-----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, GQ+FFqvbBvbypsYvVIzY9BfyMY5u7nKSenJw006DooA6FjB+dNDnamlU0U54mPcI XmuwDPuB13B/2aD+yRZVCA== 0000891836-04-000438.txt : 20041213 0000891836-04-000438.hdr.sgml : 20041213 20041213150140 ACCESSION NUMBER: 0000891836-04-000438 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20041213 DATE AS OF CHANGE: 20041213 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: 041198565 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 sc0206.txt AMENDMENT NO. 11 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 11)* 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) December 9, 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, OO - ----------------------------------------------------------------------------- 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) 34.5% - ----------------------------------------------------------------------------- 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, 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 2. Identity and Background. ------------------------ Annex A as previously filed by SkyePharma is hereby amended and restated in Annex A hereto. Item 3. Source and Amount of Funds or Other Consideration. -------------------------------------------------- Item 3 is supplemented to include the following: The consideration to be used in making the purchases and transfers contemplated by the Term Sheet (as defined below) is the number of newly issued SkyePharma ordinary shares described in Item 6 below. Item 4. Purpose of the Transaction. --------------------------- Item 4 is hereby amended to read as follows: The purpose of the proposed transactions is to acquire 11,160,000 additional shares of common stock of the Issuer increasing SkyePharma's equity ownership from 34.5% to 49.7%, and to acquire rights under the Stockholders Agreement, as described in Item 6 below, to nominate two directors of the Issuer in addition to SkyePharma's current right under the Stockholders Agreement to nominate one director. Upon completion of the assignment of the right to appoint two additional directors, SkyePharma intends to nominate two directors to fill the vacancies on the Board resulting from the resignation of Mike Ajnsztajn in July 2004 and Gaston Liebhaber in September 2004. The purpose of the transactions described above is to acquire a significant equity position in the Issuer and additional board representation so as to influence the future strategic direction of the Issuer. In addition, SkyePharma may consider taking further action to increase its influence over the Issuer including possibly making purchases from time to time in the open market or privately negotiated transactions of shares of common stock of the Issuer, seeking amendments to agreements in place between SkyePharma and the Issuer and/or other shareholders, exercising its rights pursuant to its agreements with the Issuer and/or other shareholders, or seeking to influence the selection of candidates for election to the Board or appointment of officers, any of which could involve SkyePharma obtaining further influence or control over the Issuer, although it has not formulated any specific plan or proposal in this regard. There can be no assurance that definitive agreements with respect to the proposed transactions will be entered into or that the proposed assignment of rights or the acquisition of shares will be consummated or as to their terms or their timing. Except as set forth in this statement, as of the date of the filing of this statement, neither SkyePharma, nor, to the best of its knowledge and belief any of its executive officers or directors, has any other plan or proposal which relates to or would result in any of the actions specified in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. ------------------------------------------------------------- Item 6 is supplemented to include the following: On December 9, 2004, SkyePharma, Mike Ajnsztajn ("Mr. Ajnsztajn") and Gaston Liebhaber ("Mr. Liebhaber") executed a Summary of Terms and Conditions (the "Term Sheet") setting forth terms for a proposed purchase by SkyePharma of shares of the Issuer held by such persons. The Term Sheet is not legally binding on any party except for certain provisions relating to exclusivity, expenses, governing law and consent to jurisdiction. Mr. Ajnsztajn is the former Chief Executive Officer and former member of the Board of Directors of the Issuer. Mr. Liebhaber is a former member of the Board of Directors of the Issuer. The Term Sheet sets out the main terms on which the parties intend to enter into good faith negotiations to conclude a definitive stock purchase agreement (the "Stock Purchase Agreement") and assignment agreement (the "Assignment Agreement"). The Term Sheet provides that if an Assignment Agreement and a Stock Purchase Agreement are not entered into by December 21, 2004 the non-binding portions of the Term Sheet shall cease to be the basis for good faith negotiations relating to the subject matter thereof, unless the parties agree otherwise. The Term Sheet states that under the proposed Stock Purchase Agreement, SkyePharma will purchase in a private transaction 8,680,000 shares of common stock of the Issuer owned by Mr. Ajnsztajn and 2,480,000 shares of common stock of the Issuer owned by Mr. Liebhaber in exchange for SkyePharma ordinary shares. The Term Sheet provides that the number of SkyePharma ordinary shares to be issued to each of the sellers as consideration for his Issuer common stock will be the number of shares of Issuer common stock currently owned by such seller multiplied by an exchange ratio calculated by taking the average of the daily closing price of common stock of the Issuer, as quoted on the OTC Bulletin Board and reported on the Yahoo.com internet site, for the 10 business days up to and including December 3, 2004 divided by the average of the daily closing price of SkyePharma plc ADR's, as quoted on the Nasdaq and reported on the Yahoo.com internet site, for the 10 business days up to and including December 3, 2004, multiplied by ten. Such share purchase would be subsequent to and conditional upon the valid appointment of the additional SkyePharma Directors pursuant to the Assignment Agreement, which condition may be waived at SkyePharma's sole discretion. The sellers have further agreed to a period of exclusivity. If a Stock Purchase Agreement is executed by the parties and a purchase is consummated pursuant thereto, SkyePharma will own 36,360,000 shares of Issuer common stock and warrants expiring November 13, 2006 to purchase 20,000 shares of Issuer common stock at $4.00 per share, or 49.7% of the common stock of the Issuer outstanding as of November 15, 2004, as reported in the Issuer's 10-QSB for the period ending September 30, 2004. The Term Sheet also provides that prior to the completion of the transfer of ownership of the Issuer common stock held by Mr. Ajnsztajn and Mr. Liebhaber pursuant to the Stock Purchase Agreement, and concurrently with the execution of the Stock Purchase Agreement, each of Mr. Ajnsztajn and Mr. Liebhaber will agree in a proposed Assignment Agreement to transfer his rights under the Stockholders Agreement, dated December 10, 2001, as amended on January 20, 2004, between the Issuer, Mr. Ajnsztajn, Mr. Liebhaber, SkyePharma and the other parties thereto (the "Stockholders Agreement"), including his rights under Section 2.1 and 2.2 of the Stockholders Agreement to nominate and designate Directors, to SkyePharma. Each of Mr. Ajnsztajn and Mr. Liebhaber has the right, among other things, to appoint one director to the Board of Directors of the Issuer under the Stockholders Agreement in order to fill the vacancy which resulted from the resignation of such person from the Board. The proposed Assignment Agreement will provide that upon the appointment pursuant to such rights of two Directors nominated by SkyePharma to the Board of Directors of the Issuer, SkyePharma shall be obligated to issue the number of SkyePharma ordinary shares to Mr. Ajnsztajn and Mr. Liebhaber equal to ten percent of the share consideration to which each of Mr. Ajnsztajn and Mr. Liebhaber would be entitled upon closing of the Stock Purchase Agreement. Item 7. Material to be filed as Exhibits. --------------------------------- - -------------------------------------------------------------------------------- Exhibit 1 Summary of Terms and Conditions between SkyePharma plc, Mike Ajnsztajn and Gaston Liebhaber, dated as of December 9, 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: December 13, 2004 SKYEPHARMA PLC By: /s/ Donald Nicholson ----------------------------- Donald Nicholson Finance Director ANNEX A The name, position, present principal occupation and address thereof and citizenship of each director and executive officer of SkyePharma is set forth below. The business address for SkyePharma and each of the executive officers and directors listed below is SkyePharma PLC, 105 Piccadilly, London, England W1J 7NJ.
Name Position Present Principal Occupation or Citizenship Employment and Address(1) Ian Gowrie-Smith Non-Executive Australian Chairman Michael Ashton Chief Executive Australian Officer Donald Nicholson Finance Director British and Executive Director Air Chief Senior Retired British Marshal Sir Independent Michael Beavis Non-executive Director Dr. David Non-executive Non-executive Chairman of British Ebsworth Director Wilex AG and a Non- executive Director of Intercell AG, Betapharm GmbH and CuraGen Corporation R. Stephen Non-executive Non-executive Chairman British Harris Director of Proteome Sciences plc, Sinclair Pharma plc and Conve Ltd and Non-executive Director of Advanced Medical Solutions Group plc, Prophilian plc and GeneMedix plc Dr. Keith Non-executive Non-executive Director of British Mansford Director Sepracor Inc., Chairman of Mansford Associates, Chairman of Protemix Inc., and Professor of Metabolic Biochemistry at the University of Buckingham. - -------- (1) If Principal Employment is not with SkyePharma. Dr. Argeris Non-executive Partner at Care Capital United States (Jerry) Director LLC, an External Director Karabelas of Fox Chase Cancer Center and the International Partnership for Microbicides, Director of NitroMed Inc., Halsey Pharmaceuticals, Inotek, Anadys, Renovo, Member of the Scientific Advisory Board of Epigenesis, Chairman of Human Genome Science Torao Yamamoto Non-executive Senior Managing Director of the Japanese Director Pharmaceutical Division of Kowa Company Limited in Japan, Member of the Board of Directors of Kowa Company Limited, Kowa Pharmaceutical Europe, Ltd., and Kowa Research Europe, Ltd. Alan Bray Non-executive Retired British Director
EX-99.1 2 ex-1.txt SUMMARY OF TERMS AND CONDITIONS CONFORMED COPY SUMMARY OF TERMS AND CONDITIONS ------------------------------- December 9, 2004 This Term Sheet summarizes the terms and conditions of a proposed purchase by SkyePharma plc of shares of Astralis Ltd. ("Astralis") and certain rights held by Mike Ajnsztajn and Gaston Liebhaber. The Term Sheet is for discussion purposes only and, except as specified below, is not legally binding upon any party. Specific provisions that are legally binding upon the parties are explicitly stated within this Term Sheet. This Term Sheet sets out the main terms on which the parties intend to enter into good faith negotiations to conclude a definitive assignment agreement (the "Assignment Agreement") and a definitive stock purchase agreement (the "Stock Purchase Agreement"). Neither party is obligated to consummate the transactions contemplated by this Term Sheet unless and until a definitive Assignment Agreement and a definitive Stock Purchase Agreement have been mutually agreed and executed by the parties hereto. If an Assignment Agreement and a Stock Purchase Agreement are not entered into by December 21, 2004 the non-binding portions of this Term Sheet shall cease to be the basis for good faith negotiations relating to the subject matter hereof, unless the parties agree otherwise. Buyer: SkyePharma plc ( "Buyer") Sellers: Mike Ajnsztajn and Gaston Liebhaber (collectively referred to as "Sellers" or individually as a "Seller") As of the date of signature of this Term Sheet, Mike Ajnsztajn owns 8,680,000 of common stock and Gaston Liebhaber owns 2,480,000 common stock of Astralis (with respect to each Seller, the "Astralis Stock"). Each Seller hereby confirms that he owns no other common stock, warrants, notes, convertibles or any type of equity or debt instrument in Astralis or any of its affiliates. Assignment Prior to the completion of the transfer of Agreement: ownership of the Astralis Stock pursuant to the Stock Purchase Agreement and concurrently with the execution of the Stock Purchase Agreement, each Seller will agree in the Assignment Agreement to transfer immediately after execution of the Assignment Agreement his rights (the "Rights") under the Stockholders Agreement, dated December 10, 2001, as amended on January 20, 2004, between Astralis, Sellers, Buyers and the other parties thereto (the "Stockholders Agreement"), including his rights under Section 2.1 and 2.2 to nominate and designate directors, to Buyer. Upon the appointment pursuant to the Rights of two directors nominated by Buyer to the Board of Directors of Astralis (the "Additional Skye Directors") including the completion of all necessary corporate action to effectuate the appointment of the Additional Skye Directors, Buyer shall be obligated to issue to each Seller the number of SkyePharma ordinary shares ("Shares") equal to 10% of the Share Consideration (as defined below) to which such Seller will be entitled upon SUMMARY OF TERMS AND CONDITIONS ------------------------------- closing of the Stock Purchase Agreement. If (i) appointment of the Additional Skye Directors does not become effective and (ii) Buyer does not purchase the Astralis Stock pursuant to the Stock Purchase Agreement, then the Rights will revert to the respective Sellers. Purchase and Sale: Buyer intends to purchase and each Seller intends to sell all of its Astralis Stock in a private transaction subject to the terms of the Stock Purchase Agreement. The consideration for such purchase will be in the form of Shares. Purchase Price: The number of Shares to be issued as consideration for the Astralis Stock will be the number of shares of Astralis Stock owned by Seller as specified above multiplied by an exchange ratio determined in accordance with the methodology described below (with respect to each Seller, the "Share Consideration"). The exchange ratio will be calculated by taking the average of the daily closing price of Astralis common stock, as quoted on the OTC Bulletin Board and reported on the Yahoo.com internet site, for the 10 business days up to and including December 3, 2004 divided by the average of the daily closing price of SkyePharma plc ADR's, as quoted on the Nasdaq and reported on the Yahoo.com internet site, for the 10 business days up to and including December 3, 2004, multiplied by ten. Stock Purchase Concurrently with the execution of the Assignment Agreement: Agreement, the parties will enter into a Stock Purchase Agreement whereby each Seller will agree to sell his shares of Astralis Stock to Buyer and Buyer will agree to purchase such shares in exchange for the Share Consideration, subsequent to and conditional upon the valid appointment of the Additional Skye Directors to the Astralis Board pursuant to the Assignment Agreement, which may be waived at Buyer's sole discretion. Delivery of the The Assignment Consideration will be allotted and Shares: issued to the Sellers within 5 calendar days of the valid appointment of the Additional Skye Directors and the Share Consideration will be allotted and issued to the Sellers within 5 calendar days of the closing date of the Stock Purchase Agreement (the "Closing Date"). Lock-Up: Sellers will agree to a lock-up period for the Shares received pursuant to the Assignment Agreement and the Stock Purchase Agreement for the following duration: [REDACTED] Restrictions The Shares will not be registered under the U.S. on Transfer: Securities Act of 1933 (the "Securities Act") and will be issued to Sellers in a private 2 SUMMARY OF TERMS AND CONDITIONS ------------------------------- transaction that is exempt from the registration requirements of the Securities Act. Accordingly, the Shares will be "restricted securities" and, after the expiration of the lock-up period and subject to the other restrictions contained under the heading Lock-Up above, the Sellers shall not, prior to two years after the issue of the Shares, be able to offer, sell or deliver any Shares unless: o (i) the Shares 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 such Seller nor anyone acting on his behalf knows that the transaction has been prearranged with a buyer in the United States; or o (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, Seller has furnished to Buyer an opinion of counsel satisfactory to Buyer to such effect (unless delivery of such opinion is waived by Buyer). The Shares shall be legended and Sellers shall make such other agreements as are customary in a private placement transaction. Representations and Each party will give representations and warranties Warranties: with respect to due organization and power and due authorization, execution and delivery of the Assignment Agreement and the Stock Purchase Agreement. Buyer will give representations and warranties with respect to valid issuance of the Shares. Each Seller will give representations and warranties with respect to share ownership, transfer of good and marketable title of the Astralis Stock and no conflicts with agreements, laws or governing documents of Astralis and will give other customary representations and warranties for a private placement transaction. Exclusivity: Each Seller agrees with Buyer that from the date of this Term Sheet until [REDACTED], it will not accept, solicit, entertain or consider any offer relating to the Astralis Stock or effect any transactions in any other common stock or any other securities of Astralis (whether debt or equity) or negotiate or enter into any discussions or arrangements or provide any confidential information relating to the same. Expenses: Each party shall be responsible for the payment of all expenses which it incurs in connection with this transaction. 3 SUMMARY OF TERMS AND CONDITIONS ------------------------------- Governing Law and The Term Sheet shall be governed by the law of the Consent State of New York. Each of Buyer and each Seller to Jurisdiction: agree to be subject to the non-exclusive jurisdiction of the State of New York. Binding Provisions: Each of Buyer and each Seller agree that the provisions within this Term Sheet with the following titles are legally binding: Exclusivity, Expenses and Governing Law and Consent to Jurisdiction. Such obligations are intended to be legally binding, and each party hereto agrees that the other parties are relying upon such agreements as an inducement to enter into this Term Sheet. Date: December 9, 2004 Mike Ajnsztajn /s/ Mike Ajnsztajn ...................................... /s/ Gaston Liebhaber ...................................... SkyePharma plc By: /s/ Donald Nicholson ............................................ Name: Donald Nicholson Title: Finance Director 4 -----END PRIVACY-ENHANCED MESSAGE-----