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.
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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.
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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.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Mr. Xxxx Ajnsztajn
Telecopier: x0-000-000-0000
With a copy to:
XxXxxxxx & English, LLP
4 Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telecopier: x0-000-000-0000
If to SkyePharma addressed to:
SkyePharma PLC
000 Xxxxxxxxxx
Xxxxxx, Xxxxxxx X0X 0XX
Attention: Company Secretary
Telecopier: x00-00-0000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx XXX
0 Xxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopier: x00-00-0000-0000
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/ XXXX AJNSZTAJN
--------------------------------
Name: Xxxx Ajnsztajn
Title: Chief Executive Officer
SKYEPHARMA PLC
By: /s/ XXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Finance Officer
