Conformed Copy
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Stock Purchase Agreement
by and among
▇▇▇▇ Ajnsztajn,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and
SkyePharma PLC
Dated as of December 29, 2004
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated as of December 29,
2004 by and among ▇▇▇▇ Ajnsztajn and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (collectively referred to
as the "Sellers" and individually as a "Seller"), and SkyePharma PLC, a company
incorporated under the laws of England and Wales (the "Purchaser").
WHEREAS, ▇▇▇▇ Ajnsztajn owns of record and beneficially 8,680,000
shares of common stock of Astralis Ltd., a Delaware corporation ("Astralis"),
$0.0001 par value (the "Astralis Stock") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ owns of record and
beneficially 2,480,000 shares of Astralis Stock (with respect to each of ▇▇▇▇
Ajnsztajn and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the "Seller's Shares" and, collectively, the
"Sellers' Shares");
WHEREAS, the Sellers desire to sell the Sellers' Shares and the
Purchaser desires to purchase the Sellers' Shares for the consideration set
forth below and subject to all of the terms, conditions, promises,
representations and warranties set forth herein;
WHEREAS, concurrently with the execution of this Agreement, the
Purchaser and the Sellers are executing an Assignment Agreement (the "Assignment
Agreement") pursuant to which each Seller will transfer to the Purchaser certain
rights (the "Rights") under the Stockholders Agreement, dated December 10, 2001,
as amended on January 20, 2004 between Astralis, Sellers, Purchaser and the
other parties thereto (the "Stockholders Agreement"), including without
limitation each Seller's rights under Section 2.1 and 2.2 of the Stockholders
Agreement to nominate and designate directors, and pursuant to which the
Purchaser will upon the satisfaction of certain conditions described therein be
obligated to pay to the Sellers the number of Ordinary Shares of the Purchaser
("Assignment Shares") described therein (the "Assignment Share Consideration");
and
WHEREAS, the Sellers and the Purchaser are entering into this Agreement
to provide for such purchase and sale and to establish various rights and
obligations in connection therewith.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Purchase and Sale
1.1 Purchase and Sale
Upon the terms and subject to the conditions of this Agreement each
Seller hereby agrees, severally and not jointly, that at the Closing he shall
sell, assign, transfer, convey and deliver the number of Seller's Shares
specified in the Recitals above to the Purchaser, and the Purchaser hereby
agrees that it shall purchase from each Seller the Sellers' Shares held by such
Seller at the purchase price set forth in Section 1.2 below.
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1.2 Purchase Price
The purchase price to be paid by Purchaser for the Sellers' Shares will
be the following number of newly issued SkyePharma Ordinary Shares ("SkyePharma
Shares") subscribed for in accordance with and subject to Section 1.4 hereof
(with respect to each Seller, the "SkyePharma Share Consideration"): to ▇▇▇▇
Ajnsztajn, 4,263,963 SkyePharma Shares; and to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, 1,218,275
SkyePharma Shares. For purposes of this Agreement, "SkyePharma Shares" means
SkyePharma Ordinary Shares, of nominal value of 10 p each, which class of stock
is traded on the London Stock Exchange under the symbol SKP.L.
1.3 Instruments of Conveyance and Transfer
Each Seller covenants that he shall at any time, and from time to time
after the date hereof, execute, acknowledge and deliver any assignments,
transfers and any other such instruments of conveyance, or other documentation
or agreements, upon the request of the Purchaser, necessary to effect the sale
of the portion of the Sellers' Shares held by him hereunder and to vest in the
Purchaser good and marketable title to the Sellers' Shares. The Purchaser agrees
that it will hold the Sellers' Shares subject to the terms of the Stockholders
Agreement and will continue to be bound by the terms of the Stockholders
Agreement, while it remains in effect.
1.4 The Closing
The closing of the sale to, and purchase by, the Purchaser of the
Sellers' Shares (the "Closing") shall occur at the offices of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ (i) on or before March
15, 2005, or (ii) at such other time and place as the Sellers and the Purchaser
may mutually agree. The date on which the Closing occurs is referred to as the
"Closing Date". At the Closing, each Seller shall deliver to the Purchaser the
documents referred to in Sections 4.1 and 6.1 hereof. At the Closing, the
Purchaser shall deliver to each Seller the other documents referred to in
Sections 5.1 and 6.1 hereof. On or prior to Closing, the Purchaser shall supply
the name of its nominee(s) and the number of shares and share certificates to be
issued to the Purchaser or its nominee(s), which shall be delivered to the
Purchaser at the address set forth in Section 10. Within 4 business days after
the Closing, each Seller shall deliver the Seller's Shares to be transferred to
the Purchaser pursuant to Section 1.1 above to Astralis's then transfer agent,
together with any other necessary documents (as required under Section 1.3) and
shall instruct the transfer agent to deliver to the Purchaser one or more
certificates evidencing the Sellers' Shares duly registered in the name of the
Purchaser or its nominee(s). Each Seller shall provide copies of the documents
submitted to Astralis's transfer agent within 2 business days following such
submission. Within 5 business days of receipt of the Sellers' Shares duly
registered in the name of the Purchaser or its nominee(s), the Purchaser shall
allot the SkyePharma Shares to be issued to each Seller pursuant to Section 1.2
above and deliver to each Seller one certificate in respect thereof.
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2. Representations and Warranties of the Sellers
Each Seller hereby represents and warrants to the Purchaser that:
(a) Execution and Delivery. This Agreement has been duly executed
and delivered by each Seller and represents a valid and
binding obligation of such Seller, enforceable in accordance
with its terms.
(b) Share Ownership. Each Seller has full power and capacity to
sell, transfer and deliver the Seller's Shares to the
Purchaser. Each Seller has good and valid title to the
Seller's Shares, free and clear of any options, calls, rights,
contracts, commitments, demands, liens, charges, security
interests, equities, claims or encumbrances whatsoever
(including any restriction on the right to vote, sell or
otherwise dispose of any stock or other ownership interest)
("Encumbrances"), other ------------ than restrictions on
voting rights contained in the Stockholders Agreement, and,
upon delivery of such Seller's Shares and payment therefor
pursuant hereto, good and valid title to the Seller's Shares,
free and clear of all Encumbrances, other than restrictions on
voting rights contained in the Stockholders Agreement, will
pass to the Purchaser.
(c) Conflicts, Consents and Approvals. The sale of the Sellers'
Shares hereunder and the compliance by such Seller with all of
the provisions of this Agreement and the consummation of the
transactions contemplated herein will not (i) conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any contract,
agreement or instrument to which such Seller is a party or by
which such Seller is bound, or to which any of the property or
assets of such Seller is subject, or (ii) violate any
judgment, order, writ, injunction, decree, statute, law,
ordinance, rule or regulation applicable to such Seller or any
of their respective properties or assets, or require any
notice, report or other filing to be made with, or any
consent, registration, approval, permit or authorization to be
obtained from, any Governmental Authority or third party,
except such consents or filings as have already been duly and
validly obtained or filed, or with respect to any filings that
must be made after the Closing, as will be filed in a timely
manner (except in cases (i) and (ii) where such conflicts,
breaches or violations of or defaults under agreements or
instruments or violations of statutes or regulations or
failures to obtain consents or make filings, individually or
in the aggregate, could not reasonably be expected to have a
material adverse effect on the ability of such Seller or the
Purchaser to consummate the transactions contemplated hereby).
For the purposes of this Agreement, "Governmental Authority"
means any federal, national or state government, political
subdivision thereof or governmental or regulatory authority,
agency, board, bureau, commission, court or self-regulatory
organization.
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(d) Investment Representations.
(i) Accredited Investor. Each Seller is an "accredited
investor" (as such term is defined in Rule 501 of
Regulation D ("Regulation D") promulgated under the
Securities Act of 1933, as amended (the "Securities
Act")).
(ii) Purchaser Information. Each Seller has adequate
information concerning the business and financial
condition of the Purchaser to make an informed
decision regarding the SkyePharma Share Consideration
and has independently and without reliance upon the
Purchaser or its agents made his own analysis and
decision to accept the SkyePharma Share Consideration
as consideration pursuant hereto. Each Seller has
also had the opportunity to ask questions of and
receive answers from the Purchaser's management
regarding the terms and conditions of this
investment.
(iii) Restricted Securities. Each Seller acknowledges that
the SkyePharma Shares to be issued as SkyePharma
Share Consideration are "restricted securities" under
the Securities Act and have not been and will not be
registered under the Securities Act or the securities
laws of any state or other jurisdiction and cannot be
disposed of unless they are subsequently registered
under the Securities Act or an exemption from such
registration and any applicable state laws is
available, and will be subject to the additional
restrictions on and conditions to transfer contained
in Section 6 hereof.
(iv) Acquisition for Own Account. Each Seller is acquiring
the SkyePharma Shares for the Seller's own account
for investment only, and not with a view to, or any
present intention of, effecting a distribution of
such securities or any part thereof.
(v) No Brokers. No agent, broker, person or firm acting
on behalf of the Sellers is or will be entitled to
any advisory commission or broker's or finder's fee
in connection with this Agreement or any of the
transactions contemplated hereby.
(vi) Residence. The Sellers reside in the state or country
identified in Section 10 hereof.
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3. Representations and Warranties of the Purchaser
The Purchaser hereby represents and warrants to, and agrees with, the
Sellers as follows:
(a) Organization and Existence. The Purchaser is a company
duly organized and validly existing under the laws of England and
Wales.
(b) Authorization, Execution and Delivery. The Purchaser has
all requisite corporate power and authority to execute this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement have
been, and the consummation of the transactions contemplated hereby in
connection with the Closing, will have been duly authorized by all
necessary corporate action on the part of the Purchaser. This Agreement
has been duly executed and delivered by the Purchaser and this
Agreement constitutes the legal, valid, binding and enforceable
obligation of the Purchaser, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors'
rights and general principles of equity.
(c) Valid Issuance of Shares. Prior to the issuance of the
SkyePharma Share Consideration, the Purchaser will have taken all
necessary corporate action to permit it to issue the SkyePharma Share
Consideration. The SkyePharma Shares, when issued, will be validly
issued and fully paid up and no further contributions in respect of
such SkyePharma Shares will be required to be made to the Purchaser by
the holder thereof, by reason solely of his being such holder, and no
stockholder of the Purchaser will have any preemptive right of
subscription or purchase in respect thereof.
(d) Investment Representations.
(i) Accredited Investor. The Purchaser is an
"accredited investor" (as such term is defined in Regulation
D).
(ii) Information. The Purchaser has adequate
information concerning the business and financial condition of
Astralis to make an informed decision regarding the Sellers'
Shares and has independently and without reliance upon the
Sellers or their agents made its own analysis and decision to
purchase the Sellers' Shares pursuant hereto.
(iii) Restricted Securities. The Purchaser
acknowledges that the Sellers' Shares to be purchased
hereunder are "restricted securities" under the Securities Act
and have not been registered under the Securities Act or the
securities laws of any state or other jurisdiction and cannot
be disposed of unless they are subsequently registered under
the Securities Act or an exemption from such registration and
any applicable state laws is available.
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(iv) Acquisition for Own Account. The Purchaser is
acquiring the Sellers' Shares for the Purchaser's own account
for investment only, and not with a view to, or any present
intention of, effecting a distribution of such securities or
any part thereof.
(v) No Brokers. No agent, broker, person or firm
acting on behalf of the Purchaser is or will be entitled to
any advisory commission or broker's or finder's fee from the
Purchaser in connection with this Agreement or any of the
transactions contemplated hereby.
(e) London Stock Exchange. Notwithstanding the restrictions
set forth in Section 6, the Purchaser represents and warrants to each
Seller that upon admission of the SkyePharma Shares to be issued as
consideration hereunder to each Seller pursuant to Section 1.2 above to
listing on the Official List maintained by the UK Listing Authority and
to trading on the London Stock Exchange ("Admission") (i) the
SkyePharma Shares (A) will --------- be readily and immediately
saleable on the London Stock Exchange; (B) will not need to be
registered on the London Stock Exchange; (C) will not need to be held
for any period or length of time prior to said sale; and (ii) there is
nothing in the laws of the United Kingdom that will prevent the Sellers
from selling the SkyePharma Shares immediately following Admission on
the London Stock Exchange. Purchaser undertakes to obtain Admission of
the SkyePharma Shares within 15 business days following the receipt
from Astralis's transfer agent of the Sellers' Shares duly registered
in the name of the Purchaser or its nominee(s). The Purchaser further
undertakes to provide each Seller with a copy of the documents
submitted by the Purchaser to obtain Admission within two (2) business
days following such submission and to notify in writing each Seller of
Admission within two (2) business days following its receipt of
confirmation of Admission.
(f) No Solicitation. The Purchaser's offer to purchase the
Sellers' Shares was not solicited by the Sellers.
4. Conditions to Obligations of the Purchaser at the Closing
The obligation of the Purchaser to consummate the Closing is subject to
the satisfaction of the following conditions on or prior to such Closing, any of
which may be waived in whole or in part by the Purchaser:
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4.1 Representations and Warranties
Each representation and warranty of each Seller shall be true and
correct in all material respects as of the Closing Date; each Seller shall have
complied in all material respects with his covenants and agreements to be
performed at or prior to the Closing Date; and each Seller shall have delivered
to the Purchaser a certificate dated the Closing Date, executed in a form
previously agreed between the parties, certifying as to the foregoing matters.
4.2 Assignment Agreement
The Purchaser shall have become obligated to pay the Assignment Share
Consideration pursuant to Section 4 of the Assignment Agreement as a result of
inter alia valid appointment the Additional Skye Directors (as such term is
defined in the Assignment Agreement) to the Board of Directors of Astralis.
4.3 No Conflict with Astralis Articles or By-Laws
The sale of the Sellers' Shares hereunder and the compliance by the
parties with all of provisions of this Agreement and the consummation of the
transactions contemplated herein shall not result in any conflict with, or
result in any violation or breach of, any provision of the Articles of
Incorporation or of the by-laws of Astralis.
4.4 No Litigation
No litigation or other formal proceeding shall have been instituted by
any person or threatened by any Governmental Authority seeking to enjoin any of
the transactions contemplated hereby or seeking damages in respect thereof, and
no injunction or temporary restraining order shall have been issued with respect
to any of the transactions contemplated hereby.
4.5 No Material Adverse Change
There shall have been no material adverse change in the financial
condition, properties, prospects, business or results of operations of Astralis
from the date of execution of this Agreement until the date of the Closing.
4.6 Governmental Consents and Notices
Any consents from or notices to any Governmental Authorities required
to be made or obtained by the Purchaser in connection with the transaction shall
have been obtained or made.
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5. Conditions to Obligations of Each Seller at the Closing
The obligations of the Sellers to consummate the Closing, is subject to
the satisfaction of the following conditions on or prior to such Closing, any of
which may be waived in whole or in part by the Sellers:
5.1 Representations and Warranties and Covenants
Each representation and warranty of the Purchaser shall be true and
correct in all material respects as of the Closing Date; the Purchaser shall
have complied in all material respects with its covenants and agreements to be
performed at or prior to the Closing Date; and the Purchaser shall have
delivered to each Seller a certificate of the chief financial officer of the
Purchaser in a form previously agreed between the parties, certifying as to the
foregoing matters.
5.2 No Litigation
No litigation or other formal proceeding shall have been instituted by
any person or threatened by any Governmental Authority seeking to enjoin any of
the transactions contemplated hereby or seeking damages in respect thereof, and
no injunction or temporary restraining order shall have been issued with respect
to any of the transactions contemplated hereby.
5.3 No Material Adverse Change
There shall have been no material adverse change in the financial
condition, properties, prospects, business or results of operations of the
Purchaser from the date of execution of this Agreement until the date of the
Closing.
6. Covenants
6.1 Lock-Up
The SkyePharma Share Consideration is subject to the lock-up provisions
contained in the SkyePharma Share Consideration Lock Up Agreements. The
SkyePharma Share Consideration Lock Up Agreements will be entered into by each
Seller with effect from the Closing Date. The Lock-Up period shall begin on the
Closing Date. Without limiting the foregoing, each Seller agrees that, until
such time as such Seller has sold all of his SkyePharma Shares in accordance
with this Agreement, such Seller shall sell securities of the Purchaser only in
compliance with the provisions of this Agreement and only through one of two
brokers which shall be nominated in writing by the Purchaser from time to time
upon written request by a Seller to sell any such securities (the "Appointed
Brokers"). The Purchaser shall provide its nominations to the relevant Seller
within three (3) business days of receipt of the Seller's written request. In
connection with any sale, the Seller shall choose, in its discretion, one of the
Appointed Brokers to effect such sale, and shall negotiate the terms of any sale
with such broker.
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Each Seller further agrees that he shall not, prior to two years after
the issue of the SkyePharma Share Consideration, offer, sell, contract to sell
or otherwise dispose of or deliver any SkyePharma Shares constituting the
SkyePharma Share Consideration unless: (i) the SkyePharma Shares are sold
outside the United States in a transaction complying with Regulation S under the
Securities Act, including through the facilities of the London Stock Exchange
provided that neither such Seller nor anyone acting on his behalf knows that the
transaction has been prearranged with a buyer in the United States; or (ii) the
SkyePharma Shares are sold in a transaction that does not require registration
under the Securities Act or any applicable laws and regulations of the states of
the United States governing the offer and sale of securities and, prior to and
as a condition to the execution of the offer, sale or delivery, such Seller has
furnished to the Purchaser an opinion of counsel satisfactory to the Purchaser
to such effect, unless the Purchaser waives receipt of such opinion.
Furthermore, each Seller acknowledges that the Purchaser shall place upon each
certificate representing the SkyePharma Share Consideration, a legend
substantially in the following form:
"The securities represented by this certificate have been
issued without registration or qualification under the
Securities Act of 1933, as amended (the "Securities Act"), or
any applicable state securities laws. Such securities may not
be sold, assigned, transferred or otherwise disposed of unless
(i) the securities represented by this certificate are sold
outside the United States in a transaction complying with
Regulation S, including through the facilities of the London
Stock Exchange provided that neither the holder or anyone
acting on the holder's behalf knows that the transaction has
been prearranged with a buyer in the United States; or (ii)
the shares are sold in a transaction that does not require
registration under the Securities Act or any applicable laws
and regulations of the states of the United States governing
the offer and sale of securities, and prior to the offer,
sale, or delivery, the holder has furnished to SkyePharma an
opinion of counsel satisfactory to SkyePharma to such effect."
7. Indemnification
7.1 Indemnification by the Sellers
Each Seller hereby agrees to indemnify and hold harmless the Purchaser
and its respective affiliates, directors, officers and employees (collectively,
the "Purchaser Indemnified Parties") from and against any and all liabilities,
judgments, claims, settlements, losses, damages, reasonable fees (including
attorneys' and other experts' fees and disbursements), liens, taxes, penalties,
obligations and expenses (collectively, "Losses") incurred or suffered by any
such person arising from, by reason of or in connection with any
misrepresentation or breach of any representation, warranty or covenant of such
Seller contained in this Agreement or any certificate or other document
delivered by such Seller under this Agreement. This indemnification provision
shall be in addition to the rights of the Purchaser to bring an action against
such Seller for breach of any term of this Agreement.
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7.2 Indemnification by the Purchaser
The Purchaser hereby agrees to indemnify and hold harmless each Seller
from and against any and all Losses incurred or suffered by any such person
arising from, by reason of or in connection with any misrepresentation or breach
of any representation, warranty or covenant of the Purchaser contained in this
Agreement or any certificate or other document delivered by the Purchaser under
this Agreement. This indemnification provision shall be in addition to the
rights of each Seller to bring an action against the Purchaser for breach of any
term of this Agreement.
7.3 Limitation
Notwithstanding the foregoing, the obligations to indemnify and hold
harmless pursuant to Sections 7.1 and 7.2 shall in each case be limited to an
aggregate amount equal to U.S. Dollars 4,000,000 (the "cap on indemnity"). The
cap on indemnity shall reduce to U.S. Dollars 3,000,000 from the date falling
one (1) year after the date of this Agreement onwards; the cap on indemnity
shall reduce further to U.S. Dollars 2,000,000 from the date falling two (2)
years after the date of this Agreement onwards, provided that, if any claim,
litigation or other proceeding is commenced against the Purchaser Indemnified
Parties or the Sellers, or any other Losses arise which are covered by Section
7.1 or Section 7.2, as applicable, the date of the commencement of the claim,
litigation or proceedings, or the date of any other Loss first arising
(whichever is the earliest) shall determine the amount of the cap on indemnity
applicable hereunder.
8. Survival of Representations, Warranties and Agreements
Notwithstanding any investigation conducted or notice or knowledge
obtained by or on behalf of any party hereto, the respective representations,
indemnities, covenants and warranties of the Purchaser and Sellers shall survive
the execution of this Agreement, the Closing hereof, the delivery of the
SkyePharma Shares and/or termination of this Agreement prior thereto.
9. Expenses
Each of the Sellers and the Purchaser shall bear his or its own
expenses in connection with the preparation for and consummation of the
transactions contemplated by this Agreement.
10. Notices
All notices, advices and communications to be given or otherwise made
to any party to this Agreement shall be deemed to be sufficient if contained in
a written instrument delivered in person, by courier or by telecopier, or by
electronic mail, with a copy thereof to be sent by mail (as aforesaid) within 24
hours of such electronic mail, addressed to such party at the address set forth
below or at such other address as may hereafter be designated in writing by the
addressee to the addresser listing all parties:
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if to the Sellers, to:
Mr. ▇▇▇▇ Ajnsztajn
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇--Resident of Venezuela c/o ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq. The Galleria ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ with a copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
The Galleria
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
-and-
if to the Purchaser, to:
SkyePharma PLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: Finance Director
Telecopier: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
11
or to such other address as the party to whom notice is to be given may have
furnished to the other parties hereto in writing in accordance herewith. Any
such notice or communication shall be deemed to have been delivered and received
(i) in the case of personal delivery or delivery by telecopier, on the date of
such delivery and (ii) in the case of nationally-recognized overnight courier,
on the second business day after the date when sent. As used in this Section
y10, "business day" shall mean any day other than a day on which banking
institutions in the State of New York are legally closed, or authorized to
close, for business.
11. Successors and Assigns; No Third Party Beneficiaries
Except as otherwise expressly provided herein, this Agreement shall
bind and inure to the benefit of the parties hereto and the respective
successors and permitted assigns of the parties hereto. Neither this Agreement,
nor the rights and obligations hereunder, is assignable by any party hereto
(except to a successor-in-interest by operation of law) without the prior
written consent of the other parties hereto. Any such purported assignment made
without such prior written consent shall be null and void. No person other than
the parties hereto and the Purchaser Indemnified Parties (in respect of Section
y7 only) and their respective successors and permitted assigns shall have any
rights or claims under this Agreement.
12. Entire Agreement
This Agreement and the other writings or documents referred to herein
or delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
13. Amendments
The terms and provisions of this Agreement may be amended only with the
written consent of each of the parties hereto. Any provision hereof may be
waived in writing by the party or parties entitled to enforce such provision. No
delay in exercising any right, power or privilege hereunder will operate as a
waiver thereof, nor will any waiver on the part of any party of any right, power
or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder nor will any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
14. Termination
This Agreement may be terminated by the mutual written consent of each
party hereto. This Agreement may be terminated by the Purchaser if either Seller
is in material breach of this Agreement and such breach is not cured within ten
days following the delivery of written notice thereof. This Agreement may be
terminated by the Sellers if the Purchaser is in material breach of this
Agreement and such breach is not cured within ten days following the delivery of
written notice thereof. Such termination right may be exercised only by the
delivery of written notice of such termination by the terminating party to the
other party and such termination will not relieve any party of liability for its
prior breach.
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15. Publicity
The Sellers shall not issue or cause the publication of any press
release or other public announcement with respect to this Agreement and the
transactions contemplated hereby without the express prior written consent of
the Purchaser.
16. Counterparts
This Agreement may be executed in any number of separate counterparts,
and each such counterpart shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
17. Headings
The headings of the various sections of this Agreement and of the
schedules have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
18. Governing Law; Submission to Jurisdiction
This Agreement shall be construed in accordance with the laws of the
State of New Jersey, without regard to conflict of law provisions thereof. Each
party hereto agrees that any action or proceeding in respect of any claim
arising out of or related to this agreement or the transactions contained in and
contemplated by this Agreement, whether in tort or contract or at law or in
equity, may be instituted in any state or federal court located in Newark or
Trenton, New Jersey (the "New Jersey Courts") and solely in connection with
claims arising under this Agreement or the transactions contained in or
contemplated by this Agreement (i) submits to the non-exclusive jurisdiction of
the New Jersey Courts, (ii) waives any objection to laying venue in any such
action or proceeding in the New Jersey Courts, (iii) waives any objection that
the New Jersey Courts are an inconvenient forum or do not have jurisdiction over
any party hereto, (iv) waives any right to a trial by jury and (v) agrees that
service of process upon such party in any such action or proceeding shall be
effective if notice is given in accordance with Section 10 of this Agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Stock Purchase
Agreement to be executed as of the date first written above.
▇▇▇▇ Ajnsztajn
/s/ ▇▇▇▇ Ajnsztajn
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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SkyePharma PLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Finance Director
SPA-1