EXHIBIT 10.1
AMENDMENT NO. 1 TO
STOCKHOLDERS AND REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO THE STOCKHOLDERS AND REGISTRATION RIGHTS AGREEMENT
(this "Amendment") made effective as of the 1st day of September, 2000 (the
"Effective Date") by and among CollaGenex Pharmaceuticals, Inc., a Delaware
corporation, with its principal place of business at 00 Xxxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000 (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 (the "Stockholders Agreement"); and
WHEREAS, the Company, the Investor and the Purchasers desire to 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 premises 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 5(b) of the Stockholders Agreement entitled
"Shelf Registration," subsection (i), is hereby amended to add the following to
the end thereof:
"With respect only to the issuance of Securities that represent dividends
on shares of the Series D Preferred Stock to be payable by the Corporation
in connection with each of the December 29, 2000, June 29, 2001 and
December 28, 2001 Dividend Declaration Dates as set forth in the following
table, the following paragraph shall govern the registration of such
Securities in lieu of the foregoing paragraph and such foregoing paragraph
shall be of no effect with respect to such Securities representing such
dividend payments.
The Corporation shall, at its cost and in accordance with the schedule set
forth below, notwithstanding the reference in the foregoing paragraph to
150 days, use its best efforts to file with the Commission and thereafter
shall use its best efforts to cause to be promptly declared effective, a
Shelf Registration Statement, if the Corporation is then eligible relating
to the offer and sale of such Securities by the Holders thereof from time
to time in accordance with the methods of distribution set forth in the
Shelf Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "Shelf Registration"); provided, however, that no Holder
of such Securities (other than Investor or any Purchaser) shall be entitled
to have such Securities covered by such Shelf Registration Statement unless
such Holder of Securities agrees in writing to be bound by all the
provisions of this Agreement applicable to such Holder of Securities.
Target Date to File
Dividend Declaration Target Date to Issue Registration Statement
Date Share Certificates on Form S-3
-------------------- -------------------- ----------------------
December 29, 2000 January 10, 2001 January 15, 2001
June 29, 2001 July 10, 2001 July 15, 2001
December 28, 2001 January 10, 2002 January 15, 2002
The issuance of stock certificates by the dates referred to in the above
table is contingent upon the timely declaration of such dividends by the
Corporation's Board of Directors and the timely issuance of certificates by
the Corporation's Transfer Agent and Registrar and the Corporation shall
use its best efforts to cause the timely declaration of such dividends and
the timely issuance of such certificates. Nothing in this subsection (i)
shall be deemed to (A) waive any rights that the Holders of the Series D
Preferred Stock have under the Certificate of Designation or, (B) except as
expressly set forth in Section 5(d) of this Agreement, obligate the Company
to register the Securities on other than a Form S-3 Registration Statement
or successor form.
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The filing of the Shelf Registration Statement by the dates referred to in
the above table is contingent upon the receipt of all requisite
authorizations, approvals and/or opinions from the Corporation's Board of
Directors, independent public accountants and outside legal counsel and
other unforeseen material circumstances affecting the Corporation such as a
pending material transaction that in the good faith judgment of the Board
of Directors of the Corporation would not be in the best interests of the
Corporation to be disclosed at the time of filing of the Shelf Registration
Statement because disclosure would have a material adverse effect on the
Company's business or prospects or the consummation of such transaction.
The Corporation shall use its best efforts to obtain or to cause to be
received all such requisite authorizations, approvals and/or opinions from
the Corporation's Board of Directors, independent public accountants and
outside legal counsel with respect to the filing of such Shelf Registration
Statement. The Corporation shall immediately notify the Holders in writing
of the existence of any circumstances that reasonably could be expected to
result in a delay of the filing of the Shelf Registration Statement;
provided, however, the specific details of the events or circumstances
giving rise to any potential delay need not be disclosed if such disclosure
would provide the recipient at the time of the disclosure with material
non-public information. In addition, upon the declaration of effectiveness
of each of the Shelf Registration Statements relating to the registration
of dividends in connection with the December 29, 2000, June 29, 2001 and
December 28, 2001 Dividend Declaration Dates, the Company shall cause its
corporate counsel to render an opinion to the Company's transfer agent and
registrar, opining as to the effectiveness of each such Registration
Statement, and the ability of each of the Holders to offer the related
Securities for resale without restrictive legend, assuming compliance by
each such Holder with all applicable securities laws and provided such
sales are made pursuant to the prospectus contained in each such Shelf
Registration Statement. Such counsel may withdraw its opinion with respect
to any such Shelf Registration Statement upon the failure to maintain the
current effectiveness thereof.
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.
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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/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
By:/s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
INVESTOR:
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OAKTREE PRINCIPAL OPPORTUNITIES FUND, L.P.
By: Oaktree Capital Management, LLC, its
general partner
By:/s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
By:/s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
[[SIGNATURE PAGE TO AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT]]
PURCHASERS:
----------
---------------------------------------
Xxxxxxx X. Xxxxxxxxx
MARQUETTE VENTURE PARTNERS II, L.P.
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title:
MVP II AFFILIATES FUND, L.P.
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title:
----------------------------------------
Xxxxxx X. Xxxxxx
PEBBLEBROOK PARTNERS LTD
By:
-------------------------------------
Name: Xxxxxx Xxxxxx
Title:
[Signature Page to Amendment No. 1 to Stockholders Agreement]
