of each indemnified party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
indemnified party of a release from all liability in respect of such claim or
litigation without any payment or consideration provided by each such
indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under clauses (a) and (b) above in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Company, the underwriters, the
sellers of Registrable Securities and any other sellers participating in the
registration statement in connection with the statement or omission which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company, the
underwriters, the sellers of Registrable Securities and any other sellers
participating in the registration statement
9
10
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the sellers of Registrable Securities and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
of such indemnified party and will survive the transfer of the Registrable
Securities.
9. Participation in Underwritten Registrations. No Holder may
participate in any registration hereunder which is underwritten unless such
Holder (a) agrees to sell such Holder's securities on the basis provided in any
underwriting arrangements approved by the Holder or Holders entitled hereunder
to approve such arrangements, (b) as expeditiously as possible notifies the
Company of the occurrence of any event as a result of which any prospectus
contains an untrue statement of material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (c) completes and executes all custody agreements,
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
10. Transfer of Registration Rights. The rights granted to any
Holder under this Agreement may be assigned to any permitted transferee of
Registrable Securities, in connection with any transfer or assignment of
Registrable Securities by a Holder; provided, however, that: (a) such transfer
is otherwise effected in accordance with applicable securities laws, (b) if not
already a party hereto, the assignee or transferee agrees in writing prior to
such transfer to be bound by the provisions of this Agreement applicable to the
transferor, and (c) EIS shall act as agent and representative for such Holder
for the giving and receiving of notices hereunder.
11. Information by Holder. Each Holder shall furnish to the
Company such written information regarding such Holder and any distribution
proposed by such Holder as the Company may reasonably request in writing and as
shall be reasonably required in connection with any registration, qualification
or compliance referred to in this Agreement and shall promptly notify the
Company of any changes in such information.
12. Exchange Act Compliance. The Company shall comply with all
of the reporting requirements of the Exchange Act then applicable to it and
shall comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Registrable Securities. The Company shall cooperate with each Holder in
supplying such information as may be necessary for such Holder to complete and
file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
10
11
13. Termination of Registration Rights. All registration
rights and obligations under this Agreement shall terminate and be of no further
force and effect, as to any particular Holder, at such time as all Registrable
Securities held by such Holder can be sold within a three month period without
compliance with the registration requirements of the Securities Act pursuant to
Rule 144 (including Rule 144(k)) promulgated thereunder.
14. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the Holders of Registrable Securities in
this Agreement without the prior written consent of a majority in interest of
such Registrable Securities.
(b) Remedies. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement; provided, however, that in no event shall any Holder have the right
to enjoin, delay or interfere with any offering of securities by the Company.
(c) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only with the
prior written consent of the Company and Holders of at least 50% of the
Registrable Securities; provided that without the prior written consent of all
the Holders, no such amendment or waiver shall reduce the foregoing percentage
required to amend or waive any provision of this Agreement.
(d) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto,
and shall inure to the benefit and be enforceable by each Holder of Registrable
Securities from time to time. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
Holders of Registrable Securities are also for the benefit of, and enforceable
by, any permitted transferee of Registrable Securities in accordance with
Section 10 hereof.
(e) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
11
12
(f) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the laws of
the State of New York without regard to principles of conflicts of laws, except
that all issues concerning the relative rights of the Company and its
shareholders shall be governed by the Delaware General Corporation Law, without
giving effect to the principles thereof relating to conflicts of laws.
(i) Notices. All notices, demands and requests of any kind to
be delivered to any party in connection with this Agreement shall be in writing
and shall be deemed to have been duly given if personally delivered or if sent
by nationally-recognized overnight courier or by registered or certified
airmail, return receipt requested and postage prepaid or by facsimile
transmission, addressed as follows:
(i) if to the Company, to:
Atrix Laboratories, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000--0000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxx
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) if to EIS, to:
Elan International Services, Ltd.
000 Xx. Xxxxx Xxxxx
Xxxxxx, Xxxxxx Xxxxxx
Xxxxxxx, XX 04
Facsimile: (000) 000-0000
Attention: President
12
13
with a copy to:
Xxxxx Xxxxxxxxxxx LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
(j) Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof and supersedes all prior agreements relating to such
subject matter.
13
14
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
ATRIX LABORATORIES, INC.
By: /s/ XXXXX X. XXXXXXX
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ XXXXX XXXXXX
----------------
Name: Xxxxx Xxxxxx
Title: President and Chief Financial Officer
