EXHIBIT 1
OMNIBUS CONVERSION AGREEMENT
This is an Omnibus Conversion Agreement (this "Agreement") dated
January 12, 2004 by and among 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 desire to enter into an
Agreement regarding the conversion of the Convertible Preferred Stock owned by
SkyePharma.
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.
"Additional Shares" shall have the meaning provided in Section 3 of
this Agreement.
"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.
"Amended Stockholders Agreement" shall mean an Amendment No. 1 to the
Stockholders Agreement, dated December 10, 2001, by and among the Corporation,
SkyePharma and the other signatories thereto, in the form attached hereto as
Exhibit C, to be entered into as a condition to the Conversion Closing pursuant
to Sections 8 and 9 of this Agreement.
"Call Option" shall have the meaning provided in Section 3 of this
Agreement.
"Call Option Agreement" shall have the meaning provided in Section 3
of this Agreement.
"Certificate of Designations" shall mean the Certificate of
Designations, Preferences and Rights of Series A Convertible Preferred Stock of
Astralis Ltd.
"Common Stock" shall mean the Corporation's common stock, par value
$0.0001 per share.
"Conversion Closing" shall have the meaning provided in Section 1 of
this Agreement.
"Conversion Closing Date" shall have the meaning provided in Section 2
of this Agreement.
"Conversion Price" shall have the meaning provided in Section 2 of
this Agreement.
"Conversion Shares" shall have the meaning provided in Section 1 of
this Agreement.
"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 Organizational Documents" shall have the meaning
provided in Section 4 of this Agreement.
"Escrow Agreement" shall have the meaning provided in Section 3 of
this Agreement.
"Filings" shall have the meaning provided in Section 4 of this
Agreement.
"Indemnified Party" shall have the meaning provided in Section 10 of
this Agreement.
"Indemnifying Party" shall have the meaning provided in Section 10 of
this Agreement.
"Losses" shall have the meaning provided in Section 10 of this
Agreement.
"Private Placement" shall mean the offer and sale of Units resulting
in gross proceeds of not less than $4 million completed prior to January 31,
2004.
"Private Placement Closing Date" shall mean the date the Corporation
closes the Private Placement.
"Purchase Agreement" shall have the meaning provided in the recitals
to this Agreement.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement dated December 10, 2001 by and between the Corporation and SkyePharma.
"SkyePharma" shall have the meaning provided in the preamble to this
Agreement.
"Third Party Claim" shall have the meaning provided in Section 10 of
this Agreement.
"Transaction Documents" shall have the meaning provided in Section 4
of this Agreement.
"Units" shall mean units consisting of one share of the Corporation's
Common Stock and Warrants to purchase one share of the Corporation's Common
Stock.
"Warrants" shall mean warrants having (i) an exercise price of $0.73
and (ii) an expiration date that is four years from the date of the Private
Placement Closing Date.
1. Conversion.
The parties hereby agree that on the Private Placement Closing Date,
SkyePharma shall convert all of its shares of Convertible Preferred Stock into
Common Stock at the Conversion Price provided for in Section 2 of this
Agreement, provided that all the conditions set forth in Sections 8 and 9 hereof
have been satisfied or have been waived in writing (the "Conversion Closing").
The Conversion Closing shall take place at the offices of XxXxxxxx & English,
LLP, 4 Gateway Center, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000.
At the Conversion Closing, the Corporation shall deliver to SkyePharma
a stock certificate representing the number of shares of Common Stock that
SkyePharma will be entitled to receive as a result of the conversion of its
Convertible Preferred Stock at the Conversion Price provided for in Section 2 of
this Agreement (the "Conversion Shares"), registered in the name of SkyePharma,
or at the direction of SkyePharma, in the name of one of its affiliates, and
dated the date of the Conversion Closing, against surrender by SkyePharma of its
certificate representing the Convertible Preferred Stock to the Corporation in
accordance with Section 3 of the Certificate of Designations.
2. Conversion Price.
Subject to the satisfaction by SkyePharma of its obligations under
this Agreement and, pursuant to Section 3.4.11 of the Certificate of
Designations, the Corporation hereby agrees to modify the Conversion Price of
the Convertible Preferred Stock provided for in the Certificate of Designations
as follows:
a. In the event the Units offered in the Private Placement are sold
at a price between $0.50 and $0.70 per Unit, the Conversion Price
(as defined in the Certificate of Designations) of the
Convertible Preferred Stock shall be $0.80 per share.
b. In the event the Units offered in the private placement are sold
at a price below $0.50 per Unit, the Conversion Price of the
Convertible Preferred Stock shall be an amount equal to $0.80
multiplied by a fraction, the numerator of which is the price for
which each Unit is sold and the denominator of which is $0.50.
c. In the event the Units offered in the private placement are sold
at a price above $0.70 per Unit, the Conversion Price of the
Convertible Preferred Stock shall be an amount equal to $0.80
multiplied by a fraction, the numerator of which is the price for
which each Unit is sold and the denominator of which is $0.70.
The modification of the Conversion Price of the Convertible Preferred
Stock pursuant to this Section 2 shall be effective on the date of the
Conversion Closing (the "Conversion Closing Date").
3. Additional Shares.
"Additional Shares" shall mean 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 as a result of the conversion of its
Convertible Preferred Stock at the Conversion Price provided for in Section 2 of
this Agreement. At the Conversion Closing, the Corporation shall receive a call
option ("Call Option") with respect to the Additional Shares as provided in a
Call Option Agreement in the form attached hereto as Exhibit A ("Call Option
Agreement") by and between the Corporation and SkyePharma, to be entered into at
the Conversion Closing. Until the earlier of (i) the exercise of the Call Option
or (ii) expiration of the Call Option, as provided for in the Call Option
Agreement, the Additional Shares shall be held in escrow pursuant to an Escrow
Agreement in the form attached hereto as Exhibit B ("Escrow Agreement") by and
between the Corporation and SkyePharma, to be entered into at the Conversion
Closing.
4. Representations and Warranties of the Corporation
The Corporation hereby represents and warrants to SkyePharma that:
(a) Organization
The Corporation is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Corporation has
all requisite corporate power and authority to own and lease its properties, to
carry on its business as presently conducted and to carry out the transactions
contemplated hereby. The Corporation is duly qualified to do business and is in
good standing in each jurisdiction in which such qualification is necessary
because of the property owned, leased or operated by it or because of the nature
of its businesses as now being conducted, except for those jurisdictions where
the failure to be so qualified would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the condition
(financial or otherwise), operations, prospects, business, assets, liabilities
or earnings of the Corporation.
The Corporation has, prior to the execution of this Agreement,
delivered to SkyePharma true and complete copies of its Certificate of
Incorporation (including the Certificate of Designations) and its By-Laws, each
as amended to date (collectively, the "Corporation's Organizational Documents").
Each of the Corporation's Organizational Documents as so delivered is in full
force and effect.
(b) Authorization
The execution, delivery and performance by the Corporation of this
Agreement, the Call Option Agreement, the Escrow Agreement and the Amended
Stockholders Agreement (such documents, collectively, the "Transaction
Documents") and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by all requisite corporate action on the part
of the Corporation and each of the Transaction Documents shall have been, duly
executed and delivered by the Corporation and are in full force and effect. The
Transaction Documents constitute the valid and binding obligations of the
Corporation, enforceable in accordance with their respective terms, subject as
to enforcement of (A) applicable bankruptcy, insolvency, moratorium or similar
laws relating to or affecting the rights and remedies of creditors and debtors
and (B) equitable principles generally, regardless of whether such principles
are considered in a proceeding at equity or at law. The execution, delivery and
performance of each of the Transaction Documents and the consummation of the
transactions contemplated hereby and thereby, and compliance with the provisions
hereof and thereof by the Corporation will not (a) violate any law or statute or
order, judgment or decree of any court, administrative agency or other
governmental body applicable to the Corporation, or its properties or assets or
(b) conflict in any respect with or result in any breach of any of the terms or
provisions or constitute (with due notice or lapse of time, or both) a default
under the Corporation's Organizational Documents.
(c) Authorization and Validity of Conversion Shares
The issuance, sale and delivery of the Conversion Shares have been
duly authorized by all requisite corporate action of the Corporation, and, when
issued, sold and delivered on the Conversion Closing Date in accordance with the
terms of the Certificate of Designations and this Agreement, will be duly and
validly issued, fully paid and nonassessable and will not create or vest any
preemptive or other similar rights, or cause any adjustment in the number of
securities issuable pursuant to, or the conversion or exercise price of, any
outstanding rights to purchase, acquire or subscribe to shares in the
Corporation or securities convertible into shares of the Corporation by any of
the beneficial holders of shares of the Corporation or any securities
convertible into, or exercisable for, shares of the Corporation, and will be
free and clear of all liens.
(d) No Consent or Approval Required
No notices, reports or other filings ("Filings") are required to be
made by the Corporation with, nor are any consents, registrations, approvals,
permits or authorizations ("Consents") required to be obtained by the
Corporation from, any governmental or regulatory authority, agency, commission,
body or other governmental entity, in connection with the execution and delivery
of this Agreement and the performance by the Corporation of its obligations
hereunder, except such Consents or Filings as have already been duly and validly
obtained or filed, or with respect to any Filings that must be made after the
Conversion Closing, as will be filed in a timely manner.
5. Representations and Warranties of SkyePharma.
SkyePharma hereby represents and warrants to the Corporation as
follows:
(a) Due Organization
SkyePharma is a company duly organized and validly existing under the
laws of England and Wales.
(b) Authorization; Execution and Delivery of Agreement
SkyePharma has all requisite power and authority to execute this
Agreement and the Transaction Documents, to perform its obligations hereunder
and thereunder and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of SkyePharma. This Agreement has been duly executed and
delivered by SkyePharma and this Agreement constitutes the legal, valid, binding
and enforceable obligation of SkyePharma, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights and
general principles of equity.
(c) No Consent or Approval Required
Other than as a result of the reporting requirements under the
Securities Exchange Act of 1934, no Filings are required to be made by
SkyePharma with, nor are any Consents required to be obtained by SkyePharma
from, any governmental or regulatory authority, agency, commission, body or
other governmental entity, in connection with the execution and delivery of this
Agreement and the performance by SkyePharma of its obligations hereunder, except
such Consents or Filings as have already been duly and validly obtained or
filed, or with respect to any Filings that must be made after the Conversion
Closing, as will be filed in a timely manner.
6. Legends.
The Conversion Shares and the Additional Shares shall bear a legend
substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW. THE SECURITIES MAY NOT BE PLEDGED,
HYPOTHICATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAW OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR
LAW."
The Additional Shares shall bear a legend substantially as follows:
"THESE SECURITIES ARE SUBJECT TO A CALL OPTION AGREEMENT
DATED JANUARY 12, 2004 BETWEEN ASTRALIS LTD. AND SKYEPHARMA
PLC AND NO TRANSFER OF SUCH SECURITIES SHALL BE VALID OR
EFFECTIVE UNLESS PERMITTED UNDER THE TERMS OF SUCH
AGREEMENT. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF ASTRALIS LTD."
7. Registration Rights.
The parties hereto agree that the Conversion Shares are Registrable
Securities under the terms of the Registration Rights Agreement. The Additional
Shares shall not
be considered Registrable Securities while subject to the Escrow Agreement. In
the event the Call Option is not exercised, upon release from escrow, the
Additional Shares shall be considered Registrable Securities under the terms of
the Registration Rights Agreement.
8. Conditions to Obligations of SkyePharma at the Conversion Closing.
The obligation of SkyePharma to consummate the Conversion Closing is
subject to the satisfaction or waiver of the following conditions on or prior to
the Conversion Closing Date:
(a) Corporate Proceedings; Consents; Etc
All corporate and/or other proceedings to be taken by the Corporation,
its officers, directors and stockholders and all waivers, Filings and Consents
to be obtained by the Corporation in connection with the transactions
contemplated by this Agreement and the Transaction Documents shall have been
taken or obtained.
(b) Transaction Documents
The Call Option Agreement, the Escrow Agreement and the Amended
Stockholders Agreement, in the forms attached hereto, shall have been executed
and delivered by the Corporation and each of the other signatories on the
signature pages thereto.
(c) Filings and Documents
The Corporation shall have delivered to SkyePharma a certificate of
the Secretary of the Corporation at the Conversion Closing certifying that
attached thereto is: (i) a true and complete copy of the Corporation's
Certificate of Incorporation, as in effect at the Closing; (ii) a true and
complete copy of its By-laws as in effect at the Conversion Closing; and (iii) a
true and complete copy of all resolutions duly adopted by its Board of Directors
(x) authorizing the execution, delivery and performance of this Agreement and
the Transaction Documents, and (y) authorizing the consummation of the
transactions contemplated hereby, including the Conversion Price reduction in
accordance with Section 3.4.11 of the Certificate of Designations premised on a
determination by the Board of Directors that such decrease would be in the best
interests of the Corporation.
(d) Representations, Warranties and Covenants
Each representation and warranty of the Corporation shall be true and
correct in all material respects as of the Conversion Closing Date; the
Corporation shall have complied in all material respects with its covenants and
agreements to be performed at or prior to the Conversion Closing Date; and the
Corporation shall have delivered to SkyePharma a certificate of the Chief
Executive Officer of the Corporation, certifying as to the foregoing matters.
(e) No Litigation
No litigation or other formal proceeding shall have been instituted or
threatened seeking to enjoin any of the transactions contemplated hereby or
seeking damages in respect thereof, and no injunction or temporary restraining
order shall have been issued with respect to any of the transactions
contemplated hereby.
(f) Private Placement
The Private Placement shall have been consummated on the terms
specified on Annex A hereto resulting in gross proceeds of not less than $4
million prior to January 31, 2004.
9. Conditions to Obligations of Corporation at the Conversion Closing.
The obligations of the Corporation to consummate the Conversion
Closing is subject to the satisfaction or waiver of the following conditions on
or prior to the Conversion Closing Date:
(a) Representations and Warranties and Covenants
Each representation and warranty of SkyePharma shall be true and
correct in all respects as of the Conversion Closing Date, as if made on and as
of each such date.
(b) Transaction Documents
The Call Option Agreement, the Escrow Agreement and the Amended
Stockholders Agreement, in the forms attached hereto, shall have been executed
and delivered by SkyePharma.
(c) No Litigation
No litigation or other formal proceeding shall have been instituted or
threatened seeking to enjoin any of the transactions contemplated hereby or
seeking damages in respect thereof, and no injunction or temporary restraining
order shall have been issued with respect to any of the transactions
contemplated hereby.
(d) Convertible Preferred Stock Certificates
SkyePharma shall have surrendered the certificates representing its
Convertible Preferred Stock for conversion.
10. Indemnification; Survival.
(a) Indemnification by the Corporation
The Corporation (the "Indemnifying Party") hereby agrees to indemnify
and hold harmless SkyePharma and its respective affiliates, directors, officers
and employees (each an "Indemnified Party") from and against any and all
liabilities, judgments, claims, settlements, losses, damages, fees (including
attorneys' and other experts' fees and disbursements), Liens, taxes, penalties,
obligations and expenses (collectively, "Losses") incurred or suffered by any
such person arising from, by reason of or in connection with the Agreement or
the Transaction Documents or any of the transactions contemplated hereby or
thereby. The Corporation will reimburse SkyePharma for any legal and other fees
and expenses (including the cost of any investigation and preparation) incurred
in connection therewith as such expenses are incurred. Notwithstanding the
foregoing, the Company shall not be required to indemnify SkyePharma against
losses, damages, liabilities or claims arising from any claims relating to the
duties of SkyePharma to its stockholders. This indemnification provision shall
be in addition to the rights of SkyePharma to bring an action against the
Corporation for breach of any term of this Agreement and the Transaction
Documents.
(b) Procedures Relating to Third Party Claims
An Indemnified Party seeking indemnification pursuant to Section 10
shall give prompt notice to the Indemnifying Party from whom such
indemnification is sought of the assertion of any claim or assessment, or the
commencement of any action, suit or proceeding, by a third party (including any
holder of securities of the Corporation) in respect of which indemnity may be
sought hereunder (a "Third Party Claim") and will give the Indemnifying Party
such information with respect thereto as the Indemnifying Party may reasonably
request, but no failure to give such notice shall relieve the Indemnifying Party
of any liability hereunder (except to the extent the Indemnifying Party has
suffered actual and material prejudice thereby). The Indemnifying Party shall
have the right, exercisable by written notice to the Indemnified Party within 14
days of receipt of notice from the Indemnified Party of commencement of or
assertion of any Third Party Claim, to assume the defense of such Third Party
Claim, using counsel selected by the Indemnifying Party and reasonably
acceptable to the Indemnified Party; provided, that the Indemnifying Party shall
not have the right to assume the defense of a Third Party Claim if the
Indemnified Party shall have determined in its reasonable discretion that a
conflict may arise in the event the Third Party Claim involves both the
Indemnified Party and the Indemnifying Party, in which case such Indemnified
Party shall have the right to control the defense of such Third Party Claim
using counsel selected by the Indemnified Party and the Indemnifying Party shall
reimburse the Indemnified Party for its reasonable legal and other fees and
expenses (including the cost of any investigation and preparation) incurred in
connection therewith promptly as such expenses are incurred. In addition, if the
Indemnifying Party fails to give the Indemnified Party the notice complying with
the provisions stated above within the stated time period, the Indemnified Party
shall have the right to assume control of the defense of the Third Party Claim.
In no event may any Indemnifying Party settle or compromise any Third Party
Claim without the prior written consent of an Indemnified Party, which consent
shall not be unreasonably withheld.
(c) Contribution
If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an Indemnified Party in respect of any
Losses, then each Indemnifying Party shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Losses in such proportion
as is appropriate to reflect the relative benefits received by the parties. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the Indemnified Party failed to give the
notice required under subsection (b) above, then each Indemnifying Party shall
contribute to such amount paid or payable by such Indemnified Party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the parties with respect to the events which resulted in
such Losses, as well as any other relevant equitable considerations.
(d) Survival of Representations, Warranties and Indemnification
Notwithstanding any investigation conducted or notice or knowledge
obtained by or on behalf of any party hereto, each representation and warranty
in this Agreement shall, to the extent relevant to a claim asserted by a party
hereto against the other party hereto, survive for a period of twelve months
following the Conversion Closing Date; provided, however, that the
representations and warranties of the Corporation shall survive in the event a
third party claim has been or is asserted against SkyePharma (whether or not
such claim is asserted within the twelve months following the Conversion Closing
Date). The indemnification provisions of this Section 10 other than with respect
to a claim for breach of a representation or warranty (which shall only survive
for twelve months following the Conversion Closing Date subject to the proviso
set forth above) shall survive until the fifth anniversary of the Conversion
Closing Date.
11. Anti-Dilution.
SkyePharma acknowledges that the Conversion Price of the Convertible
Preferred Stock at the Conversion Closing will be as set forth in Section 2
hereof, notwithstanding Section 3.4 of the Certificate of Designations and any
adjustments to the Conversion Price to which SkyePharma could otherwise be
entitled as a result of the issuance of securities of the Corporation in the
Private Placement. This does not constitute a waiver of any of SkyePharma's
rights under the Certificate of Designations to an adjustment to the Conversion
Price as a result of the issuance of securities of the Corporation in the
Private Placement under Section 3.4 or otherwise if the conditions in Section 8
hereof are not satisfied and the Conversion Closing is not effected.
12. 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.
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
13. 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.
14. Agreements; 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.
15. 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.
16. 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 12 of this Agreement.
This Agreement shall bind and inure to the benefit of the Corporation
and SkyePharma and the respective successors, 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 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.
17. 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.
18. 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.
19. 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.
20. Termination.
This Agreement may be terminated by either party if the other party is
in material breach of this Agreement and such breach is not cured within ten
days following the delivery of written notice thereof. Such termination right
may be exercised only by the delivery of written notice of such termination by
the terminating party to the other party and such termination will not relieve
any party of liability for its prior breach. This Agreement shall terminate at
the earlier of (a) March 1, 2004 or (b) by the mutual written consent of the
parties hereto, except that in each case each representation and warranty in
this Agreement and each agreement or covenant in this Agreement including the
indemnification provisions hereof shall survive such termination.
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 Director
