1
EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the 8th
day of August, 2000, by and between ATRIX LABORATORIES, INC., a Delaware
corporation (the "Company"), and PFIZER INC, a Delaware corporation
("Investor").
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 hereby purchases and the Company hereby sells and
issues to Investor 447,550 shares of Common Stock (the
"Shares") for the purchase price per share equal to $11.17193,
which is one hundred and ten percent (110%) of the average of
the closing prices reported by the NASDAQ National Market
System for the ten (10) consecutive trading days prior to, but
not including, the Closing Date, for an aggregate purchase
price of Five Million Dollars ($5,000,000) (the "Purchase
Price").
1.2. Closing. The purchase and sale of the Common Stock shall take
place at the offices of the Company, 0000 Xxxxxxxx Xxxxx, Xxxx
Xxxxxxx, Xxxxxxxx 00000, at 10 A.M., concurrently with the
execution of this Agreement, or at such other times and places
as the Company and Investor mutually agree upon, verbally or
in writing (which times and places are designated as the
"Closing"). At the Closing, the Company shall instruct its
transfer agent, 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 the Company in immediately available funds
by wire transfer to a bank account designated by the Company
on the Closing Date or, if not so designated, then by
certified or official bank check payable in immediately
available funds to the order of the Company in such amount.
1.4. Definition.
(a) The following terms, as used herein, have
the following meanings:
"Closing Date" means the date of the
Closing.
"Common Stock" means the Common Stock, par
value $.001 per share of the Company.
"Material Adverse Effect" means a material
adverse effect on the condition (financial
or otherwise), business, assets, results of
operations of a corporation and its
subsidiaries taken as a whole.
2
"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 the Company. The Company hereby
represents and warrants to Investor that:
2.1. Organization, Good Standing and Qualification. The Company 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. The Company 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 the Company consists
of:
(a) Preferred Stock. 5,000,000 shares of Preferred Stock,
of which (i) 200,000 shares have been designated
Series A Preferred Stock, par value $.001 per share,
of which there are no shares of Series A Preferred
issued and outstanding; and (ii) 20,000 shares of
Series A Convertible Exchangeable Preferred Stock ,
par value $.001 per share, of which there are 12,015
shares issued and outstanding.
(b) Common Stock. 25,000,000 shares of Common Stock, of
which 11,964,418 shares were issued and outstanding
on August 6, 2000.
2.3. Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary
for (i) its authorization, execution and delivery of the
Agreement, (ii) the performance of all obligations of the
Company 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 the Company, enforceable against the
Company in accordance with its terms, except as such
enforcement may be limited by applicable laws relating to
creditors' rights or principles of equity affecting the
availability of remedies.
2
3
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, will be issued in compliance with all
applicable federal and state securities laws.
2.5. SEC Filings. The Company has registered its Common Stock
pursuant to Section 12 of the 1934 Act, and the Common Stock
is quoted on the Nasdaq National Market. The Company has filed
all 1934 Act reports for a period of at least twelve (12)
months immediately preceding the offer or sale of the Shares.
The Company'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.
2.6. Litigation. Except as disclosed in the Company'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 the Company, threatened,
against or affecting the Company, or any of its properties,
which could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
2.7. No Default. Except as disclosed in the Company's filings with
the SEC, the Company 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 the Company'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,
2000, the Company has not incurred any liability or
obligation, contingent or otherwise, that taken as a whole, is
material in the aggregate to the Company, 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 the Company as of June 30, 2000. Since June 30, 2000, the
Company has conducted its business in the ordinary course of
business consistent with past practices, and except as
contemplated under this Agreement, 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 the Company.
3
4
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 is required on the part of the Company in connection
with the Company's valid execution, delivery or performance of
this Agreement, or the offer, sale or issuance of the Shares
by the Company, other than the filings that have been made
prior to the Closing, except that any notices of sale required
to be filed by the Company with the SEC under Regulation D of
the 1933 Act and filings required by the rules of the Nasdaq
Stock Market, or such post-closing filing 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. The Company is not in
violation of any applicable law, rule, regulation, judgment,
injunction, order or decree except for 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. The execution and delivery of this Agreement and
the Company'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, the Company's
Certificate of Incorporation or By-laws, or any contract,
agreement or instrument to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary or any of
their respective property if bound, except, in any such case,
for violations, conflicts or breaches which individually or in
the aggregate would not have a Material Adverse Effect.
2.12. Insurance. The Company has in full force and effect fire and
casualty insurance policies, with extended coverage, in
amounts customary for companies similarly situated to the
Company.
2.13. Environmental and Safety Laws. The Company is not in violation
of any applicable statute, law or regulation relating to the
environment or occupational health and safety, except where
such violation could not reasonably be expected to have a
Material Adverse Effect, and to the best of its knowledge, no
material expenditures are or will be required in order to
comply with any such existing statute, law or regulation.
2.14. Legal Proceedings, Etc. There is no legal, administrative,
arbitration or other action or proceeding or governmental
investigations pending, or to the Company's knowledge
threatened against the Company which could reasonably be
expected 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.
4
5
3. Representations and Warranties of Investor. Investor hereby represents
and warrants to the Company 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 the
Company, 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 laws relating to creditors' rights or principles of
equity affecting the availability of remedies.
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, transfer or grant
participation to such person or to any third person, with
respect to any of the Shares.
3.4. Confidentiality. Investor hereby represents, warrants and
covenants that it shall maintain as confidential all
information provided to it by the Company hereunder.
3.5. 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 the Company 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. In this connection 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 the Company that
an exemption from registration is available, and fully
understands and agrees that it must bear the total economic
risk of its purchase for an indefinite period of time
5
6
because of the restricted nature of the Shares. Investor
understands that the Company 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.
3.6. Legends. Investor acknowledges that the certificates
evidencing the Shares shall bear the following or
substantially similar legend or 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 THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER SUCH ACT OR ACTS."
3.7. Removal of Legends
(a) Any legend endorsed on a certificate pursuant to
Subsection 3.6(a) 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 may
be transferred in compliance with Rule 144
promulgated under the 1933 Act, or (iii) if the
holder of such shares shall have provided the Company
with an opinion of counsel, in form and substance
acceptable to the Company 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 Subsection 3.6
shall be removed if the Company receives an order of
the appropriate state authority authorizing such
removal or if the holder of such shares provides the
Company with an opinion of counsel, in form and
substance acceptable to the Company and its counsel,
stating that such state legend may be removed.
3.8. Accredited Investor. Investor is an "accredited investor" (as
defined in Rule 501(a) under the 0000 Xxx) 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 the Company.
6
7
3.9. Consents and Approvals. No consent, approval, qualification,
order or authorization of, or filing with, any local, state or
federal governmental authority or any third party is required
on the part of the Investor in connection with Investor's
valid execution, delivery or performance of this Agreement.
3.10. 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 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.
3.11. 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. The Company will file reports in
compliance with the Exchange 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 any Company Shares without registration, and will, at
its own expense, upon the request of the Investor, deliver to the
Investor a certificate, signed by the Company's principal financial
officer, stating (a) the Company's name, address and telephone number
(including area code), (b) the Company's Internal Revenue Service
identification number, (c) the Company'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 the Company, and (e)
whether the Company has filed the reports required to be filed under
the Exchange 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 the
Company is not required to file reports in compliance with either
Section 13 or Section 15(d) of the Exchange Act, the Company at its
expense will, upon the written request of the Investor, make available
adequate current public information with respect to the Company within
the meaning of paragraph (c)(2) of Rule 144.
5. Lock-Up. Notwithstanding anything to the contrary contained in this
Agreement, Investor shall not sell, contract to sell, grant any option
to purchase, transfer the economic risk of ownership in, make any short
sale of, pledge or otherwise transfer or dispose of any Shares for a
period of three (3) years after the Closing Date.
6. Miscellaneous.
6.1. 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
7
8
expressly acknowledges and confirms the representations,
warranties and information set forth in Sections 3.5, 3.6 and
3.8 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.
6.2. 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.
6.3. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York
(irrespective of its choice of law principles).
6.4. 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.
6.5. 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.
6.6. Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and
shall be deemed effectively given upon personal delivery to
the party to be notified, or if sent by telex or telecopier,
upon receipt of the correct answerback, or upon deposit with
the United States Post Office, by registered or certified
mail, or upon deposit with an overnight air courier, in each
case postage prepaid and addressed to the party to be notified
at the address as follows, or at such other address as such
party may designate by ten days advance written notice to the
other party:
If to the Company:
Atrix Laboratories, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxx, Vice President of
New Business Development
Fax: (000) 000-0000
Phone: (000) 000-0000
8
9
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Phone: (000) 000-0000
If to Investor:
Pfizer Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
6.7. 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 the Company 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. The
Company 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 the
Company or any of its officers, employees or representatives
is responsible.
6.8. Expenses. The Company and the Investor shall pay their
respective costs and expenses incurred with respect to the
negotiation, execution, delivery and performance of this
Agreement.
6.9. 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 the Company and the Investor. Any amendment or
waiver effected in accordance with this paragraph shall be
binding on the Investor and the Company.
6.10. 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.
6.11. 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
9
10
upon by either party intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
6.12. Other Agreements. The Company will not enter into any other
agreement with respect to its securities which violates the
rights granted to the Investor in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATRIX LABORATORIES, INC. PFIZER INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxx, Xx.
---------------------------------- --------------------------------
Xxxxx X. Xxxxxxx, Chairman and Xxxxxx X. Xxxxx, Xx.
Chief Executive Officer Senior Vice President
10
