As Filed with the Securities and Exchange Commission on June 28, 2000
Registration No. 333-35634
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
-----------------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CollaGenex Pharmaceuticals, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 52-1758016
---------------------------- ----------------------
(State or Other (I.R.S. Employer
Jurisdiction Identification Number)
of Incorporation or
Organization)
41 University Drive
Newtown, Pennsylvania 18940
(215) 579-7388
--------------------------------------------------------
(Address, Including Zip Code, and Telephone Number,
Including
Area Code, of Registrant's Principal Executive Offices)
Brian M. Gallagher, Ph.D.
President and Chief Executive Officer
CollaGenex Pharmaceuticals, Inc.
41 University Drive
Newtown, Pennsylvania 18940
(215) 579-7388
--------------------------------------------------------
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copy to:
David J. Sorin, Esq.
Tod K. Reichert, Esq.
Buchanan Ingersoll Professional Corporation
College Centre
650 College Road East
Princeton, New Jersey 08540
(609) 987-6800
---------------------------
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
---------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
--------------------------
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<PAGE>
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CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Amount Maximum Maximum Amount Of
Title of Shares To Be Aggregate Price Aggregate Registration
To Be Registered Registered Per Share(1) Offering Price Fee(2)
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Common Stock,
$.01 par value.. 39,188 $9.7187 $380,858.37 $100.55
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c). Such price is based upon the average of the high
and low price per share of the Registrant's common stock as reported on the
Nasdaq National Market on April 20, 2000.
(2) The Registrant previously paid such fee on April 26, 2000.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
The information in this prospectus is not complete and may be changed. The
selling shareholders may not sell their securities until the Registration
Statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS (Not Complete)
Dated: June 28, 2000
39,188 Shares
COLLAGENEX PHARMACEUTICALS, INC.
Common Stock
This prospectus relates to the public resale, from time to time, of an
aggregate of 39,188 shares of our common stock, $.01 par value, by certain
stockholders identified below in the section entitled "The Selling
Shareholders."
We will not receive any of the proceeds from the sale by the selling
shareholders of the shares covered by this prospectus.
Our common stock is traded on the Nasdaq National Market under the symbol
"CGPI." On April 20, 2000, the closing sale price of our common stock on the
Nasdaq National Market was $9.7187 per share.
Investing in the common stock involves a high degree of risk.
See "Risk Factors" beginning on page 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
June 28, 2000.
<PAGE>
PROSPECTUS TABLE OF CONTENTS
Page
CollaGenex Pharmaceuticals, Inc....................................... 2
Risk Factors.......................................................... 3
If Periostat is Not Accepted by Dental Health Care Providers and
Patients, Our Sales Will Suffer................................ 3
We Rely on Periostat for Most of Our Revenue..................... 3
We Anticipate Future Losses...................................... 3
We Have a Limited Marketing and Sales History and May Not be
Able to Successfully Market Our Product Candidates............. 3
If Our Intellectual Property Rights Are Compromised, We May Not
Be Able to Compete Effectively................................. 4
If We Lose Our Sole Supplier of Doxycycline or Our Current
Manufacturer of Periostat, Our Commercialization of Periostat
Will be Interrupted or Less Profitable......................... 6
A Reduction in Third-Party Reimbursements May Negatively Affect
the Sale of Our Products....................................... 6
If We Cannot Compete Effectively, Our Sales Will Decline......... 6
We May be Unable to Successfully Commercialize New Products...... 7
We Are Subject to Extensive Government Regulations............... 7
If Our Products Cause Injuries, We May Incur Significant Expense
and Liability.................................................. 7
If We Need Additional Financing, and Financing is Unavailable,
Our Ability to Develop and Commercialize Products and Our
Operations Will be Adversely Affected.......................... 8
Delaware Law, Our Certificate of Incorporation and Our By-Laws
Contain Provisions That Could Discourage a Takeover of Our
Company........................................................ 8
Because Our Executive Officers, Directors and Affiliated
Entities Own Approximately 42% of Our Capital Stock, They
Could Control Our Actions in a Manner That Conflicts With Our
Interests and the Interests of Our Other Stockholders.......... 8
Our Stock Price is Highly Volatile, and Therefore the Value of
Your Investment May Fluctuate Significantly.................... 8
Special Note Regarding Forward-Looking Information.................... 9
Use of Proceeds....................................................... 9
Selling Shareholders.................................................. 9
Plan of Distribution.................................................. 12
Legal Matters......................................................... 13
Experts............................................................... 13
Information Incorporated by Reference................................. 13
Where You Can Find More Information................................... 14
Indemnification of Directors and Officers............................. 15
<PAGE>
COLLAGENEX PHARMACEUTICALS, INC.
CollaGenex Pharmaceuticals, Inc. and its subsidiaries is a specialty
pharmaceutical company focused on providing innovative medical therapies to the
dental market. In September 1998, the FDA approved our first product, Periostat,
a prescription pharmaceutical capsule developed as an adjunct to scaling and
root planing, a mechanical procedure involving the removal of
bacteria-containing plaque, to promote gum and tooth attachment and to reduce
gum pocket depth in patients with adult periodontitis, a chronic infection
caused by plaque build up on teeth and the leading cause of adult tooth loss. We
are marketing Periostat to the dental community through our professional dental
pharmaceutical sales force of approximately 135 sales representatives and
managers. This sales force also co-promotes Vioxx, a prescription non-steroidal
anti-inflammatory drug developed by Merck & Co., Inc., and Denavir, a
prescription cold sore medication developed by SmithKline Beecham Consumer
Healthcare, L.P. We are actively pursuing other prescription products to market
to the dental community.
We are a Delaware corporation. We were incorporated and began operations
in 1992 under the name CollaGenex, Inc. and changed our name to CollaGenex
Pharmaceuticals, Inc. in April 1996. Our principal executive offices are located
at 41 University Drive, Newtown, Pennsylvania 18940, and our telephone number is
(215) 579-7388.
In this prospectus, the terms "CollaGenex," "we," "us" and "our" includes
CollaGenex Pharmaceuticals, Inc. and its subsidiaries.
-2-
<PAGE>
RISK FACTORS
If Periostat is Not Accepted by Dental Health Care Providers and Patients,
Our Sales Will Suffer. In September 1998, the FDA approved our first product,
Periostat, a prescription pharmaceutical capsule developed as an adjunct to
scaling and root planing, a mechanical procedure involving the removal of
bacteria-containing plaque, to promote gum and tooth attachment and to reduce
gum pocket depth in patients with adult periodontitis, a chronic infection
caused by plaque build up on teeth and the leading cause of adult tooth loss.
Our growth and success depends in large part on our ability to demonstrate to
dental practitioners the effectiveness of Periostat for the treatment of gum
disease. Further, our growth and success will depend on acceptance and continued
use of Periostat by dental health care providers and patients. If Periostat is
rejected by dental health care providers or patients for any reason, our sales
will suffer.
We Rely on Periostat for Most of Our Revenue. Our revenue and
profitability depend on our ability to successfully market and sell Periostat.
Although we plan to market complementary therapeutic products, whether developed
internally or by others, we expect that most of our revenue in the immediate
future will come from sales of Periostat. If we fail to successfully market and
sell Periostat on a consistent basis, we will be forced to identify and finance
alternative products to generate sufficient operating revenue.
We Anticipate Future Losses. From our founding in 1992 through the
commercial launch of Periostat in November, 1998, we had no revenue from sales
of our own products. For the quarter ended March 31, 2000, we experienced a net
loss of approximately $2.4 million. During the year ended December 31, 1999, we
experienced a net loss of approximately $14.6 million. From inception through
December 31, 1999, we have experienced an aggregate net loss of $52.5 million.
Our historical losses have resulted primarily from the expenses associated with
our pharmaceutical development program, clinical trials, the regulatory approval
process associated with Periostat and sales and marketing activities relating to
Periostat. We expect to incur significant future expenses, particularly with
respect to the sales and marketing of Periostat. As a result, we anticipate
losses through at least year-end 2000.
We Have a Limited Marketing and Sales History and May Not be Able to
Successfully Market Our Product Candidates. We have a limited history of
marketing, distributing and selling pharmaceutical products in the dental
market. We market and sell our products in the United States through a direct
sales force and internationally in collaboration with marketing partners upon
receipt of the necessary foreign regulatory approvals. In January 1999, we
trained a sales force of approximately 125 sales representatives and managers
and began to promote Periostat to the dental community. Further, we have entered
into agreements to market Periostat in certain countries in Europe, North Africa
and Canada, and we continue to evaluate partnering arrangements in countries
outside the United States. If we are unable to continue to recruit and retain
sales and marketing personnel, we will be unable to successfully expand our
sales and marketing efforts. Furthermore, if our foreign partners do not devote
sufficient resources to perform their contractual obligations with us, we may
not achieve our foreign sales goals.
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<PAGE>
If Our Intellectual Property Rights Are Compromised, We May Not Be Able to
Compete Effectively. Because of the substantial length of time and expense
associated with bringing new products through development to the marketplace,
the pharmaceutical industry places considerable importance on obtaining and
maintaining patent and trade secret protection for new technologies, products
and processes. Our success will depend in part on several factors, including,
without limitation: our ability to obtain and maintain patent protection for our
technologies, products and processes; our ability to preserve our trade secrets;
and our ability to operate without infringing the proprietary rights of other
parties both in the United States and in foreign countries.
Our core technology is licensed from the Research Foundation of the State
University of New York at Stony Brook ("SUNY") and is referred to herein as the
"SUNY License." Under the SUNY License we have an exclusive worldwide license to
SUNY's rights in certain patents and patent applications to make and sell
products employing tetracyclines to treat certain disease conditions. SUNY owns
twenty-four U.S. patents and eight U.S. patent applications that are licensed to
us. The patents licensed from SUNY expire between 2004 and 2018; two related to
Periostat, expire in 2004 and 2007. Of the twenty four patents, one patent has
been co-assigned to the University of Miami, Florida, one patent has been
co-assigned to Washington University, St. Louis, and one patent has been
co-assigned to the Hospital for Joint Diseases. Of the eight patent
applications, one patent application has been co-assigned to the Hospital for
Joint Diseases, one patent application has been co-assigned to the University of
Miami, Florida, one patent application has been co-assigned to the University of
Rochester, and one patent application is co-owned by the University of Helsinki.
The primary United States patent covers the use of conventional
tetracyclines to inhibit pathologically excessive collagenolytic activity (the
"Primary Patent"), while a related United States patent covers the use of
tetracyclines having no antibiotic activity (the "Secondary Patent") for the
same purpose. SUNY did not apply in foreign countries for patents corresponding
to the Primary Patent but has obtained patents that correspond to the Secondary
Patent in Australia, Canada and certain European countries. One of the Secondary
Patents has issued in Japan. SUNY also has obtained patents in certain European
countries, Canada and Japan and has pending patent applications in certain other
foreign countries which correspond to its United States patents relating to
methods of use of tetracyclines to reduce bone loss. Our rights under the SUNY
License are subject to certain statutory rights of the United States government
resulting from federal support of research activities at SUNY.
If we do not obtain and maintain our patent protection we may face
increased competition in the United States and in foreign countries. The SUNY
License imposes various payment and reporting obligations on us. Our failure to
comply with these requirements could result in the termination of such license.
If the SUNY License is terminated, we would lose our right to exclude
competitors from commercializing similar products. Moreover, if SUNY
subsequently licensed the technology to a competitor, we could be excluded from
marketing the same products.
One of the United States patents and one corresponding Japanese patent
application licensed to us under the SUNY License are owned jointly by SUNY and
a Japanese company.
-4-
<PAGE>
These patent rights, which expire in 2012, cover particular chemically modified
tetracyclines (the "Jointly Owned CMTs") that were involved in research
activities between SUNY and the Japanese company. The Japanese company may have
exclusive rights to these Jointly Owned CMTs in Asia, Australia and New Zealand
and may have a non-exclusive right to exploit these Jointly Owned CMTs in other
territories. These Jointly Owned CMTs are not involved in Periostat, but could
in the future prove to be important for one or more of the other potential
applications of our technology. If we do incorporate the Jointly Owned CMTs in
any future product, we may not be able to market these products in Asia,
Australia and New Zealand and could experience increased competition in other
markets, including the United States, from the joint owner.
Although inventor(s) can never be unequivocally certain they are first to
invent the subject matter of a patent, rigorous examination by the U.S. and
foreign Patent Offices and investigation by competitors lead us to believe that
we are the first inventors of inventions covered by issued patents and pending
patent applications. We deem it unlikely that our issued patents and/or pending
applications will be invalid for lack of first true inventor(s).
In addition, we cannot guarantee, without limitation, that patent
applications to which we hold rights will result in the issuance of patents; any
patents issued or licensed to us will be free from challenge and that if
challenged, that they would be held to be valid; any such patents will provide
commercially significant protection to our technology, products and processes;
others will not independently develop substantially equivalent proprietary
information which is not covered by patents to which we own rights or obtain
access to our know-how. However, others who receive patents for inventions
subsequent to ours cannot prevent the sale of our products currently being made
and sold, nor can they require licensing and payment of fees or royalties to
enable us to conduct our business.
If any relevant claims of third-party patents which pre-date our
inventions are upheld as valid and enforceable, we could be prevented from
selling our products or could be required to obtain licenses from the owners of
such patents. We cannot guarantee that such licenses would be available or, even
if available, would be on acceptable terms to us. If we fail to obtain these
licenses such failure would have a material adverse effect on our business,
financial condition and results of operations.
Due to the general availability of generic tetracyclines for use as
antibiotics, we could become involved in expensive infringement actions to
enforce and/or protect our patents. Regardless of the outcome, the defense and
prosecution of patent claims is expensive and time consuming and may distract
our management from their other activities. Although federal law prohibits the
promotion or marketing of pharmaceuticals for unauthorized uses, we cannot
guarantee that practitioners will not prescribe or patients will not obtain
generic forms of doxycycline and divide the tablets into smaller doses instead
of obtaining a prescription for Periostat.
Our success also depends upon know-how, unpatentable trade secrets, and
the skills, knowledge and experience of our scientific and technical personnel.
We require all employees to enter into confidentiality agreements that prohibit
the disclosure of confidential information to
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<PAGE>
third parties and require disclosure and assignment of rights to their ideas,
developments, discoveries and inventions. In addition, we try to get such
agreements from our consultants, advisors and research collaborators. We cannot
guarantee that adequate protection will be provided for our trade secrets,
know-how or other proprietary information if there is any unauthorized use or
disclosure. We occasionally provide information and chemical compounds to
research collaborators in academic institutions and request the collaborators to
conduct tests in order to investigate certain properties of the compounds. We
cannot guarantee that the academic institutions will not assert intellectual
property rights in the results of the tests conducted by the research
collaborators, or that the academic institutions will grant licenses under such
intellectual property rights to us on acceptable terms or at all. If the
assertion of intellectual property rights by an academic institution is
substantiated, and the academic institution does not grant intellectual property
rights to us, our business, financial condition and results of operations could
be materially adversely affected.
If We Lose Our Sole Supplier of Doxycycline or Our Current Manufacturer of
Periostat, Our Commercialization of Periostat Will be Interrupted or Less
Profitable. We rely on a single supplier for doxycycline, the active ingredient
in Periostat. There are relatively few alternative suppliers of doxycycline and
this supplier produces the majority of the doxycycline used in the United
States. If we are unable to procure a commercial quantity of doxycycline from
our current supplier on an ongoing basis at a competitive price, or if we cannot
find a replacement supplier in a timely manner or with favorable pricing terms,
our costs may increase significantly and we may experience delays in the supply
of Periostat.
We rely on a single third-party contract manufacturer to produce
Periostat. We are currently working with another contract manufacturer on a
tablet formulation for Periostat and we intend to contract with additional
manufacturers for the commercial manufacture of Periostat. An inability to
maintain our arrangements with our present manufacturer could result in delays
in the supply of Periostat and we believe that it could take up to one year to
successfully transition to a new manufacturer.
A Reduction in Third-Party Reimbursements May Negatively Affect the Sale
of Our Products. Successful commercialization of Periostat or other
pharmaceutical products that we may develop or market will depend upon the
availability in both domestic and foreign markets of reimbursement or funding
from third party health care payors such as government and private insurance
plans, including dental managed care plans. As third party payors seek to
contain their costs, they may reduce or decline reimbursement for new products.
These actions may restrict our ability to realize an appropriate return on our
pharmaceutical products. It is also uncertain what legislative proposals may be
adopted relating to health care reimbursement or what actions may be taken in
response to any health care reform proposals or legislation by federal, state or
private payors of health care products and services. In addition, in certain
foreign markets, pricing or profitability of prescription pharmaceuticals is
subject to governmental control. A reduction or elimination of reimbursement by
third party payors or regulatory limitations would negatively affect the sale of
our products.
If We Cannot Compete Effectively, Our Sales Will Decline. Competition in
the pharmaceutical industry is intense. Many pharmaceutical companies have
substantially greater
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<PAGE>
financial, marketing, sales, distribution and technical resources than do we and
have more experience in research and development, clinical trials, regulatory
matters, manufacturing and marketing. Our technology may be rendered obsolete or
uneconomical by technological advances or entirely different approaches
developed by one or more of these companies.
We May be Unable to Successfully Commercialize New Products. We have
several potential products for non-dental applications that are in various early
stages of development that would require significant additional research and
development, clinical trials and appropriate regulatory approval before any of
these products may be commercialized. All of these proposed products are based
upon our core technology, which is licensed from SUNY. We anticipate developing
and commercializing these non-dental products through collaborations and
licensing arrangements with third parties who likely will be responsible for
many aspects of pre-clinical testing and human clinical trials, the preparation
and submission of applications for regulatory approval and the manufacturing of
these products. We will, therefore, be dependent upon the expertise and
resources of third parties to develop, commercialize and manufacture our new
products.
We Are Subject to Extensive Government Regulations. We are subject to
comprehensive regulation by the FDA in the United States and by comparable
authorities in other countries. These national agencies and other federal,
state, and local authorities regulate, among other things, the research and
development, including preclinical and clinical testing, safety, effectiveness,
approval, manufacturing, labeling, advertising, promotion, export, and marketing
of our products. In the United States, the FDA regulates drug products under the
Federal Food, Drug, and Cosmetic Act, and other laws.
Both before and after approval is obtained, violations of regulatory
requirements may result in various adverse consequences, including the FDA's
delay in approving or refusal to approve a product, recalls, withdrawal of an
approved product from the market, and/or the imposition of civil or criminal
sanctions.
We also will be subject to a variety of foreign regulatory regimes
governing clinical trials and sales of our products. Our products have not been
approved in any foreign country. Whether or not FDA approval has been obtained,
approval of a product by the comparable regulatory authorities of foreign
countries must be obtained prior to the commencement of marketing of the product
in those countries. The approval process varies from country to country, and
other countries may also impose post-approval requirements.
If Our Products Cause Injuries, We May Incur Significant Expense and
Liability. Our business may be adversely affected by potential product liability
risks inherent in the testing, manufacturing and marketing of Periostat and
other products developed by or for us. We have $10.0 million in product
liability insurance for Periostat. This level of insurance may not adequately
protect us against product liability claims. Insufficient insurance coverage or
the failure to obtain indemnification from third parties for their respective
liabilities may expose us to product liability claims and/or recalls and could
cause our business, financial condition and results of operations to decline.
-7-
<PAGE>
If We Need Additional Financing, and Financing is Unavailable, Our Ability
to Develop and Commercialize Products and Our Operations Will be Adversely
Affected. We have historically financed our operations through public and
private equity financings. Our capital requirements depend on numerous factors,
including our ability to successfully commercialize Periostat, competing
technological and market developments, our ability to enter into collaborative
arrangements for the development, regulatory approval and commercialization of
other products, and the cost of filing, prosecuting, defending and enforcing
patent claims and other intellectual property rights. We anticipate that we may
be required to raise additional capital in order to conduct our operations.
Additional funding, if necessary, may not be available on favorable terms, if at
all. If adequate funds are not available, we may be required to curtail
operations significantly or to obtain funds through arrangements with
collaborative partners or others that may require us to relinquish rights to
certain of our technologies, product candidates, products or potential markets.
At March 31, 2000 we had cash, cash equivalents and short-term investments of
approximately $12.1 million and we anticipate that our existing working capital
will be sufficient to fund our operations through the year-end 2000.
Delaware Law, Our Certificate of Incorporation and Our By-Laws Contain
Provisions That Could Discourage a Takeover of Our Company. Anti-takeover
provisions of Delaware law, our Certificate of Incorporation and our By-Laws
could make it more difficult for a third party to acquire control of us, even if
such change would be beneficial to our stockholders. Our Certificate of
Incorporation provides that our board of directors may issue preferred stock
with superior rights and preferences without common stockholder approval. The
issuance of preferred stock could have the effect of delaying, deterring or
preventing a change in control. Our board of directors has also adopted a
"poison pill" rights plan that may further discourage a third party from making
a proposal to acquire us. In addition, in connection with the issuance of our
preferred stock, the rights of our common stockholders may be limited in certain
instances with respect to divided rights, rights on liquidation, winding up and
dissolution and certain other matters submitted to a vote of our common
stockholders.
Because Our Executive Officers, Directors and Affiliated Entities Own
Approximately 42% of Our Capital Stock, They Could Control Our Actions in a
Manner That Conflicts With Our Interests and the Interests of Our Other
Stockholders. Currently, our executive officers, directors and affiliated
entities together beneficially own approximately 42% of the outstanding shares
of our common stock or equity securities convertible into common stock. As a
result, these stockholders, acting together, or in the case of our preferred
stockholders, in certain instances, as a class, will be able to exercise control
over corporate actions requiring stockholder approval, including the election of
directors. This concentration of ownership may have the effect of delaying or
preventing a change in control, including transactions in which our stockholders
might otherwise receive a premium for their shares over then current market
prices.
Our Stock Price is Highly Volatile, and Therefore the Value of Your
Investment May Fluctuate Significantly. The market price of our common stock has
fluctuated and will continue to fluctuate as a result of variations in our
quarterly operating results. These fluctuations may be exaggerated if the
trading volume of our common stock is low. In addition, the stock market in
general has experienced dramatic price and volume fluctuations from time to
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<PAGE>
time. These fluctuations may or may not be based upon any business or operating
results. Our common stock may experience similar or even more dramatic price and
volume fluctuations which may continue indefinitely.
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus and the documents incorporated herein contain
forward-looking statements. For this purpose, any statements contained herein or
incorporated herein that are not statements of historical fact may be
forward-looking statements. For example, the words "may," "will," "continue,"
"believes," "expects," "anticipates," "intends," "estimates," "should" and
similar expressions are intended to identify forward-looking statements. There
are a number of important factors that could cause CollaGenex's results to
differ materially from those indicated by such forward-looking statements. These
factors include those set forth in the section entitled "Risk Factors." In
particular, CollaGenex's business of selling, marketing and developing
pharmaceutical products is subject to a number of significant risks, including
risks relating to the implementation of CollaGenex's sales and marketing plans
for Periostat(R), risks inherent in research and development activities, risks
associated with conducting business in a highly regulated environment and
uncertainty relating to clinical trials of products under development.
CollaGenex's success depends to a large degree upon the market acceptance of
Periostat by periodontists, dental practitioners, other health care providers,
patients and insurance companies. In addition, there can be no assurance that
CollaGenex's product candidates (other than the FDA's approval of Periostat in
the United States) will be approved by any regulatory authority for marketing in
any jurisdiction or, if approved, that any such products or Denavir(R) or
Vioxx(R) will be successfully commercialized by CollaGenex. As a result of such
risks and others expressed from time to time in CollaGenex's filings with the
Securities and Exchange Commission, CollaGenex's actual results may differ
materially from the results discussed in or implied by the forward-looking
statements contained herein.
USE OF PROCEEDS
CollaGenex will not receive any of the proceeds from the sale of the
shares offered by the selling shareholders set forth in this prospectus.
SELLING SHAREHOLDERS
The individuals and entities listed below received shares of preferred
stock in connection with the execution of a stock purchase agreement with
CollaGenex, dated March 19, 1999. The preferred stock is by its terms
convertible, in certain circumstances, into shares of common stock. Holders of
the preferred stock are also entitled to certain dividend payments to be made in
shares of common stock. Under the terms of the stock purchase agreement, all
such dividend payments issued to the selling shareholders are to be registered
with the Securities and Exchange Commission. The registration of shares of
common stock payable as dividends to the selling shareholders for the period
July 1, 1999 through December 31, 1999 is included herein.
The following table sets forth as of December 31, 1999 certain information
with respect to the selling shareholders. CollaGenex cannot assure that any of
the selling shareholders will offer for sale or sell any or all of the shares
offered by them pursuant to this prospectus.
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<PAGE>
<TABLE>
<CAPTION>
Number of
Beneficial Ownership of Shares Beneficial
Name of Selling Shareholders Offered Ownership of Shares
Selling Shareholders Prior to Offering(1) Hereby(2) After Offering(2)
---------------------------------------- --------------------------- ----------- -----------------------
Number Percent Number Percent
------ ------- ------ -------
<S> <C> <C> <C> <C> <C>
OCM Principal Opportunities Fund, L.P. . 1,662,630(3) 16.1(3) 34,680 1,627,950 15.8
Richard A. Horstmann ................... 707,536(4) 8.0(4) 1,960 705,576 8.0
Marquette Venture Partners II, L.P. .... 982,183(5) 11.2(5) 1,905 980,278 11.2
MVP II Affiliates Fund, L.P. ........... 28,066(5) *(5) 55 28,011 *
Robert J. Easton ....................... 66,083(6) *(6) 392 65,691 *
Pebblebrook Partners Ltd. .............. 9,394(7) *(7) 196 9,198 *
</TABLE>
---------
* Less than one percent
(1) Such number of shares held includes shares of common stock issued to each
such holder in payment of dividends on the preferred stock declared by the
CollaGenex's Board of Directors in December 1999 and distributed in January
2000. Applicable percentage of ownership is based on 8,665,729 shares of
common stock outstanding as of February 15, 2000, plus any common stock
equivalents or convertible securities held, shares beneficially owned by
each such holder and shares of common stock issued by CollaGenex in payment
of dividends on the preferred stock as set forth herein.
(2) Assumes that all shares to be offered, as set forth above, are sold pursuant
to this offering and that no other shares of common stock are acquired or
disposed of by the selling shareholders prior to the termination of this
offering. Because the selling shareholders may sell all, some or none of
their shares or may acquire or dispose of other shares of common stock, no
reliable estimate can be made of the aggregate number of shares that will be
sold pursuant to this offering or the number or percentage of shares of
common stock that each selling shareholder will own upon completion of this
offering.
(3) Stephen A. Kaplan, a member of CollaGenex's Board of Directors, is a
Principal of Oaktree Capital Management, LLC, which is the general partner
of OCM Principal Opportunities Fund, L.P. ("OCM"). Includes 1,609,091 shares
of common stock issuable upon the conversion of 177,000 shares of preferred
stock held by OCM and 53,539 shares of common stock issued in payment of
dividends on such preferred stock. Mr. Kaplan expressly disclaims beneficial
ownership of such shares, except to the extent of any indirect pecuniary
interest therein.
(4) Mr. Horstmann is a principal of Thomson Horstmann & Bryant, Inc. and, as
such, has the power to vote or to direct the vote of and to dispose of or
direct the disposition of the shares owned by Thomson Horstmann & Bryant,
Inc. (613,600 shares of common stock). Mr. Horstmann expressly disclaims
beneficial ownership of such shares, except as to his proportionate interest
in Thomson Horstmann & Bryant, Inc. Also includes 90,910 shares of common
stock issuable upon the conversion of 10,000 shares of preferred stock held
by Mr.
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Horstmann and 3,026 shares of common stock issued in payment of dividends
on such preferred stock.
(5) James E. Daverman, a member of CollaGenex's Board of Directors, is President
of Marquette Management Partners, LLC, the general partner of Marquette
Venture Partners, L.P. and a general partner of MG II, L.P., the general
partner of Marquette Venture Partners II, L.P. ("Marquette") and MVP II
Affiliates Fund, L.P. ("MVP II") and, as such, has the power to vote or
direct the vote of and to dispose of or direct the disposition of the shares
owned by Marquette (which includes 88,382 shares of common stock issuable
upon the conversion of 9,722 shares of preferred stock held by Marquette,
2,941 shares of common stock issued in payment of dividends on such
preferred stock and 890,860 shares of common stock otherwise held by
Marquette) and MVP II (which includes 2,528 shares of common stock issuable
upon the conversion of 278 shares of preferred stock held by MVP II, 85
shares of common stock issued in payment of dividends on such preferred
stock and 25,453 shares of common stock otherwise held by MVP II). Mr.
Daverman expressly disclaims beneficial ownership of such shares, except as
to his proportionate interest in each of Marquette and MVP II.
(6) Mr. Easton is a member of CollaGenex's Board of Directors. Includes 15,000
shares of common stock underlying options which are exercisable as of
February 15, 2000 or 60 days after such date. Also includes 18,182 shares of
common stock issuable upon the conversion of 2,000 shares preferred stock
held by Mr. Easton and 606 shares of common stock issued in payment of
dividends on such preferred stock. Also includes 6,400 shares of common
stock held as trustee for Second Easton Family Charitable Trust and 25,895
shares of common stock otherwise held by Mr. Easton.
(7) Includes 9,091 shares of common stock issuable upon the conversion of 1,000
shares of preferred stock held by Pebblebrook Partners Ltd. and 303 shares
of common stock issued in payment of dividends on such preferred stock.
All offering expenses are being paid by CollaGenex except the fees and
expenses of any counsel and other advisors that the Selling Shareholders may
employ to represent them in connection with the offering and all brokerage or
underwriting discounts or commissions paid to broker-dealers in connection with
the sale of the shares.
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<PAGE>
PLAN OF DISTRIBUTION
The selling shareholders have not advised CollaGenex of any specific plan
for distribution of the shares offered hereby, but it is anticipated that the
shares will be sold from time to time by the selling shareholders or by
permitted pledgees, donees, transferees or other permitted successors in
interest. Such sales may be made in any of the following manners:
o On the Nasdaq National Market (or through the facilities of any
national securities exchange or U.S. inter-dealer quotation system of
a registered national securities association, on which the shares are
then listed, admitted to unlisted trading privileges or included for
quotation);
o In public or privately negotiated transactions;
o In transactions involving principals or brokers;
o In a combination of such methods of sale; or
o Any other lawful methods.
Although sales of the shares are, in general, expected to be made at
market prices prevailing at the time of sale, the shares may also be sold at
prices related to such prevailing market prices or at negotiated prices, which
may differ considerably.
In offering the shares covered by this prospectus, each of the selling
shareholders and any broker-dealers who sell the shares for the selling
shareholders may be "underwriters" within the meaning of the Securities Act of
1933, and any profits realized by such selling shareholders and the compensation
of such broker-dealers may be underwriting discounts and commissions.
Sales through brokers may be made by any method of trading authorized by
any stock exchange or market on which the shares may be listed, including block
trading in negotiated transactions. Without limiting the foregoing, such brokers
may act as dealers by purchasing any or all of the shares covered by this
prospectus, either as agents for others or as principals for their own accounts,
and reselling such shares pursuant to this prospectus. The selling shareholders
may effect such transactions directly, or indirectly through underwriters,
broker-dealers or agents acting on their behalf. In connection with such sales,
such broker-dealers or agents may receive compensation in the form of
commissions, concessions, allowances or discounts, any or all of which might be
in excess of customary amounts.
Each of the selling shareholders is acting independently of CollaGenex in
making decisions with respect to the timing, manner and size of each sale of
shares. CollaGenex has not been advised of any definitive selling arrangement at
the date of this prospectus between any selling shareholder and any
broker-dealer or agent.
To the extent required, the names of any agents, broker-dealers or
underwriters and applicable commissions, concessions, allowances or discounts,
and any other required information with respect to any particular offer of the
shares by the selling shareholders, will be set forth in a prospectus
supplement.
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<PAGE>
The expenses of preparing and filing this prospectus and the related
registration statement with the Securities and Exchange Commission will be paid
entirely by CollaGenex. Shares of common stock covered by this prospectus also
may qualify to be sold pursuant to Rule 144 under the Securities Act of 1933,
rather than pursuant to this prospectus. The selling shareholders have been
advised that they are subject to the applicable provisions of the Securities
Exchange Act of 1934, as amended, including without limitation, Rule 10b-5
thereunder.
Neither CollaGenex nor the selling shareholders can estimate at the
present time the amount of commissions or discounts, if any, that will be paid
by the selling shareholders on account of their sales of the shares from time to
time.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed
upon for CollaGenex by Buchanan Ingersoll Professional Corporation, 650 College
Road East, Princeton, New Jersey 08540.
EXPERTS
The consolidated financial statements and schedule of CollaGenex
Pharmaceuticals, Inc. and subsidiaries as of December 31, 1998 and 1999, and for
each of the years in the three-year period ended December 31, 1999, have been
incorporated by reference herein and in the registration statement in reliance
upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
INFORMATION INCORPORATED BY REFERENCE
The Securities and Exchange Commission allows CollaGenex to "incorporate
by reference" the information CollaGenex files with the Securities and Exchange
Commission, which means that CollaGenex can disclose important information to
you by referring you to those documents. The information incorporated by
reference is an important part of this prospectus, and information that
CollaGenex files later with the Securities and Exchange Commission will
automatically update and supersede this information. CollaGenex incorporates by
reference the documents listed below and any future filings made by CollaGenex
with the Securities and Exchange Commission under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act of 1934, as amended, until the filing of a
post-effective amendment to this prospectus which indicates that all securities
registered have been sold or which deregisters all securities then remaining
unsold:
o CollaGenex's Annual Report on Form 10-K for the year ended December
31, 1999 filed with the Securities and Exchange Commission on March
29, 2000;
o All other reports filed by CollaGenex pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1999; and
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<PAGE>
o The description of CollaGenex's common stock, $.01 par value, which is
contained in CollaGenex's Registration Statement on Form 8-A filed
pursuant to Section 12(g) of the Exchange Act of 1934, as amended, in
the form declared effective by the Securities and Exchange Commission
on June 20, 1996, including any subsequent amendments or reports filed
for the purpose of updating such description.
CollaGenex will provide to any person, including any beneficial owner of
its securities, to whom this prospectus is delivered, a copy of any or all of
the information that has been incorporated by reference in this prospectus but
not delivered with this prospectus. You may make such requests at no cost to you
by writing or telephoning CollaGenex at the following address or number:
CollaGenex Pharmaceuticals, Inc.
41 University Drive
Newtown, Pennsylvania 18940
Attention: Chief Financial Officer
Telephone: (215) 579-7388
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. CollaGenex has not
authorized anyone else to provide you with different information. CollaGenex is
not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
WHERE YOU CAN FIND MORE INFORMATION
CollaGenex files annual, quarterly and special reports, proxy statements
and other information with the Securities and Exchange Commission. CollaGenex's
Securities and Exchange Commission filings are available to the public over the
Internet at the Securities and Exchange Commission's website at
http://www.sec.gov. You may also read and copy, at prescribed rates, any
document CollaGenex files with the Securities and Exchange Commission at the
Securities and Exchange Commission's Public Reference Room at 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the regional offices of the Securities and
Exchange Commission at Seven World Trade Center, Suite 1300, New York, New York
10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Please call the Securities and Exchange Commission at
1-800-SEC-0330 for further information on the Securities and Exchange
Commission's Public Reference Room.
CollaGenex has filed with the Securities and Exchange Commission a
Registration Statement on Form S-3 under the Securities Act of 1933 with respect
to the shares offered hereby. This prospectus, which constitutes a part of that
registration statement, does not contain all the information contained in the
registration statement and its exhibits. For further information with respect to
CollaGenex and the shares, you should consult the registration statement and its
exhibits. Statements contained in this prospectus concerning the provisions of
any documents are necessarily summaries of those documents, and each statement
is qualified in
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<PAGE>
its entirety by reference to the copy of the document filed with the Securities
and Exchange Commission. The registration statement and any of its amendments,
including exhibits filed as a part of the registration statement or an amendment
to the registration statement, are available for inspection and copying as
described above.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection (a) of Section 145 of the Delaware General Corporation Law
empowers a corporation to indemnify any person who was or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
of the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsection (a) and (b) or in the defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith; that the indemnification provided by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the scope of indemnification extends to directors, officers, employees,
or agents of a constituent corporation absorbed in a consolidation or merger and
persons serving in that capacity at the request of the constituent corporation
for another. Section 145 also empowers the corporation to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against
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<PAGE>
him or her or incurred by him or her in any such capacity or arising out of his
or her status as such whether or not the corporation would have the power to
indemnify him or her against such liabilities under Section 145.
Article IX of CollaGenex's By-laws specifies that CollaGenex shall
indemnify its directors, officers, employees and agents because he or she was or
is a director, officer, employee or agent of the Corporation or was or is
serving at the request of the Corporation as a director, officer, employee or
agent of another entity to the full extent that such right of indemnity is
permitted by the laws of the State of Delaware. This provision of the By-laws is
deemed to be a contract between CollaGenex and each director and officer who
serves in such capacity at any time while such provision and the relevant
provisions of the Delaware General Corporation Law are in effect, and any repeal
or modification thereof shall not offset any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts. The affirmative vote of the holders of at least 80% of
the voting power of all outstanding shares of the capital stock of CollaGenex,
and, in certain circumstances, 66 2/3% of the voting power of all outstanding
shares of the Series D cumulative convertible preferred stock of CollaGenex, is
required to adopt, amend or repeal such provision of the By-laws.
CollaGenex has executed indemnification agreements with each of its
officers and directors pursuant to which CollaGenex has agreed to indemnify such
parties to the full extent permitted by law, subject to certain exceptions, if
such party becomes subject to an action because such party is a director,
officer, employee, agent or fiduciary of CollaGenex.
Section 102(b)(7) of the Delaware General Corporation Law enables a
corporation in its certificate of incorporation to limit the personal liability
of members of its board of directors for violation of a director's fiduciary
duty of care. This section does not, however, limit the liability of a director
for breaching his or her duty of loyalty, failing to act in good faith, engaging
in intentional misconduct or knowingly violating a law, or from any transaction
in which the director derived an improper personal benefit. This section also
will have no effect on claims arising under the federal securities laws.
CollaGenex's Amended and Restated Certificate of Incorporation limits the
liability of its directors as authorized by Section 102(b)(7). The affirmative
vote of the holders of at least 75% of the voting power of all outstanding
shares of the capital stock of CollaGenex, and, in certain circumstances, 66
2/3% of the voting power of all outstanding shares of the Series D cumulative
convertible preferred stock of the CollaGenex, is required to amend such
provisions.
CollaGenex has obtained liability insurance for the benefit of its
directors and officers which provides coverage for losses of directors and
officers for liabilities arising out of claims against such persons acting as
directors or officers of CollaGenex (or any subsidiary thereof) due to any
breach of duty, neglect, error, misstatement, misleading statement, omission or
act done by such directors and officers, except as prohibited by law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
CollaGenex pursuant to the foregoing provisions, or otherwise, CollaGenex has
been advised that in the opinion of the Securities and
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Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC registration fee............................ $ 100.55
Counsel fees and expenses*...................... $20,000.00
Accounting fees and expenses*................... $ 5,000.00
----------
Total*....................................... $25,100.55
==========
* Estimated
All expenses of issuance and distribution listed above will be borne by
CollaGenex. The costs of fees and expenses of legal counsel and other advisors,
if any, that the selling shareholders employ in connection with the offering
will be borne by the selling shareholders.
Item 15. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the Delaware General Corporation Law
empowers a corporation to indemnify any person who was or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
of the circumstances of the
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<PAGE>
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsection (a) and (b) or in the defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith; that the indemnification provided by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the scope of indemnification extends to directors, officers, employees,
or agents of a constituent corporation absorbed in a consolidation or merger and
persons serving in that capacity at the request of the constituent corporation
for another. Section 145 also empowers the corporation to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Article IX of CollaGenex's By-laws specifies that CollaGenex shall
indemnify its directors, officers, employees and agents because he or she was or
is a director, officer, employee or agent of CollaGenex or was or is serving at
the request of CollaGenex as a director, officer, employee or agent of another
entity to the full extent that such right of indemnity is permitted by the laws
of the State of Delaware. This provision of the By-laws is deemed to be a
contract between CollaGenex and each director and officer who serves in such
capacity at any time while such provision and the relevant provisions of the
Delaware General Corporation Law are in effect, and any repeal or modification
thereof shall not offset any action, suit or proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such state
of facts. The affirmative vote of the holders of at least 80% of the voting
power of all outstanding shares of the capital stock of CollaGenex, and, in
certain circumstances, 66 2/3% of the voting power of all outstanding shares of
the Series D cumulative convertible preferred stock of CollaGenex, is required
to adopt, amend or repeal such provision of the By-laws.
CollaGenex has executed indemnification agreements with each of its
officers and directors pursuant to which CollaGenex has agreed to indemnify such
parties to the full extent permitted by law, subject to certain exceptions, if
such party becomes subject to an action because such party is a director,
officer, employee, agent or fiduciary of CollaGenex.
Section 102(b)(7) of the Delaware General Corporation Law enables a
corporation in its certificate of incorporation to limit the personal liability
of members of its board of directors for violation of a director's fiduciary
duty of care. This section does not, however, limit the liability of a director
for breaching his or her duty of loyalty, failing to act in good faith, engaging
in intentional misconduct or knowingly violating a law, or from any transaction
in which the director derived an improper personal benefit. This section also
will have no effect on claims arising under the federal securities laws.
CollaGenex's Amended and Restated Certificate of Incorporation limits the
liability of its directors as authorized by Section 102(b)(7). The affirmative
vote of the holders of at least 75%
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<PAGE>
of the voting power of all outstanding shares of the capital stock of
CollaGenex, and, in certain circumstances, 66 2/3% of the voting power of all
outstanding shares of the Series D cumulative convertible preferred stock of
CollaGenex, is required to amend such provisions.
CollaGenex has obtained liability insurance for the benefit of its
directors and officers which provides coverage for losses of directors and
officers for liabilities arising out of claims against such persons acting as
directors or officers of CollaGenex (or any subsidiary thereof) due to any
breach of duty, neglect, error, misstatement, misleading statement, omission or
act done by such directors and officers, except as prohibited by law.
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<PAGE>
Item 16. Exhibits.
Exhibit No. Description of Exhibit
----------- ----------------------
*5 Opinion of Buchanan Ingersoll Professional Corporation
as to legality of the shares of common stock.
23.1 Consent of KPMG LLP.
*23.2 Consent of Buchanan Ingersoll Professional Corporation
(contained in the opinion filed as Exhibit 5 to the
Registration Statement).
*24 Powers of Attorney of certain officers and directors of
CollaGenex.
* Previously filed.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
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<PAGE>
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Newtown, State of
Pennsylvania on this 28th day of June, 2000.
COLLAGENEX PHARMACEUTICALS, INC.
By: /s/ Brian M. Gallagher, Ph.D.
------------------------------
Brian M. Gallagher, Ph.D.
President and Chief Executive Officer
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Brian M. Gallagher, Ph.D. President, Chief June 28, 2000
--------------------------------- Executive Officer and
Brian M. Gallagher, Ph.D. Director (Principal
Executive Officer)
/s/ Nancy C. Broadbent Chief Financial Officer, June 28, 2000
--------------------------------- Treasurer and Secretary
Nancy C. Broadbent (Principal Financial and
Accounting Officer)
* Chairman of the Board and June 28, 2000
--------------------------------- Director
Helmer P.K. Agersborg, Ph.D.
* Director June 28, 2000
---------------------------------
Peter Barnett, D.M.D.
* Director June 28, 2000
---------------------------------
Robert C. Black
* Director June 28, 2000
---------------------------------
James E. Daverman
* Director June 28, 2000
---------------------------------
Robert J. Easton
* Director June 28, 2000
---------------------------------
Stephen A. Kaplan
* Director June 28, 2000
---------------------------------
Terence E. Winters, Ph.D.
*By the signature set forth below, the undersigned, pursuant to duly authorized
powers of attorney filed with the Securities and Exchange Commission has signed
this Amendment to the Registration Statement on behalf of the person indicated.
/s/ Nancy C. Broadbent
Nancy C. Broadbent
(Attorney-in-fact)
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
----------- ----------------------
*5 Opinion of Buchanan Ingersoll Professional Corporation as to
legality of the shares of common stock.
23.1 Consent of KPMG LLP.
*23.2 Consent of Buchanan Ingersoll Professional Corporation (contained
in the opinion filed as Exhibit 5 to the Registration Statement).
*24 Powers of Attorney of certain officers and directors of
CollaGenex.
* Previously filed.
<PAGE>
EXHIBIT 23.1
Accountants' Consent
The Board of Directors
CollaGenex Pharmaceuticals, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
Princeton, New Jersey
June 26, 2000
