EXHIBIT 4
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AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT
BY AND AMONG
ASTRALIS LTD.
SKYEPHARMA PLC
THE PARTIES LISTED IN ANNEX A HERETO
AND
THE PARTIES WHO EXECUTE ADDENDUMS
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This is an amendment (this "Amendment") dated January 20, 2004 to the
Stockholders Agreement (the "Agreement") dated as of December 10, 2001 by and
among Astralis Ltd., a Delaware corporation (the "Corporation"), SkyePharma PLC,
a company incorporated under the laws of England and Wales ("SkyePharma"), those
parties listed in Annex A hereto (the "Original Stockholders"), and the parties
subject to an Addendum. All parties to this Amendment, the Agreement and any
Addendum, with the exception of the Corporation, are collectively referred to as
the "Stockholders."
RECITALS
WHEREAS, the Original Stockholders beneficially own shares of the
issued and outstanding voting Common Stock of the Corporation, par value $0.0001
per share ("Common Stock") or are otherwise Founders (as hereinafter defined) of
the Corporation;
WHEREAS, the Corporation and SkyePharma entered into a Purchase
Agreement, dated as of December 10, 2001 (the "Purchase Agreement"), pursuant to
which SkyePharma purchased 2,000,000 shares of the Corporation's Series A
Convertible Preferred Stock, par value $0.001 per share (the "Convertible
Preferred Stock") and in connection with the execution of the Purchase
Agreement, the Corporation and certain of the Original Stockholders entered into
the Agreement; and
WHEREAS, the Corporation and the Original Stockholders desire to amend
the Agreement in connection with the conversion of SkyePharma of the Convertible
Preferred Stock on the date hereof pursuant to the terms of the Omnibus
Conversion Agreement, dated as of January 12, 2004, by and between the
Corporation and SkyePharma (the "Omnibus Conversion Agreement").
NOW THEREFORE, in consideration of the mutual promises and covenants
set forth in this Amendment and other good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. General.
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The parties acknowledge that all provisions of the Agreement, except as
amended hereby, shall remain in full force and effect.
2. Definitions.
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Capitalized terms used herein and not defined shall have the meanings
assigned to them in the Agreement. Whenever appearing in the Agreement, and any
other documents executed in connection with the Purchase Agreement, the term
"Agreement" shall be deemed to mean the Agreement as amended.
3. Section 2.1 of the Agreement.
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Section 2.1 of the Agreement is hereby deleted and replaced in its
entirety as follows:
2.1 Board of Directors.
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(a) From and after the date of this Amendment, at all times while the
Agreement is in effect, the Board of Directors of the Corporation shall be
comprised of at least seven Directors and shall include at least two Independent
Directors. The Board of Directors of the Corporation shall at all times use its
best efforts to nominate at least two persons for election by the holders of
shares of Common Stock to serve as Independent Directors. Fabien Pictet shall
not, solely as a result of his involvement in the Private Placement (as such
term is defined in the Omnibus Conversion Agreement), be disqualified from being
an Independent Director. The parties agree that other factors, relationships or
involvement in other transactions with, by or on behalf of the Corporation
(whether of a similar nature to the Private Placement or not) could be
considered in the future in determining whether Mr. Pictet may qualify as an
Independent Director. However, as of the date of this Amendment, the parties
agree that Mr. Pictet qualifies as an Independent Director.
(b) From and after the date of this Amendment, at all times while this
Section 2.1(b) is in effect, SkyePharma shall have the right to nominate one
Director (the "SkyePharma Director"), who shall initially be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
(c) From and after the date of this Amendment until the third
anniversary of the date of this Amendment, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇, ▇▇▇▇ Ajnsztajn,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ (each a "Founder" and collectively, the
"Founders") shall each have the right to nominate one Director (each a
"Founder's Director" and collectively, the "Founders' Directors"). Such
Founders' Directors shall initially be ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇, ▇▇▇▇ Ajnsztajn,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇. A Stockholder shall cease to be a Founder and
shall be unable to exercise the rights granted to Founders hereunder including
under Sections 2.1(c), 2.1(d), 2.1(e), 2.2(c) and 2.2(d) of this Agreement (but
shall for all other purposes continue to be a Stockholder) if, (i) in the case
of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇ and ▇▇▇▇ Ajnsztajn, (x) such Founder shall no longer
beneficially own, in the aggregate, at least 25% of the shares of Common Stock
held by such Founder on the date hereof and (y) such Founder ceases to be an
officer of the Corporation (unless such Founder is terminated other than for
cause) or (ii) in the case of ▇▇▇▇ ▇▇▇▇▇▇▇, such Founder ceases to be an officer
of the Corporation (unless such Founder is terminated other than for cause) or
(iii) in the case of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, such Founder shall no longer beneficially
own, in the aggregate, at least 25% of the shares of Common Stock held by such
Founder on the date hereof.
(d) If, at any time when SkyePharma has the ability to appoint the
SkyePharma Director under Section 2.1(b) above, SkyePharma requests that the
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SkyePharma Director be removed (with or without cause) by written notice thereof
to the other Stockholders, then each Stockholder shall vote all shares of Common
Stock owned or held of record by such Stockholder to effect the removal and vote
for the replacement Director designated by SkyePharma. If, at any time when a
Founder has the ability to appoint a Founders Director under Section 2.1(c)
above, such Founder requests that the Founders Director he or she nominated be
removed (with or without cause) by written notice thereof to the other
Stockholders, then each Stockholder shall vote all shares of Common Stock owned
or held of record by such Stockholder to effect the removal and vote for the
replacement Director designated by such Founder.
(e) If, at any time when SkyePharma has the ability to appoint the
SkyePharma Director under Section 2.1(b) above, a vacancy is created on the
Board of Directors at any time by reason of death, disability, retirement,
resignation, removal or otherwise of the SkyePharma Director, SkyePharma shall
be entitled to nominate a successor Director to fill the vacancy created
thereby. If, at any time when a Founder has the ability to appoint a Founder's
Director under Section 2.1(c) above, a vacancy is created on the Board of
Directors at any time by reason of death, disability, retirement, resignation,
removal or otherwise of a Founder's Director, the Founder who nominated such
Founder's Director shall be entitled to nominate a successor Director to fill
the vacancy created thereby.
(f) At all times while this Agreement is in effect, a quorum of the
Board of Directors shall consist of a majority of the entire Board of Directors
and must include at least one Independent Director.
(g) The Corporation agrees to use its best efforts to ensure that the
rights granted hereunder are effective and that the parties hereto enjoy the
benefits hereof. Such actions include, without limitation, the use of the
Corporation's best efforts to cause the nomination and election of the directors
designated as provided above.
4. Section 2.2 of the Agreement.
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Section 2.2 of the Agreement is hereby deleted in its entirety and
replaced as follows:
2.2 Stockholder Votes.
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(a) Each Stockholder shall vote its shares of Common Stock
(including any shares of Common Stock issued upon exercise of any
Warrants) at any regular or special meeting of stockholders of the
Corporation or in any written consent executed in lieu of such a
meeting of stockholders of the Corporation, and shall take all other
actions necessary, to elect the Independent Directors nominated by the
Board of Directors as described in Section 2.1(a) of this Amendment.
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(b) Each Stockholder shall vote its shares of Common Stock,
(including any shares of Common Stock issued upon exercise of any
Warrants) at any regular or special meeting of stockholders of the
Corporation or in any written consent executed in lieu of such a
meeting of stockholders of the Corporation, and shall take all other
actions necessary, to elect the nominee if so nominated to the Board
of Directors by SkyePharma pursuant to Section 2.1(b) or 2.1(d) or
2.1(e) of this Amendment.
(c) Until the third anniversary of the date of this Amendment,
SkyePharma shall vote its shares of Common Stock (including any shares
of Common Stock issued upon exercise of any Warrants) at any regular
or special meeting of stockholders of the Corporation or in any
written consent executed in lieu of such a meeting of stockholders of
the Corporation, and shall take all other actions necessary, to elect
the nominee if so nominated to the Board of Directors by the Founders
pursuant to Section 2.1(c), 2.1(d) or 2.1(e) of this Amendment.
(d) Until the third anniversary of the date of this Amendment,
when and as instructed by the Founders in accordance with Section
2.2(e), SkyePharma shall vote all of its shares of Common Stock in
favor of any resolution approved by the Board of Directors (provided,
however, that the resolution shall have been approved by all directors
who qualify as Independent Directors currently serving as Directors)
pursuant to which there is proposed the following:
(i) an amendment to the Certificate of Incorporation
providing solely for an increase in authorized capital stock of the
Corporation or a change in capital stock by means of a stock split,
reverse stock split or stock dividend;
(ii) an adoption of, or any amendment to, any employee
benefit plan generally applicable to all employees of the Corporation,
including without limitation, a stock option plan, stock issuance plan
or rights plan;
(iii) the issuance of additional securities for cash (if
required to be solicited in accordance with the rules of the Nasdaq or
other market or stock exchange upon which the Corporation's Common
Stock is listed or traded); or
(iv) the sale of all outstanding capital stock of the
Corporation, the sale of all or substantially all of the Corporation's
assets or the merger of the Corporation with another entity, as a
result of which the stockholders of the Corporation immediately prior
to such transaction hold less than 50% of the combined entity,
provided, however, that SkyePharma will only be required to vote in
favor of a transaction in which (x) SkyePharma will receive the same
consideration for its shares of Common Stock as all other holders of
Common Stock and will be able to participate in such transaction upon
the same terms as the most favorable terms available to the Founders
or any other stockholders of the Corporation and (y) the total
consideration for such transaction is greater than $135 million.
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(e) Notwithstanding any other provisions of this Agreement, (i)
for purposes of nominations, appointments or instructions to vote for
Founders' Directors pursuant to Section 2.1 of this Agreement, no such
nomination, appointment or instruction to vote shall be binding with
respect to any Stockholder unless such Stockholder shall have received
a notice signed by the Founder nominating such Founder's Director
containing clear instructions with respect to the voting of the shares
held by such Stockholder and (ii) for purposes of nominations,
appointments and instructions to vote required or permitted to be
given by the Founders, other than the election of Founders' Directors
pursuant to Section 2.1 of this Agreement, no such nomination,
appointment or instruction to vote shall be binding with respect to
any Stockholder unless such Stockholder shall have received a notice,
signed by more than a simple majority of the Founders, containing
clear instructions with respect to the voting of the shares held by
such Stockholder.
(f) Each Stockholder agrees that such Stockholder shall not
deposit any shares of Common Stock in a voting trust or subject the
shares of Common Stock to any agreement, arrangement or understanding
with respect to the voting of the shares of Common Stock, to the
extent such arrangement or trust is inconsistent with the Agreement.
5. Ownership of Shares.
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Annex A hereto correctly sets forth, as of the date of this Amendment,
the number of shares of Common Stock and Warrants owned beneficially and of
record by each Original Stockholder.
6. Section 3.1 of the Agreement
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(a) The first sentence of Section 3.1 of the Agreement is hereby
amended to read as follows:
Other than Transfers to the public pursuant to (i) an effective
Registration Statement or (ii) on a recognized national securities
exchange, the Nasdaq Stock Market, the Nasdaq SmallCap Market, the OTC
Bulletin Board or any similar quotation and reporting service, each
Stockholder (other than SkyePharma) will cause any proposed transferee
of any share of Common Stock or of any Warrant held by him or it to
agree to take and hold such share of Common Stock or Warrant, as the
case may be, subject to the provisions and upon the conditions
specified in this Agreement and to become a party to this Agreement as
set forth in the Addendum to this Agreement.
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(b) The following subparagraph is added to Section 3.1 of the
Agreement:
In the event SkyePharma transfers any share of Common Stock or any
Warrant to any Affiliate, SkyePharma will cause any such proposed Affiliate
transferee of any share of Common Stock or of any Warrant held by it to agree to
take and hold such share of Common Stock or Warrant, as the case may be, subject
to the provisions and upon the conditions specified in this Agreement and to
become a party to this Agreement as set forth in the Addendum to this Agreement.
No such Transfer shall be binding upon the Corporation unless:
(i) such transferee shall have executed and delivered to the
Corporation, as a condition precedent to any Transfer of shares of
Common Stock or of any Warrant, a written agreement confirming that
such transferee agrees to be bound by the terms of this Agreement; and
(ii) the certificates issued to such transferee which
represent the shares of Common Stock or Warrants so Transferred shall
bear the legends provided in Section 4.2.
7. Section 4.3 of the Agreement.
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Section 4.3 of the Agreement is hereby deleted and replaced in its
entirety as follows:
4.3 Notices.
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All notices, requests, demands and other communications which are
required or may be given under the Agreement shall be in writing and shall be
deemed to have been duly given when received if personally delivered; when
transmitted, if transmitted by telecopy, electronic or digital transmission
method; the day after it is sent, if sent for next day delivery to a U.S.
address by recognized overnight delivery service (e.g., Federal Express); and
upon receipt, if sent by registered or certified mail (or any substantially
similar form of mail), postage prepaid and return receipt requested. In each
case notice shall be sent to:
If to the Corporation addressed to:
Astralis Ltd.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇ Ajnsztajn
Telecopier: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇▇▇▇▇ & English, LLP
4 Gateway Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
If to SkyePharma addressed to:
SkyePharma PLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Company Secretary
Telecopier: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
If to any Stockholder (other than SkyePharma), to such Stockholder at
the address indicated in Annex A hereto or in the Addendum. Changes in notice
addresses may be made by a notice delivered to the Corporation pursuant to this
Section 4.3.
8. Section 4.5(a) of the Agreement.
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Section 4.5(a) of the Agreement is hereby deleted and replaced in its
entirety as follows:
4.5 Agreement; Amendments and Waivers; Addendums.
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(a) This Agreement constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties. This Agreement shall terminate upon the later to occur of (i) the
SkyePharma Termination Date or (ii) the third anniversary of this Amendment.
Further, this Agreement may be terminated by the mutual written consent of the
parties hereto. For purposes hereof, the "SkyePharma Termination Date" shall
mean the date on which SkyePharma shall no longer beneficially own, in the
aggregate, at least 20% of the shares of the outstanding Common Stock of the
Corporation, calculated by (i) including in the numerator any shares of Common
Stock into which securities held by SkyePharma are exercisable or convertible
and (ii) including in the denominator only those shares actually issued and
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outstanding, and not including stock held in the treasury or repurchased by the
Corporation. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided for herein or therein.
9. Section 4.6 of the Agreement.
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Section 4.6 of the Agreement is hereby deleted and replaced in its
entirety as follows:
4.6 Successors and Assigns.
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This Agreement shall inure to the benefit of, and be binding upon, the
Corporation, each Stockholder and their respective successors, assigns, heirs,
executors and administration. Notwithstanding the above, the rights that are
specific to the Founders hereunder (and the corresponding obligations of
SkyePharma), including the right to nominate a Founders Director pursuant to
Section 2.1(c), the right to require SkyePharma to vote in favor of such
Founders Director under Section 2.2(c) and the right to require SkyePharma to
vote its shares in favor of certain transactions approved by the Board of
Directors under Section 2.2(d) shall not be transferable or assignable by such
Founder without the prior written consent of SkyePharma, such consent not to be
unreasonably withheld.
10. Integration.
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This Amendment together with the Agreement constitute the entire
agreement and understanding among the parties relating to the subject matter
hereof and thereof and supersede all prior proposals, negotiations, agreements
and understandings relating to such subject matter.
11. Amendments; Waivers.
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No term, covenant, agreement or condition of this Amendment may be
amended, or compliance therewith waived (either generally or in a particular
instance and either retroactively or prospectively), unless agreed to in writing
by the party to be bound thereby.
12. Severability.
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In the event that any one or more of the provisions contained in this
Amendment shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, then to the maximum extent permitted by law, such invalidity,
illegibility or unenforceability shall not affect any other provision of this
Amendment.
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13. Incorporation by Reference.
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This Amendment is incorporated by reference to the Agreement. Except as
otherwise provided herein, all of the provisions of the Agreement are hereby
confirmed and ratified and shall remain in full force and effect as of the date
of this Amendment.
14. Governing Law; Successors and Assigns.
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This Amendment shall be construed in accordance with the laws of the
State of New York, without regard to conflict of law provisions thereof. Each
party hereto agrees that it shall bring up 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 Amendment, whether in tort or contract or
at law or in equity, exclusively in the United States District Court for the
Southern District of New York or, if such court is not available, the Supreme
Court of the State of New York for the county of New York (the "Chosen Courts")
and solely in connection with claims arising under the Agreement or the
transactions contained in or contemplated by this Amendment (i) irrevocably
submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any
objection to laying venue in any such action or proceeding in the Chosen Courts
and agrees not to commence any action in respect of any such claim in any other
court or forum, (iii) waives any objection that the Chosen 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 4.3 of the Agreement.
15. Counterparts.
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This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
16. Further Assurances.
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Each of the parties shall execute and deliver such further instruments
and documents and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby.
17. Cumulative Remedies.
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All rights and remedies of each party hereto are cumulative of each
other and of every other right or remedy such party may otherwise have at law or
in equity, and the exercise of one or more rights or remedies shall not
prejudice or impair the concurrent or subsequent exercise of other rights or
remedies.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
Astralis Ltd.
By: /s/ ▇▇▇▇ AJNSZTAJN
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Name: ▇▇▇▇ Ajnsztajn
Title: Chief Executive Officer
SkyePharma PLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Finance Director
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇
/s/ ▇▇▇▇ AJNSZTAJN
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▇▇▇▇ Ajnsztajn
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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