-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q9/QcbK2Fw0E+CVbAwopJwBczGKgbGiSqislp9KU3iCpaOTnXF/9EQ22v3uCLkmt OPDd7SaqZVoPNPkkQB9aVw== 0000891836-04-000015.txt : 20040122 0000891836-04-000015.hdr.sgml : 20040122 20040122165401 ACCESSION NUMBER: 0000891836-04-000015 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040122 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ASTRALIS LTD CENTRAL INDEX KEY: 0001099066 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 841508866 STATE OF INCORPORATION: CO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-62109 FILM NUMBER: 04538011 BUSINESS ADDRESS: STREET 1: 135 COLUMBIA TURNPIKE STREET 2: SUITE 301 CITY: FLORHAM PARK STATE: NJ ZIP: 07932 BUSINESS PHONE: 9733778008 MAIL ADDRESS: STREET 1: 75 PASSAIC AVE CITY: FAIRFIELD STATE: NJ ZIP: 07004 FORMER COMPANY: FORMER CONFORMED NAME: ASTRALIS PHARMACEUTICALS LTD DATE OF NAME CHANGE: 20011114 FORMER COMPANY: FORMER CONFORMED NAME: HERCULES DEVELOPMENT GROUP INC DATE OF NAME CHANGE: 20000630 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SKYEPHARMA PLC CENTRAL INDEX KEY: 0001018117 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 000000000 STATE OF INCORPORATION: X0 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 105 PICADILLY CITY: LONDON W1J 7NJ STATE: X0 BUSINESS PHONE: 0114417149 MAIL ADDRESS: STREET 1: 105 PICADILLY CITY: LONDON W1J 7NJ STATE: X0 SC 13D/A 1 sc0010.txt SCHEDULE 13, AMENDMENT #9 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 9)* ASTRALIS LTD. - ----------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.0001 per share - ----------------------------------------------------------------------------- (Title of Class of Securities) 046352 - ----------------------------------------------------------------------------- (CUSIP Number) - ----------------------------------------------------------------------------- DONALD NICHOLSON KATHRYN A. CAMPBELL, ESQ. SKYEPHARMA PLC SULLIVAN & CROMWELL LLP 105 PICCADILLY 1 NEW FETTER LANE LONDON W1J 7NJ, ENGLAND LONDON EC4A 1AN, ENGLAND +44 20 7491 1777 +44 20 7959 8900 - ----------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 20, 2004 - ----------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) 13d-1(g), check the following box [__] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. - -------------- * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - -------------------------------------------------------------------------------- 1. Name Of Reporting Persons/I.R.S. Identification Nos. of Above Persons (Entities Only) SkyePharma PLC/330387911 - ----------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (a) [ ] (See Instructions) (b) [ X ] - ----------------------------------------------------------------------------- 3. SEC Use Only - ----------------------------------------------------------------------------- 4. SOURCE OF FUNDS (See Instructions) WC - ----------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e) [ ] - ----------------------------------------------------------------------------- 6. Citizenship or Place of Organization England and Wales - ----------------------------------------------------------------------------- 7. Sole Voting Power 0 -------------------------------------------------- NUMBER OF 8. Shared Voting Power SHARES 25,220,000 BENEFICIALLY OWNED -------------------------------------------------- BY EACH REPORTING 9. Sole Dispositive Power PERSON WITH 25,220,000 -------------------------------------------------- 10. Shared Dispositive Power 0 - ----------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 25,220,000 - ----------------------------------------------------------------------------- 12. Check if the Aggregate Amount In Row (11) Excludes Certain Shares (See Instructions) [ X ] - ----------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 35.7% - ----------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) CO - ----------------------------------------------------------------------------- SkyePharma PLC, a company incorporated under the laws of England and Wales ("SkyePharma"), hereby amends and supplements its Statement on Schedule 13D, as heretofore amended and supplemented with respect to the Common Stock, par value $0.0001 per share (the "Common Stock"), of Astralis Ltd., a Delaware corporation (the "Issuer"). Except as amended and supplemented hereby, SkyePharma's Statement on Schedule 13D as heretofore amended and supplemented remains in full force and effect. Item 4. Purpose of the Transaction. --------------------------- Item 4 is hereby amended to read as follows: The purpose of the transaction was an investment by SkyePharma in Astralis. SkyePharma is continuously evaluating the business and business prospects of the Issuer, and its present and future interests in, and intentions with respect to the Issuer and at any time may decide to purchase any additional shares or to dispose of any or all of the shares of Common Stock or Warrants currently owned by it. Item 5. Interest in Securities of the Issuer. ------------------------------------- Item 5 is hereby amended to read as follows: On January 20, 2004, in accordance with the terms of the Omnibus Conversion Agreement between SkyePharma and the Issuer, dated as of January 12, 2004 (the "Conversion Agreement"), SkyePharma converted its 2,000,000 shares of Series A Convertible Preferred Stock, par value $0.001 per share ("Convertible Preferred Stock"), into 25,000,000 shares of Common Stock at a conversion price of $0.80 per share. The conversion price was adjusted in accordance with the terms of the Conversion Agreement pursuant to a resolution passed by the Board of Directors of the Issuer on December 18, 2003. SkyePharma beneficially owns 25,200,000 shares of Common Stock and Warrants expiring November 13, 2006 to purchase 20,000 shares of Common Stock at $4.00 per share (the "Warrants"), or 35.7% of the 70,718,153 shares that would be outstanding if SkyePharma exercised its Warrants (based upon 70,698,153 shares of Common Stock as reported to be outstanding by the Issuer in its Form 8-K filed with the Securities and Exchange Commission on January 21, 2004). Pursuant to the Stockholders Agreement, dated as of December 10, 2001, among SkyePharma, the Issuer and the other stockholders listed therein (the "Stockholders Agreement"), as amended on January 20, 2004 as described in Item 6, each stockholder agreed to vote its Common Stock and take other action necessary to elect directors and other matters as provided therein. The other stockholders include Jose Antonio O'Daly ("Mr. O'Daly"), beneficial owner of 13,640,000 shares of Common Stock representing approximately 19.3% of the outstanding Common Stock, Mike Ajnsztajn ("Mr. Ajnsztajn"), beneficial owner of 8,680,000 shares of Common Stock representing approximately 12.3% of the outstanding Common Stock, Gaston Liebhaber ("Mr. Liebhaber"), the beneficial owner of 2,480,000 shares of Common Stock representing approximately 3.5% of the outstanding Common Stock and Gina Tedesco ("Ms. Tedesco"). Ms. Tedesco does not own any shares of Common Stock in her name, and her husband, Mr. Ajnsztajn, owns 8,680,000 shares of Common Stock as described above. SkyePharma has sole power to dispose of the Common Stock owned by it and, by virtue of the Stockholders Agreement as amended, may be deemed to have shared power to vote the Common Stock owned by it. SkyePharma disclaims beneficial ownership of the 24,800,000 shares of Common Stock owned by Mr. O'Daly, Mr. Ajnsztajn, Mr. Liebhaber and Ms. Tedesco, each of whom has shared power to vote or direct the vote and sole power to dispose or direct the disposition of such shares of Common Stock beneficially owned by him or her, if any. Mr. O'Daly, a citizen of Venezuela, is the Chairman of the Board and the President of Research and Development of Astralis. Mr. Ajnsztajn, a citizen of Brazil and the United States of America, is the President and a Director of Astralis. Mr. Liebhaber, a citizen of Brazil, is the Senior Vice-President and a Director of Astralis. Ms. Tedesco, a citizen of the United States, is the Chief Financial Officer and a Director of Astralis. The business address for Messrs. O'Daly, Ajnsztajn and Liebhaber and Ms. Tedesco is c/o Astralis Ltd., 75 Passaic Avenue, Fairfield, NJ 07004, U.S.A. To the knowledge of SkyePharma, none of Mr. O'Daly, Mr. Ajnsztajn, Mr. Liebhaber or Ms. Tedesco during the last five years, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. No person other than SkyePharma has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, its Common Stock or Warrants. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. ------------------------------------------------------------- Item 6 is supplemented to include the following: Pursuant to the terms of the Conversion Agreement, SkyePharma has entered into a Call Option Agreement with the Issuer, dated as of January 20, 2004 (the "Call Option Agreement"). Under the terms of the Call Option Agreement, upon the Issuer's completion of the dosing period and follow-up period for the treatment of no fewer than 80 persons in Phase II clinical trials for the Issuer's Psoraxine formula for the treatment of psoriasis (or, if later, July 21, 2004), the Issuer would obtain the right to repurchase some or all of 12,500,000 shares of Common Stock from SkyePharma in increments of 2,500,000 shares at a price of $0.80 per share plus an amount equal to 30% per annum from the date of the Call Option Agreement accruing at a non-compounding rate on a quarterly basis, for a period of three years ending on January 20, 2007. If the call option is exercised prior to the second anniversary of the Call Option Agreement, the price per share would be equal to the price which would be payable on the second anniversary of the Call Option Agreement (i.e., $1.28 per share). Pursuant to the terms of the Conversion Agreement, SkyePharma, the Issuer and other stockholders listed above entered into an amendment to the Stockholders Agreement, which amends the Stockholders Agreement to expire on the later of (i) three years after the date of such transaction or (ii) the date on which SkyePharma no longer beneficially owns 20% of the outstanding Common Stock. The amended Stockholders Agreement requires the parties to it to agree to vote all shares held by such parties, for a period of three years, for one director designated by Mr. O'Daly, one director designated by Mr. Ajnsztajn, one director designated by Mr. Liebhaber and one director designated by Gina Tedesco, and, for the duration of the Stockholders Agreement, for one director designated by SkyePharma and two independent directors. In addition, additional parties may be added to the Stockholders Agreement. Further, SkyePharma is required for a period of three years to vote its shares of Common Stock in favor of certain enumerated transactions, where those transactions have been approved by the Board and all of the independent directors. Item 7. Material to be filed as Exhibits. --------------------------------- Exhibit 1 Omnibus Conversion Agreement, between the Issuer and SkyePharma, dated as of January 12, 2004, incorporated by reference to Exhibit 1 to Amendment No. 8 to the Schedule 13D filed by SkyePharma with the Commission on January 15, 2004. Exhibit 2 Call Option Agreement, between the Issuer and SkyePharma, dated as of January 20, 2004. Exhibit 3 Stockholders Agreement, dated as of December 10, 2001, among the Issuer, SkyePharma and the parties listed in Annex A thereto, incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K of the Issuer, filed by the Issuer on December 14, 2001 (File Number 000-30997). Exhibit 4 Amendment No. 1 to Stockholders Agreement, between the Issuer, SkyePharma and the other parties listed in Annex A thereto, dated as of January 20, 2004. SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: January 22, 2004 SKYEPHARMA PLC By: /s/ DONALD NICHOLSON ----------------------------- Donald Nicholson Chief Financial Officer EX-99.2 3 sc0010a.txt EXHIBIT 2 -- CALL OPTION AGREEMENT EXHIBIT 2 CALL OPTION AGREEMENT This is a Call Option Agreement (this "Agreement") dated January 20, 2004 by and between Astralis Ltd., a Delaware corporation (the "Corporation") and SkyePharma PLC, a company incorporated under the laws of England and Wales ("SkyePharma"). RECITALS 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 WHEREAS, the Corporation and SkyePharma have entered into an Omnibus Conversion Agreement, dated as of January 12, 2004 ("Omnibus Conversion Agreement"), pursuant to which SkyePharma agreed to convert the Convertible Preferred Stock on the date hereof upon the closing of a qualifying private placement of the Corporation's securities resulting in gross proceeds of not less than $4 million, subject to the conditions set forth therein, including the execution of this Agreement. NOW THEREFORE, in consideration of the mutual promises and covenants set forth in this Agreement and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows: DEFINITIONS As used herein, the terms below shall have the following meanings: "Accounting Firm" shall have the meaning provided in Section 2 of this Agreement. "Additional Shares" shall mean the 12,500,000 shares of Common Stock representing the difference between the number of shares of Common Stock that SkyePharma would receive if it converted its Convertible Preferred Stock at $1.60 per share and the number of shares of Common Stock that SkyePharma will receive on the date hereof as a result of the conversion of its Convertible Preferred Stock at the conversion price provided in the Omnibus Conversion Agreement, subject to adjustment for stock dividends, subdivisions, reclassifications, recapitalizations, splits, combinations or exchanges of shares which affect all shares of Common Stock. "Affiliate" shall mean, with respect to any person, any other person who, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such person. For purposes of this definition, "control" when used with respect to any person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by appointment of directors, by contract or otherwise. "Closing Date" shall mean the date hereof. "Common Stock" shall mean the Corporation's common stock, par value $0.0001 per share. "Convertible Preferred Stock" shall have the meaning provided in the recitals to this Agreement. "Corporation" shall have the meaning provided in the preamble to this Agreement. "Corporation's Call" shall have the meaning provided in Section 1 of this Agreement. "Dosing Period" shall mean the period during which a person receives injections of the Corporation's Psoraxine formula for the treatment of psoriasis. "Escrow Agent" shall mean American Stock Transfer & Trust Company. "Escrow Agreement" shall mean the Escrow Agreement of even date herewith by and among the Corporation, SkyePharma and the Escrow Agent. "Follow-Up Period" shall mean the period following the Dosing Period during which a person receiving injections of the Corporation's Psoraxine formula is evaluated for the prevalence of psoriasis. "Milestone Event" shall mean the completion of the Dosing Period and Follow-Up Period for the treatment of no fewer than 80 persons in Phase II clinical trials for the Corporation's Psoraxine formula for the treatment of psoriasis (but in no event earlier than July 21, 2004) without regard to results or any qualitative measurements with respect thereto. "Omnibus Conversion Agreement" shall have the meaning provide in the recitals to this Agreement. "Proportional Adjustment" shall mean a proportionate adjustment made in good faith to the price per share used in calculating the Purchase Price and the number of shares of Common Stock or other securities constituting the Purchase Multiple upon the occurrence of a stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares which affects all shares of Common Stock, as described below. The price payable per share after such change shall be adjusted so that the price that shall be payable for the aggregate of the securities or shares (or share or fractional share) that are received or held in respect of one Additional Share upon the effectiveness of such change shall equal the price of one Additional Share prior to such change. The number of shares constituting the Purchase Multiple shall be proportionately increased or decreased by multiplying (a) the Purchase Multiple immediately prior to the effectiveness of such change by (b) the number of the securities or shares (or share or fractional share) that are received or held in respect of one Additional Share upon the effectiveness of such change. "Purchase Agreement" shall have the meaning provided in the recitals to this Agreement. "Purchase Multiple" shall have the meaning provided in Section 1 of this Agreement. "Purchase Price" shall have the meaning provided in Section 1 of this Agreement. "SkyePharma" shall have the meaning provided in the preamble to this Agreement. Section 1. Call Option. ----------- Upon achievement of the Milestone Event, if such Milestone Event is achieved prior to the third anniversary of the Closing Date, then until and including such third anniversary of the Closing Date, the Corporation may, but is not obligated to, exercise a right to purchase any or all of the Additional Shares for the Purchase Price (as hereinafter defined) for cash, payable immediately and as a condition precedent to the Corporation's exercise of such right ("Corporation's Call"), subject to the other terms and conditions set forth herein. The Corporation's Call shall be exercisable only in multiples of 2,500,000 Additional Shares (the "Purchase Multiple"). The minimum purchase shall be 1 Purchase Multiple. The "Purchase Price" for purposes of the Corporation's Call shall be as follows: a. In the event the Corporation's Call is exercised within two years of the Closing Date, the Purchase Price shall be the higher of (i) $0.80 per share plus an amount equal to 30% of $0.80 per share per annum from the Closing Date accruing on a non-compounding rate on a quarterly basis or (ii) an aggregate of $16,000,000 (or, if less than all of the Additional Shares are purchased, the amount that would be payable for such Additional Shares on the second anniversary of the Closing Date), subject to the Proportional Adjustment provided in Section 2(c) below. b. In the event the Corporation's Call is exercised within three years of the Closing Date, but after the second anniversary of the Closing Date, the Purchase Price shall be $0.80 per share plus an amount equal to 30% of $0.80 per share per annum from the Closing Date accruing on a non-compounding rate on a quarterly basis (such Purchase Price not to exceed an aggregate of $19,000,000, subject to the Proportional Adjustment provided in Section 2(c) below). By way of example, if at any time prior to or on the second anniversary of the Closing Date, 5,000,000 Additional Shares are purchased, the Purchase Price shall be $6,400,000. If at the thirty month anniversary of the Closing Date, 5,000,000 Additional Shares are purchased, the Purchase Price shall be $7,000,000. Section 2. Exercise of Corporation's Call. ------------------------------ a. In the event the Corporation wishes to exercise the Corporation's Call, it shall provide written notice of exercise to SkyePharma as provided in Section 3 hereof, shall provide written notice of exercise to the Escrow Agent as provided in the Escrow Agreement and shall pay the purchase price in accordance with Section 2(b). b. Upon exercise of the Corporation's Call and delivery by the Escrow Agent to SkyePharma of payment in full for the Additional Shares purchased, SkyePharma shall no longer be deemed to be the owner of such Additional Shares. Such purchase price shall be paid on the date of exercise by wire transfer of immediately available funds in accordance with wire instructions to be provided by SkyePharma. c. If, after the date of this Agreement, the Additional Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares which affects all shares of Common Stock, the Purchase Price and the Purchase Multiple shall be adjusted by a Proportional Adjustment. Upon any Proportional Adjustment, the Corporation shall give written notice at least twenty (20) days prior to any Proportional Adjustment, with an explanation of the nature of the Proportional Adjustment, its effect on the Purchase Price and the Purchase Multiple, and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. The adjustments to the Purchase Multiple or the Purchase Price pursuant to the Proportional Adjustment shall not be effective until SkyePharma and the Corporation shall deliver written instructions to the Escrow Agent. d. In the event of a Proportional Adjustment in which the parties are unable to agree on the Purchase Price, the Purchase Multiple or the Additional Shares, such dispute shall be resolved by a mutually acceptable internationally recognized accounting firm (the "Accounting Firm") which must be agreed upon within ten (10) business days of the delivery of notice by the Corporation to SkyePharma. If no Accounting Firm is agreed upon during such period, the Proportional Adjustment shall become effective in accordance with the terms set forth in such notice. The parties will instruct the Accounting Firm to reach its conclusion regarding any such dispute within twenty (20) days after its appointment. The report of the Accounting Firm shall be final, conclusive and binding on the parties. The fees and expenses of such Accounting Firm shall be borne equally by each of the Corporation and SkyePharma. Section 3. Notices. ------- All notices, requests, demands and other communications which are required or may be given under this 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. 75 Passaic Avenue Fairfield, NJ 07004 Attention: Mr. Mike Ajnsztajn Telecopier: +1-973-227-7169 With a copy to: McCarter & English, LLP 4 Gateway Center 100 Mulberry Street Newark, NJ 07102 Attn: Jeffrey A. Baumel, Esq. Telecopier: +1-973-624-7070 If to SkyePharma addressed to: SkyePharma PLC 105 Piccadilly London, England W1J 7NJ Attention: Company Secretary Telecopier: +44-20-7491-3338 With a copy to: Sullivan & Cromwell LLP 1 New Fetter Lane London, England EC4A 1AN Attention: Kathryn A. Campbell, Esq. Telecopier: +44-20-7959-8950 Changes in notice addresses may be made by a notice delivered to the Corporation pursuant to this Section 3. Section 4. Entire Agreement. ---------------- This Agreement constitutes 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. Section 5. Amendments; Waivers. ------------------- No term, covenant, agreement or condition of this Agreement 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. Section 6. Severability. ------------ In the event that any one or more of the provisions contained in this Agreement 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 Agreement. Section 7. Governing Law; Successors and Assigns. ------------------------------------- This Agreement 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 Agreement, 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 this Agreement or the transactions contained in or contemplated by this Agreement (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 3 of the Agreement. This Agreement shall bind and inure to the benefit of the Corporation and SkyePharma and the respective successors, permitted assigns, heirs and legal representatives (as the case may be) of the Corporation and SkyePharma. The rights granted pursuant to this Agreement may not be assigned or otherwise conveyed by either party (by operation of law or otherwise) or by any subsequent assign of any of such rights without the written consent of the other, which consent shall not unreasonably be withheld; provided, however, that no such written consent shall be required if the transfer is to any Affiliate or partner of SkyePharma and such Affiliate or partner agrees to be bound by the terms of this Agreement. Section 8. Counterparts. ------------ This Agreement 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. Section 9. Further Assurances. ------------------ 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. Section 10. Cumulative Remedies. ------------------- 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. ASTRALIS LTD. By: /s/ MIKE AJNSZTAJN -------------------------------- Name: Mike Ajnsztajn Title: Chief Executive Officer SKYEPHARMA PLC By: /s/ DONALD NICHOLSON -------------------------------- Name: Donald Nicholson Title: Finance Officer EX-99.4 4 sc0010b.txt EXHIBIT 4--AMEND. NO. 1 TO STOCKHOLDERS AGMT EXHIBIT 4 ================================================================================ 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 ================================================================================ 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. ------- The parties acknowledge that all provisions of the Agreement, except as amended hereby, shall remain in full force and effect. 2. Definitions. ----------- 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. ---------------------------- Section 2.1 of the Agreement is hereby deleted and replaced in its entirety as follows: 2.1 Board of Directors. ------------------ (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 Michael Ashton. (c) From and after the date of this Amendment until the third anniversary of the date of this Amendment, Jose Antonio O'Daly, Mike Ajnsztajn, Gaston Liebhaber and Gina Tedesco (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 Jose Antonio O'Daly, Mike Ajnsztajn, Gaston Liebhaber and Gina Tedesco. 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 Jose Antonio O'Daly and Mike 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 Gina Tedesco, 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 Gaston Liebhaber, 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 2 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. ---------------------------- Section 2.2 of the Agreement is hereby deleted in its entirety and replaced as follows: 2.2 Stockholder Votes. ----------------- (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. 3 (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. 4 (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. ------------------- 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 ---------------------------- (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. 5 (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. ---------------------------- Section 4.3 of the Agreement is hereby deleted and replaced in its entirety as follows: 4.3 Notices. ------- 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. 75 Passaic Avenue Fairfield, NJ 07004 Attention: Mr. Mike Ajnsztajn Telecopier: +1-973-227-7169 6 With a copy to: McCarter & English, LLP 4 Gateway Center 100 Mulberry Street Newark, NJ 07102 Attn: Jeffrey A. Baumel, Esq. Telecopier: +1-973-624-7070 If to SkyePharma addressed to: SkyePharma PLC 105 Piccadilly London, England W1J 7NJ Attention: Company Secretary Telecopier: +44-20-7491-3338 With a copy to: Sullivan & Cromwell LLP 1 New Fetter Lane London, England EC4A 1AN Attention: Kathryn A. Campbell, Esq. Telecopier: +44-20-7959-8950 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. ------------------------------- Section 4.5(a) of the Agreement is hereby deleted and replaced in its entirety as follows: 4.5 Agreement; Amendments and Waivers; Addendums. -------------------------------------------- (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 7 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. ---------------------------- Section 4.6 of the Agreement is hereby deleted and replaced in its entirety as follows: 4.6 Successors and Assigns. ---------------------- 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. ----------- 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. ------------------- 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. ------------ 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. 8 13. Incorporation by Reference. -------------------------- 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. ------------------------------------- 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. ------------ 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. ------------------ 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. ------------------- 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. 9 IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above. Astralis Ltd. By: /s/ MIKE AJNSZTAJN ------------------------------------- Name: Mike Ajnsztajn Title: Chief Executive Officer SkyePharma PLC By: /s/ DONALD NICHOLSON -------------------------------------- Name: Donald Nicholson Title: Finance Director /s/ JOSE ANTONIO O'DALY ----------------------------------------- Jose Antonio O'Daly /s/ MIKE AJNSZTAJN ----------------------------------------- Mike Ajnsztajn /s/ GASTON LIEBHABER ----------------------------------------- Gaston Liebhaber /s/ GINA TEDESCO ----------------------------------------- Gina Tedesco -----END PRIVACY-ENHANCED MESSAGE-----