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EXHIBIT 10
Merger Agreement dated September 27, 1995
entered into by and among
Atrix Laboratories, Inc.,
Vipont Royalty Income Fund, Ltd. and Atrix, L.P.
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") dated as of
September 27, 1995, by and among Atrix Laboratories, Inc., a Delaware
corporation (the "Company"), Atrix, L.P., a Colorado limited partnership
("Atrix, L.P."), and Vipont Royalty Income Fund, Ltd., a Colorado limited
partnership (the "Partnership").
W I T N E S S E T H:
WHEREAS, the Company wishes to acquire all of the assets of the
Partnership; and
WHEREAS, the Company is the sole limited partner of Atrix, L.P., and
AtrixSub, Inc., a Colorado corporation and a wholly owned subsidiary of the
Company ("AtrixSub"), is the sole general partner of Atrix, L.P.; and
WHEREAS, Atrix, L.P. has been formed solely for the purpose of
facilitating such acquisition; and
WHEREAS, the Company desires to merge the Partnership with and into
Atrix, L.P., pursuant to Colorado law, with Atrix, L.P. being the surviving
entity (the "Merger") as set forth in the registration statement of the Company
on Form S-4, Registration No. 33-61937, including all amendments thereto (the
"Registration Statement"), filed with the Securities and Exchange Commission
(the "SEC") pursuant to the Securities Act of 1933, as amended (the "Act"), of
which the Prospectus/Proxy Statement of the Company, dated August 18, 1995 (the
"Prospectus/Proxy Statement"), is a part; and
WHEREAS, Section 210 of the Colorado Uniform Limited Partnership Act
of 1981, as amended ("CULPA") authorizes the merger of two or more Colorado
limited partnerships; and
WHEREAS, Atrix, L.P.'s Certificate of Limited Partnership and
Agreement of Limited Partnership and resolutions adopted by AtrixSub authorize
this Agreement and the consummation of the Merger; and
WHEREAS, the Partnership's Certificate of Limited Partnership and
Amended and Restated Agreement of Limited Partnership and resolutions adopted
by the Company, as the sole general partner of the Partnership, authorize this
Agreement and the consummation of the Merger.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties to this Agreement covenant and agree
as follows:
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ARTICLE I
THE MERGER
Section 1.01. THE MERGER; SURVIVING ENTITY. Subject to the terms and
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.02 below), the Partnership shall be merged with and into Atrix, L.P.,
pursuant to Section 210 of CULPA, and the separate existence of the Partnership
shall cease. Atrix, L.P. shall be the surviving entity (the "Surviving
Partnership") and shall continue to be governed by CULPA.
Section 1.02. EFFECTIVE TIME. In accordance with Section 210(4) of
CULPA, the Merger shall become effective upon the filing of the Partnership's
Certificate of Cancellation with the Secretary of State of the State of
Colorado (the "Effective Time"). All other filings or recordings required by
Colorado law in connection with the Merger shall also be made.
Section 1.03. EFFECT OF THE MERGER. The Merger shall have the
effects set forth in Section 210 of CULPA.
ARTICLE II
THE SURVIVING PARTNERSHIP
Section 2.01. NAME. The name of the Surviving Partnership shall be
Atrix, L.P.
Section 2.02. CERTIFICATE OF LIMITED PARTNERSHIP AND AGREEMENT OF
LIMITED PARTNERSHIP. The Certificate of Limited Partnership and Agreement of
Limited Partnership of Atrix, L.P. as in effect immediately prior to the
Effective Time shall be the Certificate of Limited Partnership and Agreement of
Limited Partnership of the Surviving Partnership unless and until amended in
accordance with its terms and applicable law.
Section 2.03. GENERAL PARTNER. The general partner of Atrix, L.P.
immediately prior to the Effective Time shall continue as the general partner
of the Surviving Partnership and remain the general partner until the general
partner withdraws or is removed in accordance with the provisions of the
Agreement of Limited Partnership of Atrix, L.P.
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ARTICLE III
CONVERSION OF PARTNERSHIP INTERESTS
Section 3.01. CONVERSION OF LIMITED PARTNER INTERESTS.
(a) At the Effective Time, each Partnership Unit ("Unit")
shall be converted, into 106.54498 shares of the Company's common
stock, $.001 par value per share (the "Shares" or "Common Stock").
(b) The Shares will be allocated among the Limited
Partners in proportion to their ownership interest in the Partnership.
No fractional Shares will be issued. Each Limited Partner who would
otherwise be entitled to a fractional share of Common Stock will
instead receive a cash payment equal to the fraction multiplied by
$6.39167.
(c) For federal income tax purposes, the conversion of
the Units in the Partnership pursuant to this Article III shall be
deemed a distribution in liquidation of the Partnership pursuant to
the terms of the Amended and Restated Agreement of Limited Partnership
of the Partnership (the "Partnership Agreement"), in accordance with
the capital accounts of the Limited Partners.
Section 3.02. ISSUANCE OF SHARES.
(a) The Company shall designate an exchange agent (the
"Exchange Agent"), which may be an employee of the Company, to act as
such in connection with the issuance of certificates representing
Common Stock pursuant to this Agreement.
(b) As soon as practicable after the Effective Time, the
Company shall cause the Exchange Agent to distribute to each Limited
Partner certificates representing the number of shares of Common Stock
to which such Limited Partner is entitled pursuant to Section 3.01 of
this Agreement.
Section 3.03. GENERAL PARTNER INTERESTS. In connection with the
Merger, the Company will not receive Shares or any other consideration for its
general partner interest and such interest will be distributed to the Limited
Partners on a pro rata basis.
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ARTICLE IV
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
Section 4.01. TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective
Time, Atrix, L.P. shall continue in existence as the Surviving Partnership, and
without further transfer, succeed to and possess all the rights, privileges and
powers of the Partnership, and all the assets and property of whatever kind and
character of the Partnership shall vest in Atrix, L.P. without further act or
deed; thereafter, Atrix, L.P., as the Surviving Partnership, shall be liable
for all of the liabilities and obligations of the Partnership, and any claim or
judgment against the Partnership may be enforced against Atrix, L.P., as the
Surviving Partnership, in accordance with Section 210 of CULPA.
Section 4.02. FURTHER ASSURANCES. If at any time Atrix, L.P. shall
consider or be advised that any further assignment, conveyance or assurance is
necessary or advisable to vest, perfect or confirm of record in the Surviving
Partnership the title to any property or right of the Partnership, or otherwise
to carry out the provisions hereof, the Company, as the general partner of the
Partnership, as of the Effective Time shall execute and deliver any and all
proper deeds, assignments and assurances, and do all things necessary and
proper to vest, perfect or convey title to such property or right in the
Surviving Partnership and otherwise to carry out the provisions hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP
The Partnership represents and warrants to Atrix, L.P. and the Company
as follows:
Section 5.01. VALIDITY OF ACTIONS. The Partnership (i) is a limited
partnership duly formed, validly existing and in good standing under the laws
of the State of Colorado, (ii) has the authority to conduct its business as
currently conducted and to own and operate the properties which it now owns and
operates, (iii) is qualified to do business in all jurisdictions in which such
qualification is necessary, and (iv) has full power and authority to enter into
this Agreement and to carry out all acts contemplated by it. This Agreement
has been duly executed and delivered on behalf of the Partnership, and has
received all necessary authorization and is a legal, valid and binding
obligation of the Partnership, enforceable against the Partnership in
accordance with its terms. The execution and delivery of this Agreement and
consummation of the transactions contemplated by it will not violate any
provision of the Certificate of Limited Partnership or the Amended and Restated
Agreement of Limited Partnership of the Partnership nor violate, conflict with
or result in any breach of any of the terms, provisions or conditions of, or
constitute a default or cause acceleration of, any indebtedness under any
agreement or instrument to which the Partnership is a party or by which it or
its assets may be bound, or cause a breach of any
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applicable federal or state law or governmental regulation, or any applicable
order, judgment, writ, award, injunction or decree of any court or governmental
instrumentality.
Section 5.02. PARTNERSHIP'S FINANCIAL STATEMENTS. The financial
statements and schedules of the Partnership, together with related notes (the
"Financial Statements"), set forth in the Registration Statement of the
Company, fairly present, on the basis stated in the Registration Statement, the
financial position of the Partnership at the date or for the periods specified
in the Registration Statement. The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis ("GAAP"), except to the extent stated therein.
Section 5.03. NO MISSTATEMENTS. The representations of the
Partnership contained in this Agreement and the information supplied by the
Partnership for inclusion in the Registration Statement and the
Prospectus/Proxy Statement do not contain any untrue statement of a material
fact or omit to state any fact necessary to make such representations or
information not materially misleading.
Section 5.04. NO MATERIAL ADVERSE CHANGE. Since the respective dates
as to which information is given in the Registration Statement and the
Prospectus/Proxy Statement with respect to the Partnership, and except as
described in the Registration Statement or the Prospectus/Proxy Statement,
there have been no changes in the business, operations, properties, assets or
the prospects or condition, financial or otherwise, of the Partnership which
would, in the aggregate, have a material adverse effect on the business,
properties, prospects, profitability, assets or financial condition of the
Partnership.
Section 5.05. TITLE TO ASSETS. The Partnership has good and
marketable title to the assets reflected in the most recent balance sheet (the
"Balance Sheet") included in the Financial Statements with respect to the
Partnership, and will hold good and marketable title to such assets, and any
assets acquired by the Partnership prior to the Effective Time, as of the
Effective Time, except for assets disposed of in the ordinary course of
business. Such assets, together with the related goodwill and rights of the
Partnership as a going concern, tangible and intangible, are collectively
referred to as the "Assets." Except as otherwise disclosed in the Balance
Sheet or related notes accompanying it, all of the Assets are owned free and
clear of any and all adverse claims, security interests, charges or other
encumbrances or restrictions of every nature, except liens for current taxes
not yet due and payable or landlords' liens as provided for in the relevant
leases or by applicable law.
Section 5.06. LIABILITIES OF THE PARTNERSHIPS. The Partnership has
no material liabilities, contingent or otherwise, including, without
limitation, liabilities for state or federal income, withholding or other
taxes, except to the extent reflected, reserved against, or provided for in the
Balance Sheet, and except for any material liabilities disclosed in the
Prospectus/Proxy Statement or any other obligations incurred after June 30,
1995 in the ordinary course of business which subsequently incurred obligations
are of an amount and nature as to be capable
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of being discharged from the operations of the Partnership without requiring
additional equity or borrowing.
Section 5.07. TAXES. The Partnership has filed timely all federal,
state and local tax returns which it is required to file, has provided to its
Limited Partners all required schedules, K-1's and such other tax forms as may
be required by federal, state or local authorities, and has no outstanding
liability for any federal, state or local taxes or interest or penalties
thereon, whether disputed or not, except taxes not yet payable which have been
provided for in accordance with GAAP and are disclosed in the Financial
Statements.
Section 5.08. ACTIONS PENDING. Except as disclosed in the
Prospectus/Proxy Statement: (i) there are no actions, suits, proceedings or
claims pending or threatened against the Partnership or the General Partner
which, if determined adversely to such Partnership, could (A) have a material
adverse effect on the Partnership, the Assets or the business of the
Partnership when taken as a whole, or (B) prevent or delay the consummation of
any of the transactions contemplated by this Agreement; (ii) the Partnership,
to the best of its knowledge, is not the subject of any pending or threatened
investigation relating to any aspect of the Partnership's operations by any
federal, state or local governmental agency or authority; and (iii) the
Partnership, to the best of its knowledge, is not and has not been the subject
of any formal or informal complaint, investigation or inspection under the
Equal Employment Opportunity Act or the Occupational Safety and Health Act (or
their state or local counterparts) or by any other federal, state or local
authority.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF ATRIX, L.P.
Atrix, L.P. represents and warrants to the Partnership as follows:
Section 6.01. VALIDITY OF ACTIONS. Atrix, L.P. (i) is duly
organized, validly existing and in good standing under the laws of the State of
Colorado, (ii) has the authority to conduct its business as currently
conducted, (iii) is qualified to do business in all jurisdictions in which such
qualification is necessary, and (iv) has full power and authority to enter into
this Agreement and to carry out all acts contemplated by it. This Agreement
has been duly executed and delivered on behalf of Atrix, L.P., has received all
necessary authorization and is a legal, valid and binding obligation of Atrix,
L.P., enforceable against Atrix, L.P. in accordance with its terms. The
execution and delivery of this Agreement and consummation of the transactions
contemplated by it will not violate any provision of the Certificate of Limited
Partnership or the Agreement of Limited Partnership of Atrix, L.P. nor violate,
conflict with or result in any breach of any of the terms, provisions or
conditions of, or constitute a default or cause acceleration of, any
indebtedness under any agreement or instrument to which Atrix, L.P. is a party
or by which it or its assets may be bound, or cause a breach of any applicable
federal or state law or regulation, or any applicable order, judgment, writ,
award, injunction or decree of any court or governmental instrumentality.
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Section 6.02. MISSTATEMENTS. The representations of Atrix, L.P.
contained in this Agreement and the information regarding Atrix, L.P. contained
in the Registration Statement and the Prospectus/Proxy Statement do not contain
any untrue statement of a material fact or omit to state any fact necessary to
make such representations or information not materially misleading.
ARTICLE VII
COVENANTS OF THE PARTIES
Section 7.01. PROHIBITED ACTS. Pending consummation of the Merger or
prior to termination of this Agreement, the Partnership agrees that, without
prior written consent of Atrix, L.P., given in a letter which specifically
refers to this Section of the Agreement, the Partnership shall not:
(a) perform any act or omit to take any action that would
make any of its representations made above or any information
pertaining to it in the Registration Statement or the Prospectus/Proxy
Statement inaccurate or materially misleading as of the Effective
Time;
(b) enter into any commitment, contract or other
transaction in any way affecting any of the Partnership's business,
except to carry out its business in the ordinary course, and as
contemplated by this Agreement or in the Prospectus/Proxy Statement;
(c) make any loans or advances to, or investments in, any
other corporation, partnership or other legal entity or to any other
persons except in the ordinary course of business;
(d) borrow money for any purpose or agree to become
contingently liable, by guaranty or otherwise, for the obligations or
indebtedness of any other person other than in the ordinary course of
business; or
(e) mortgage, pledge, encumber, sell, lease or transfer
any of the Assets other than in the ordinary course of business.
Section 7.02. NOTICE. Pending the consummation of the Merger or
prior to termination of this Agreement, each party agrees that it will promptly
advise the other of the occurrence of any condition or event which would make
any of its representations contained in this Agreement or the Prospectus/Proxy
Statement inaccurate, incorrect, or materially misleading.
Section 7.03. ADDITIONAL DOCUMENTS. At the request of any party,
each party will execute and deliver any additional documents and perform in
good faith such acts as reasonably may be required in order to consummate the
transactions contemplated by this Agreement.
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ARTICLE VIII
CONDITIONS TO THE MERGER
The obligations of the Company and Atrix, L.P., on the one hand, and
the Partnership on the other hand, to consummate the Merger shall be subject to
compliance with or satisfaction of the following conditions:
Section 8.01. COMPLIANCE. Atrix, L.P. and the Partnership shall have
complied with all of the covenants and agreements in this Agreement on its part
to be complied with as of or prior to the Effective Time.
Section 8.02. PARTNERSHIP APPROVALS. Limited Partners holding an
aggregate of at least 2,588 Units, which constitutes an majority of the
outstanding Units, shall have approved the Merger.
Section 8.03. CONSENTS OBTAINED. All necessary consents, waivers,
approvals, authorizations or orders required to be obtained, and the making of
all filings required to be made by any party to the Merger for the
authorization, execution and delivery of this Agreement and the consummation of
the transactions contemplated thereby on or before (and remain in effect at)
the Effective Time shall have been obtained or made.
Section 8.04. NO MATERIAL ADVERSE CHANGE. Since the respective dates
as to which information is given in the Registration Statement and the
Prospectus/Proxy Statement, there shall not have occurred or been threatened
any material adverse changes in the overall business or prospects of the
Partnership or in the tax or other regulatory provisions applicable to the
Partnership or Atrix, L.P., and Atrix, L.P. shall not have become aware of any
facts that, in its sole judgment, have or may have a material effect, whether
adverse or otherwise, on the Partnership, taken as a whole, or the value to
Atrix, L.P. of the properties of the Partnership, taken as a whole.
Section 8.05. NO DECLARATIONS. At the Effective Time, there shall
be no declaration of suspension of trading in, or limitation on prices for,
securities generally on The Nasdaq Stock Market, declaration of a banking
moratorium by federal or state authorities or any suspension of payments by
banks in the United States (whether mandatory or not) or of the extension of
credit by lending institutions in the United States, or commencement of war,
armed hostility, or other international or national calamity directly or
indirectly involving the United States, which war, hostility or calamity, in
the sole judgment of Atrix, L.P., would have a material adverse effect on the
business objectives of Atrix, L.P., or, in the case of any of the foregoing
existing on the date of the Prospectus/Proxy Statement, any material
acceleration or worsening thereof.
Section 8.06. EFFECTIVENESS OF REGISTRATION STATEMENT. At or prior
to the Effective Time, the Registration Statement shall have been declared
effective, no stop order suspending
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the effectiveness of the Registration Statement shall have been issued, no
proceedings for such purpose shall have been initiated, and all necessary
approvals under state securities or blue sky laws shall have been received.
Section 8.07. PROSPECTUS/PROXY STATEMENT. All other conditions to
the Merger set forth in the Prospectus/Proxy Statement shall have been
satisfied or waived.
ARTICLE IX
OTHER AGREEMENTS
WAIVER BY GENERAL PARTNER. Immediately prior to the Effective Time,
the Company, as general partner of the Partnership shall waive all rights to
(i) any fees not accrued to the Effective Time, and (ii) any proceeds from the
sale or liquidation of any property of the Partnership to which the Company
would have been entitled pursuant to the Partnership Agreement.
ARTICLE X
TERMINATION; AMENDMENT; WAIVER
Section 10.01. TERMINATION. This Agreement and the transactions
contemplated hereby may be terminated at any time prior to the filing of the
Certificate with the Secretary of State of the State of Colorado, (i) by mutual
consent of Atrix, L.P. and the Partnership, (ii) by action of the Partnership
in the event of a failure of a condition to the obligations of Atrix, L.P. set
forth in Article VIII of this Agreement, (iii) by action of Atrix, L.P. in the
event of a failure of a condition to the obligations of the Partnership set
forth in Article VIII of this Agreement, or (iv) by action of Atrix, L.P. or
the Partnership in the event that the Merger is not consummated prior to
December 31, 1995 or such later date as the parties shall mutually agree in
writing.
Section 10.02. EFFECT OF TERMINATION. If this Agreement is
terminated pursuant to Section 10.01, this Agreement shall become void and of
no effect with no liability on the part of any party hereto.
Section 10.03. AMENDMENT. The parties hereto may, by written
agreement, amend this Agreement at any time prior to the Effective Time, such
amendment to be approved by Atrix, L.P., the Company and the Partnership;
provided that, after the approval of the Merger by the Limited Partners holding
a majority of the Units of the Partnership, no amendment shall be made which
alters or changes (i) the amount or kind of consideration which the Limited
Partners are entitled to receive upon conversion of the Units of the
Partnership or (ii) the terms and conditions of this Agreement if such
alteration or change would have an adverse effect on the Limited Partners.
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Section 10.04. WAIVER. At any time prior to the Effective Time, any
party to this Agreement may extend the time for the performance of any of the
obligations or other acts of any other party hereto, or waive compliance with
any of the agreements of any other party or with any condition to the
obligations hereunder, in each case only to the extent that such obligations,
agreements and conditions are intended for its benefit.
ARTICLE XI
MISCELLANEOUS
Section 11.01. EXPENSES. If the Merger becomes effective, all of the
expenses incurred in connection with the Merger shall be paid as specified in
the Prospectus/Proxy Statement.
Section 11.02. NOTICES. All notices or other communications required
or permitted under the terms of this Agreement by any party shall be made in
writing and shall be delivered by first class mail or by personal delivery,
postage or fees prepaid, to the other parties at 0000 Xxxxxxxx Xxxxx, Xxxx
Xxxxxxx, Xxxxxxxx 00000, with a copy to Xxxxx Xxxx, Suite 2900, 000 Xxxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, or to such other
address as any of the parties hereto may designate by notice to the others.
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Section 11.03. NON-ASSIGNABILITY. This Agreement shall not be
assignable by any of the parties to this Agreement.
Section 11.04. ENTIRE AGREEMENT. This Agreement contains the
parties' entire understanding and agreement with respect to its subject matter,
and any and all conflicting or inconsistent discussions, agreements, promises,
representations and statements, if any, between the parties or their
representatives that are not incorporated in this Agreement shall be null and
void and are merged into this Agreement.
Section 11.05. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall constitute an original, but all of
which together shall constitute a single agreement.
Section 11.06. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Colorado, without
giving effect to conflicts of law principles.
Section 11.07. HEADINGS. The various section headings are inserted
for purposes of reference only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof.
Section 11.08. GENDER; NUMBER. All references to gender or number in
this Agreement shall be deemed interchangeably to have a masculine, feminine,
neuter, singular or plural meaning, as the sense of the context requires.
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Section 11.09. SEVERABILITY. The provisions of this Agreement shall
be severable, and any invalidity, unenforceability or illegality of any
provision or provisions of this Agreement shall not affect any other provision
or provisions of this Agreement, and each term and provision of this Agreement
shall be construed to be valid and enforceable to the full extent permitted by
law.
Section 11.10. AUTHORIZATION. The Company and AtrixSub, as the sole
general partner of the Partnership and Atrix, L.P., respectively, (a) shall be
authorized, at such time in their full discretion as they deem appropriate, to
execute, acknowledge, verify, deliver, file and record, for and in the name of
the Partnership or Atrix, L.P., as the case may be, and, to the extent
necessary, the limited partners of the Partnership or Atrix, L.P., as the case
may be, any and all documents and instruments, and (b) shall do and perform any
and all acts required by applicable law or which the Company or AtrixSub, as
the case may be, deems necessary or advisable to effectuate the Merger.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by an officer duly authorized to do so, all as of the day and year
first above written.
ATRIX, L.P., a Colorado limited partnership
By: AtrixSub, Inc., a Colorado corporation, its
sole general partner
By /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, President
ATRIX LABORATORIES, INC., a Delaware
corporation
By /s/ Xxxx X. Xxxxxx
---------------------------------------------
Xxxx X Xxxxxx, Vice Chairman and
Chief Executive Officer
VIPONT ROYALTY INCOME FUND, LTD., a
Colorado limited partnership
By: Atrix Laboratories, Inc., a Delaware
corporation, its sole general partner
By /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, Vice Chairman and
Chief Executive Officer
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