exv10w45






Exhibit 10.45




 

 








STOCK PURCHASE AGREEMENT




by and among



CHIESI FARMACEUTICI SPA,



CORNERSTONE BIOPHARMA HOLDINGS, LTD.,



LUTZ FAMILY LIMITED PARTNERSHIP



and



THE STOCKHOLDERS NAMED HEREIN AND



CORNERSTONE THERAPEUTICS, INC. (solely with respect to Section 4.1)



Dated as of December 16, 2010



 

 








 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	 	 	 	 
	 	 	 	 
	ARTICLE I PURCHASE AND SALE OF SHARES	 	 	1	 
	 	 	 	 	 
	 	 	 	 
	 	Section 1.1.	 	Purchase and Sale
	 	 	1	 
	 	Section 1.2.	 	Consideration
	 	 	1	 
	 	Section 1.3.	 	Closing
	 	 	1	 
	 	Section 1.4.	 	Closing Deliveries by the Sellers
	 	 	2	 
	 	Section 1.5.	 	Closing Deliveries by Purchaser
	 	 	2	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE SELLERS	 	 	2	 
	 	 	 	 	 
	 	 	 	 
	 	Section 2.1.	 	Ownership of Shares
	 	 	2	 
	 	Section 2.2.	 	Authority
	 	 	2	 
	 	Section 2.3.	 	Consents and Approvals; No Violations
	 	 	2	 
	 	Section 2.4.	 	Disclosure of Information and Investment Experience
	 	 	3	 
	 	Section 2.5.	 	No Additional Representations
	 	 	3	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER	 	 	3	 
	 	 	 	 	 
	 	 	 	 
	 	Section 3.1.	 	Organization
	 	 	4	 
	 	Section 3.2.	 	Authority
	 	 	4	 
	 	Section 3.3.	 	Consents and Approvals; No Violations
	 	 	4	 
	 	Section 3.4.	 	Financing
	 	 	4	 
	 	Section 3.5.	 	Brokers and Other Advisors
	 	 	4	 
	 	Section 3.6.	 	Investment Intent
	 	 	5	 
	 	Section 3.7.	 	Disclosure of Information and Investment Experience
	 	 	5	 
	 	Section 3.8.	 	No Additional Representations
	 	 	5	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE IV MISCELLANEOUS	 	 	5	 
	 	 	 	 	 
	 	 	 	 
	 	Section 4.1.	 	Stockholders Agreement Waiver
	 	 	5	 
	 	Section 4.2.	 	Transfer Taxes
	 	 	6	 
	 	Section 4.3.	 	Fees and Expenses
	 	 	6	 
	 	Section 4.4.	 	Notices
	 	 	6	 
	 	Section 4.5.	 	Entire Agreement
	 	 	7	 
	 	Section 4.6.	 	Waivers
	 	 	7	 
	 	Section 4.7.	 	No Third-Party Beneficiaries
	 	 	7	 
	 	Section 4.8.	 	Assignment; Binding Effect
	 	 	7	 
	 	Section 4.9.	 	GOVERNING LAW
	 	 	7	 
	 	Section 4.10.	 	CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL
	 	 	8	 
	 	Section 4.11.	 	Remedies
	 	 	8	 
	 	Section 4.12.	 	Invalid Provisions
	 	 	8	 






 









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	 	 	 	 
	 	 	 	 
	 	Section 4.13.	 	Counterparts
	 	 	9	 
	 	Section 4.14.	 	Interpretation
	 	 	9	 
	 	 	 	 	 
	 	 	 	 
	Exhibit A: Sellers’ Holdings	 	 	 	 






ii









 






INDEX OF DEFINED TERMS




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	affiliate
	 	 	10	 
	Agreement
	 	 	1	 
	business day
	 	 	10	 
	Closing
	 	 	2	 
	Closing Date
	 	 	2	 
	Common Stock
	 	 	1	 
	Company
	 	 	1	 
	Consideration
	 	 	1	 
	contract
	 	 	3	 
	control
	 	 	10	 
	Encumbrances
	 	 	2	 
	expenses
	 	 	6	 
	Governance Agreement
	 	 	1	 
	Governmental Authority
	 	 	2	 
	person
	 	 	10	 
	Purchaser
	 	 	1	 
	Shares
	 	 	1	 
	Stockholders Agreement
	 	 	1	 







iii











 





STOCK PURCHASE AGREEMENT




     This STOCK PURCHASE AGREEMENT, dated as of December 16, 2010 (this “Agreement”), is by
and among CHIESI FARMACEUTICI SPA, a corporation organized under the laws of Italy
(“Purchaser”), CORNERSTONE BIOPHARMA HOLDINGS, LTD., a limited liability company organized
under the laws of Anguilla, and LUTZ FAMILY LIMITED PARTNERSHIP, a Nevada limited partnership
(collectively, the “Sellers”) and solely with respect to Section 4.1, Cornerstone
Therapeutics Inc., a Delaware corporation (the “Company”) and CAROLINA PHARMACEUTICALS,
LTD., a limited liability company organized under the laws of Bermuda, Craig A. Collard and Steven
M. Lutz (collectively, the “Stockholders”).



RECITALS




     WHEREAS, each Seller is the record and beneficial owner of the number of shares of common
stock, par value $0.001 per share (the “Common Stock”), of the Company, set forth opposite
such Seller’s name on Exhibit A hereto (collectively, the “Shares”);



     WHEREAS, the Shares of each Seller are not “Covered Shares” as defined in that certain
Stockholders Agreement, dated as of May 6, 2009 (the “Stockholders Agreement”), by and
among the Company, the Purchaser, the Sellers and the Stockholders;



     WHEREAS, each Seller desires to sell the amount of Shares set forth opposite such Seller’s
name on Exhibit A hereto to the Purchaser, and the Purchaser desires to purchase such Shares from
the Sellers;



     WHEREAS, pursuant to Section 2.1(a) of that certain Governance Agreement, dated as of May 6,
2009 (the “Governance Agreement”), by and among the Company, the Purchaser, the Sellers and
the other stockholders named therein, the Purchaser may acquire additional Common Stock to the
extent necessary to maintain Beneficial Ownership (as defined in the Governance Agreement) at an
amount equal to 51% of Common Stock on a Fully Diluted Basis (as defined in the Governance
Agreement); and



     WHEREAS, pursuant to Section 5.4 of the Stockholders Agreement, the Company, the Purchaser,
each of the Sellers (with respect to the Shares being sold by the other Seller), and each of the
Stockholders are hereby waiving the provisions of Section 3.2(b) thereof with respect to transfer
of the Shares.



     NOW, THEREFORE, the parties hereby agree as follows:



ARTICLE I




PURCHASE AND SALE OF SHARES



     Section 1.1. Purchase and Sale. At the Closing, upon the terms and subject to the
conditions set forth in this Agreement, each Seller will sell, assign, transfer and deliver the
amount of Shares set forth opposite such Seller’s name on Exhibit A hereto to the Purchaser, and
the Purchaser will purchase and accept such Shares from the Sellers.



     Section 1.2. Consideration. The consideration (the “Consideration”) to be
paid to the Sellers for the Shares at the Closing shall be U.S. $6.02 per share in cash.



 









 





     Section 1.3. Closing. The consummation of the transactions contemplated hereby shall
take place at a closing (the “Closing”) to be held at the offices of Morgan, Lewis &
Bockius LLP, 101 Park Avenue, New York, New York 10178, or by electronic transmission on terms
agreed upon by the Purchaser and the Sellers, simultaneously with the execution and delivery of
this Agreement. The date of the Closing is referred to herein as the “Closing Date”.
The Closing shall be deemed to occur as of 12:01 a.m. Eastern Standard Time on the Closing Date.



     Section 1.4. Post Closing Deliveries by the Sellers. As soon as reasonably
practicable after the Closing, but no later than five (5) business days, each Seller shall deliver
or cause to be delivered to Purchaser a certificate or certificates representing the number of
Shares to be sold by it (as set forth on Exhibit A), in each case endorsed in blank or with
an executed blank stock power attached and with all transfer tax stamps attached or provided for
sufficient to vest good and valid title to the Shares in Purchaser.



     Section 1.5. Closing Deliveries by Purchaser. At the Closing, Purchaser shall deliver
the Consideration to the Sellers by wire transfer of immediately available funds in United States
dollars to such account or accounts as the Sellers may direct by written notice to Purchaser.



ARTICLE II




REPRESENTATIONS AND WARRANTIES OF THE SELLERS



     Each Seller represents and warrants, severally but not jointly and solely with respect to such
Seller and not with respect to the other Seller, to Purchaser as follows:



     Section 2.1. Ownership of Shares. Such Seller is the lawful record and beneficial
owner of the number of Shares set forth next to such Seller’s name on Exhibit A free and
clear of all liens, charges, security interests, mortgages, pledges, options, preemptive rights,
rights of first refusal or first offer, proxies, levies, voting trusts or agreements, or other
adverse claims or restrictions on title or transfer of any nature whatsoever (collectively,
“Encumbrances”), other than restrictions on transfer imposed under applicable securities
laws. Upon the conveyance by such Seller of such Shares and receipt of payment in the manner
contemplated by Article I, such Seller will transfer, assign, convey and deliver beneficial
and legal title to Purchaser free and clear of all Encumbrances, other than Encumbrances imposed
under applicable securities laws or resulting from acts or omissions of Purchaser. The Shares are
not “Covered Shares”, as defined in the Stockholders Agreement.



     Section 2.2. Authority. Such Seller is an entity with the requisite partnership or
limited liability company power and authority to execute and deliver this Agreement and to perform
the transactions contemplated by this Agreement. This Agreement has been duly and validly executed
and delivered by such Seller and, assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, constitutes legal, valid and binding obligations of such
Seller, enforceable against such Seller in accordance with its terms.



     Section 2.3. Consents and Approvals; No Violations.



     (a) The execution, delivery and performance by such Seller of this Agreement and the
consummation by such Seller of the transactions contemplated hereby do not and will not require any
filing or registration with, notification to, or authorization, permit, consent or approval of, or
other action by or in respect of, any U.S. or non-U.S. government, regulatory or administrative
authority, agency, instrumentality or commission or any court, tribunal, judicial or arbitral body
or other similar authority (a



2









 




“Governmental Authority”) other than (i) compliance with any applicable requirements
of the Securities Exchange Act of 1934, as amended, and (ii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or notifications, would not
reasonably be expected to prevent or materially delay the consummation of the transactions
contemplated hereby.




     (b) The execution, delivery and performance by such Seller of this Agreement and the
consummation by such Seller of the transactions contemplated hereby do not and will not (i) result
in a violation or breach of, or constitute (with or without notice or lapse of time or both) a
default under, or give rise to any right of termination, amendment, cancellation, acceleration or
loss of benefits or the creation or acceleration of any right or obligation under or result in the
creation of any Encumbrance upon any of the properties or assets of such Seller under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, loan, credit
agreement, lease, license, permit, concession, franchise, purchase order, sales order, contract,
agreement or other instrument, understanding or obligation, whether written or oral (a
“contract”), to which such Seller is a party or by which any of its properties or assets
may be bound or (ii) violate any law applicable to such Seller or any of its properties or assets,
except, in each case, for violations, breaches or defaults that would not reasonably be expected to
prevent or delay the consummation of the transactions contemplated hereby.



     Section 2.4. Disclosure of Information and Investment Experience.



     (a) Each Seller understands that the transactions contemplated by this Agreement involve
substantial risk. Such Seller (i) is a sophisticated investor with respect to the transactions
contemplated by this Agreement, (ii) has adequate information concerning the business and financial
affairs of the Company to make an informed decision regarding the sale of the Shares pursuant to
the terms and conditions of this Agreement, (iii) has independently and without reliance upon the
Purchaser, and based on such information as such Seller has deemed appropriate, made its own
analysis and decision to sell the Shares to the Purchaser and (iv) has a preexisting business
relationship with the Company of a nature and duration that enables such Seller to assess the
merits and risks of the transactions contemplated by this Agreement.



     (b) The Purchaser has not given such Seller any investment advice, credit information or
opinion on whether the sale of the Shares is prudent.



     (c) Notwithstanding anything to the contrary contained herein, such Seller acknowledges that
(i) the Purchaser currently may or may not have, and later may or may not come into possession of,
information about the Shares or the Company that is not known to such Seller and that may or may
not be material to a decision to sell the Shares; (ii) it has determined to sell the Shares to the
Purchaser notwithstanding its lack of such knowledge and (iii) the Purchaser shall not have any
liability to any Seller with respect to material information that the Purchaser possesses and/or
such Seller’s lack of such information. Each Seller hereby waives and releases any claims relating
to the transactions contemplated by this Agreement that it might have against the Purchaser, its
subsidiaries or other affiliates, and all of its and their respective officers, directors,
employees, shareholders and agents, whether under applicable securities laws or otherwise.



     Section 2.5. No Additional Representations. Except as otherwise expressly set forth
in this Article II, such Seller does not make any representation or warranty of any kind,
express or implied, in connection with the transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, except as expressly set forth in this Article II,
no representation or warranty is made by such Seller as to any information provided in any
management presentation, through any virtual or physical



3









 




data room or otherwise, including in respect of any financial projections, estimates,
forecasts or other data.




ARTICLE III




REPRESENTATIONS AND WARRANTIES OF PURCHASER



     Purchaser represents and warrants to the Sellers as follows:



     Section 3.1. Organization. Purchaser is a corporation duly organized, validly
existing and in good standing (to the extent such concept exists in the relevant jurisdiction)
under the laws of the jurisdiction of its organization and has all requisite corporate power and
authority to own, license, use, lease and operate its assets and properties and to carry on its
business as now being conducted, except where the failure to be so organized, existing and in good
standing or to have such power and authority would not reasonably be expected to prevent or delay
the consummation of the transactions contemplated hereby.



     Section 3.2. Authority. Purchaser has all requisite corporate power and authority to
execute and deliver this Agreement and to perform and consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary organization action on
the part of Purchaser and no other organizational proceedings on the part of Purchaser are
necessary to authorize this Agreement or to consummate such transactions. No vote of the
stockholders of Purchaser is required to approve this Agreement or the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Purchaser and, assuming the due
authorization, execution and delivery of this Agreement by each other party hereto, constitutes a
valid and binding obligation of Purchaser enforceable against it in accordance with its terms.



     Section 3.3. Consents and Approvals; No Violations.



     (a) The execution, delivery and performance by Purchaser of this Agreement and the
consummation by Purchaser of the transactions contemplated hereby do not and will not require any
filing or registration with, notification to, or authorization, permit, consent or approval of, or
other action by or in respect of, any Governmental Authority other than (i) compliance with any
applicable requirements of the Securities Exchange Act of 1934, as amended, and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not reasonably be expected to prevent or materially delay the consummation of
the transactions contemplated hereby.



     (b) The execution, delivery and performance by Purchaser of this Agreement and the
consummation by Purchaser of the transactions contemplated hereby do not and will not (i) conflict
with or result in any breach of any provision of the organizational documents of Purchaser, (ii)
result in a violation or breach of, or constitute (with or without notice or lapse of time or both)
a default under, or give rise to any right of termination, amendment, cancellation, acceleration or
loss of benefits under, or result in the creation of any Encumbrance upon any of the properties or
assets of Purchaser or any of its subsidiaries under, any of the terms, conditions or provisions of
contract to which Purchaser is a party or any of its subsidiaries is a party or by which any of its
properties or assets may be bound or (iii) violate any judgment, order, writ, preliminary or
permanent injunction or decree or any statute, law, ordinance, rule or regulation of any
Governmental Authority applicable to Purchaser, any of its subsidiaries or any of their properties
or assets, except in the case of clauses (ii) or (iii) for violations, breaches or defaults that



4









 




would not reasonably be expected to prevent or materially delay the consummation of the
transactions contemplated hereby.




     Section 3.4. Financing. Purchaser has funds sufficient to pay the Consideration at
the Closing.



     Section 3.5. Brokers and Other Advisors. No broker, investment banker, financial
advisor or other person is entitled to any broker’s, finder’s, financial advisor’s or other similar
fee or commission in connection with the transactions contemplated by this Agreement as a result of
any action taken by or on behalf of Purchaser.



     Section 3.6. Investment Intent. Purchaser is acquiring the Shares for its own
account, for the purpose of investment only and not with a view to, or for sale in connection with,
any distribution thereof in violation of applicable securities laws.



     Section 3.7. Disclosure of Information and Investment Experience.



     (a) The Purchaser understands that the transactions contemplated by this Agreement involve
substantial risk. The Purchaser (i) is a sophisticated investor with respect to the transactions
contemplated by this Agreement, (ii) has adequate information concerning the business and financial
affairs of the Company to make an informed decision regarding the purchase of the Shares pursuant
to the terms and conditions of this Agreement, (iii) has independently and without reliance upon
either Seller, and based on such information as the Purchaser has deemed appropriate, made its own
analysis and decision to purchase the Shares from the Sellers and (iv) has a preexisting business
relationship with the Company of a nature and duration that enables the Purchaser to assess the
merits and risks of the transactions contemplated by this Agreement.



     (b) Neither Seller has given the Purchaser any investment advice, credit information or
opinion on whether the purchase of the Shares is prudent.



     (c) Notwithstanding anything to the contrary contained herein, the Purchaser acknowledges that
(i) either Seller currently may or may not have, and later may or may not come into possession of,
information about the Shares or the Company that is not known to the Purchaser and that may or may
not be material to a decision to purchase the Shares; (ii) it has determined to purchase the Shares
from the Sellers notwithstanding its lack of such knowledge and (iii) neither Seller shall have any
liability to the Purchaser with respect to material information that such Seller possesses and/or
the Purchaser’s lack of such information. The Purchaser hereby waives and releases any claims
relating to the transactions contemplated by this Agreement that it might have against either
Seller or any of their respective subsidiaries or other affiliates, and all of its and their
respective officers, directors, employees, shareholders and agents, whether under applicable
securities laws or otherwise.



     Section 3.8. No Additional Representations. Except as otherwise expressly set forth
in this Article III, Purchaser does not make any representation or warranty of any kind,
express or implied, in connection with the transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, except as expressly set forth in this Article
III, no representation or warranty is made by Purchaser as to any information provided in any
management presentation, through any virtual or physical data room or otherwise, including in
respect of any financial projections, estimates, forecasts or other data.



5









 





ARTICLE IV




MISCELLANEOUS



     Section 4.1. Stockholders Agreement Waiver. Pursuant to Section 5.4 of the
Stockholders Agreement, the Company, the Purchaser, each of the Sellers (with respect to the Shares
being sold by the other Seller), and the Stockholders hereby waive the application of Section
3.2(b) of the Stockholders Agreement to the transactions contemplated hereby.



     Section 4.2. Transfer Taxes. The responsibility for, and the payment obligation in
connection therewith, all transfer, registration, stamp, documentary, sales, use and similar taxes
(excluding all applicable gains taxes), and any penalties, interest and additions to such taxes
incurred, levied or payable in connection with the transactions contemplated by this Agreement
shall be borne and paid by Purchaser and Purchaser will at it own expense file or otherwise submit
all necessary returns and other documentation with respect to all such taxes and fees.



     Section 4.3. Fees and Expenses. Except as otherwise provided in this Agreement, each
party shall bear its own expenses in connection with the transactions contemplated by this
Agreement. For purposes of this Section, “expenses” means the out-of-pocket fees and
expenses of any advisors, counsel and accountants, incurred by the party or on its behalf in
connection with this Agreement and the transactions contemplated hereby.



     Section 4.4. Notices.



     (a) All notices and other communications under this Agreement must be in writing and delivered
to the applicable party or parties in person or by delivery to the address or facsimile number
specified below (or to such other address or facsimile number as the recipient previously shall
have specified by notice to the other parties hereunder):


If to Sellers:



c/o Cornerstone Therapeutics Inc.

1255 Crescent Green Drive, Suite 250

Cary, NC 27518

Attention: Chief Financial Officer

                 General Counsel

Facsimile: (888) 443-3092



With a copy (which shall not constitute notice) to:



Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.

150 Fayetteville Street, Suite 2500

Raleigh, NC 27601

Attention: David B. Clement

Facsimile: (919) 821-6800




6









 







If to Purchaser:



Chiesi Farmaceutici SpA

Via Palermo 26/A

43122 Parma, Italy

Attention: President and CEO

                 Corporate Development Director and Legal and Corporate Affairs
Director

Facsimile: +39-0521-774468



With copies (which shall not constitute notice) to:



Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

Attention: Stephen Paul Mahinka

Facsimile: (202) 739-3001



and



Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, New York 10178

Attention: Emilio Ragosa and Steven A. Navarro

Facsimile: (212) 309-6001




     (b) All notices and other communications sent to the applicable address or facsimile number
specified above shall be deemed to have been delivered at the earlier of (i) the time of actual
receipt by the addressee; (ii) if the notice is sent by facsimile transmission, the time indicated
on the transmitting party’s receipt of confirmation of transmission that time is during the
addressee’s regular business hours on a business day, and otherwise at 9:00 a.m. on the next
business day after such time; and (iii) if the notice is sent by a nationally recognized, reputable
overnight courier service, the time shown on the confirmation of delivery provided by that service
if that time is during the recipient’s regular business hours on a business day, and otherwise at
9:00 a.m. on the next business day after such time.



     Section 4.5. Entire Agreement. This Agreement and the exhibits, annexes and schedules
hereto, constitute the sole and entire agreement among the parties to this Agreement with respect
to the subject matter of this Agreement, and supersede all prior and contemporaneous
representations, agreements and understandings, written or oral, with respect to the subject matter
hereof.



     Section 4.6. Waivers. Subject to applicable law and except as otherwise provided in
this Agreement, any party to this Agreement may, at any time prior to the Closing, extend the time
for performance of any obligation under this Agreement of any other party or waive compliance with
any term or condition of this Agreement by any other party. No such extension or waiver shall be
effective unless set forth in a written instrument duly executed by the party granting such
extension or waiver. No delay in asserting or exercising a right under this Agreement shall be
deemed a waiver of that right.



     Section 4.7. No Third-Party Beneficiaries. The terms and provisions of this Agreement
are intended solely for the benefit of each party hereto and their respective successors or
permitted assigns, and it is not the intention of the parties to confer third-party beneficiary
rights upon any other person.



7









 





     Section 4.8. Assignment; Binding Effect. Neither this Agreement nor any right,
interest or obligation under this Agreement may be assigned by any party to this Agreement, by
operation of law or otherwise, without the prior written consent of the other parties to this
Agreement and any attempt to do so will be void. Subject to the foregoing, this Agreement is
binding upon, inures to the benefit of and is enforceable by the parties to this Agreement and
their respective successors and assigns.



     Section 4.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD FOR ANY OF THE CONFLICTS OF LAWS
PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.



     Section 4.10. CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
DELAWARE CHANCERY COURT SITTING IN THE COUNTY OF NEW CASTLE, OR IF SUCH COURT SHALL NOT HAVE PROPER
JURISDICTION, OF THE UNITED STATES FEDERAL DISTRICT COURT SITTING IN DELAWARE, AND ANY APPELLATE
COURT THEREOF, IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND AGREES THAT ANY SUCH ACTION, SUIT OR
PROCEEDING SHALL BE BROUGHT ONLY IN SUCH COURTS (AND WAIVES AND AGREES NOT TO ASSERT ANY OBJECTION
BASED ON FORUM NON CONVENIENS OR ANY OTHER OBJECTION TO VENUE THEREIN OR JURISDICTION THEREOF);
PROVIDED, HOWEVER, THAT SUCH CONSENT TO JURISDICTION IS SOLELY FOR THE PURPOSE
REFERRED TO IN THIS SECTION 4.10 AND SHALL NOT BE DEEMED TO BE A GENERAL SUBMISSION TO THE
JURISDICTION OF SAID COURTS OR IN THE STATE OF DELAWARE OTHER THAN FOR SUCH PURPOSE. Any and all
process may be served in any action, suit or proceeding arising in connection with this Agreement
by complying with the provisions of Section 4.4. Such service of process shall have the
same effect as if the party being served were a resident in the State of Delaware and had been
lawfully served with such process in such jurisdiction. The parties hereby waive all claims of
error by reason of such service. Nothing herein shall affect the right of any party to serve
process in any other manner permitted by law or to commence legal proceedings or otherwise proceed
against the other in any other jurisdiction to enforce judgments or rulings of the aforementioned
courts. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
EACH OF THE PARTIES HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AS APPLICABLE,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.10.



     Section 4.11. Remedies. The parties hereto agree that if any of the provisions of
this Agreement were not performed in accordance with their specific terms or were otherwise
breached, irreparable damage would occur, no adequate remedy at law would exist and damages would
be difficult to determine, and that the parties shall be entitled to injunctive relief to prevent
breaches of this Agreement and to specific performance of the terms hereof, in addition to any
other remedy at law or equity to which the parties may be entitled. Except as otherwise provided
herein, all remedies available



8









 




under this Agreement, at law or otherwise, shall be deemed cumulative and not alternative or
exclusive of other remedies. The exercise by any party of a particular remedy shall not preclude
the exercise of any other remedy.




     Section 4.12. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (c) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom and (d) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of this Agreement a legal,
valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and the parties hereto shall cooperate in good faith to formulate and
implement such provision.



     Section 4.13. Counterparts. This Agreement may be executed in any number of
counterparts, all of which will constitute one and the same instrument, and will become effective
when a counterpart shall have been executed and delivered by each party to the other parties
(except that parties that are affiliates need not deliver counterparts to each other in order for
this Agreement to be effective). The exchange of copies of this Agreement or amendments thereto
and of signature pages by facsimile transmission or by email transmission in portable document
format, or similar format, shall constitute effective execution and delivery of such instrument(s)
as to the parties and may be used in lieu of the original Agreement or amendment for all purposes.
Signatures of the parties transmitted by facsimile or by email transmission in portable document
format, or similar format, shall be deemed to be original signatures for all purposes.



     Section 4.14. Interpretation.



     (a) When a reference is made in this Agreement to an Article or a Section hereof, such
reference shall be to an Article or a Section of this Agreement unless otherwise indicated.



     (b) The table of contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this Agreement.



     (c) The parties have participated jointly in negotiating and drafting this Agreement. If an
ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this Agreement.



     (d) The words “include,” “includes” or “including” shall be deemed to be followed by the words
“without limitation.”



     (e) The words “hereof,” “herein” and “hereunder” and words of similar import, when used in
this Agreement, refer to this Agreement as a whole and not to any particular provision of this
Agreement.



     (f) All terms defined in this Agreement have their defined meanings when used in any
certificate or other document made or delivered pursuant hereto, unless otherwise defined therein.



     (g) The definitions contained in this Agreement are applicable to the singular as well as the
plural forms of such terms.



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     (h) If any action is to be taken by any party hereto pursuant to this Agreement on a day that
is not a business day, such action shall be taken on the next business day following such day.



     (i) References to a person are also to its permitted successors and assigns.



     (j) The use of “or” is not intended to be exclusive unless expressly indicated otherwise.



     (k) The term “person” means any natural person, corporation, general partnership,
limited partnership, limited or unlimited liability company, proprietorship, joint venture, other
business organization, trust, union, association or Governmental Authority.



     (l) Except as otherwise may be provided herein, the term “business day” means any day
other than a Saturday, Sunday or day when commercial banks in New York City are permitted or
required by law to be closed for the conduct of regular banking business.



     (m) The term “affiliate” means, with respect to any person, any other person that
directly, or indirectly through one or more intermediaries, controls, is controlled by or is under
common control with the person specified. The term “control” (including the terms
“controlling,” “controlled by” and “under common control with”) means possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract or otherwise.



[signature page follows]





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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	CHIESI FARMACEUTICI SPA

 	 
	 	By:  	/s/ Alberto Chiesi
 	 
	 	 	Name:  	Alberto Chiesi 	 
	 	 	Title:  	President and CEO 	 
	 
	 	CORNERSTONE BIOPHARMA HOLDINGS, LTD.

 	 
	 	By:  	/s/ Craig A. Collard
 	 
	 	 	Name:  	Craig A. Collard 	 
	 	 	Title:  	Director 	 
	 
	 	LUTZ FAMILY LIMITED PARTNERSHIP



By: STEVEN M. LUTZ, its general partner

 	 
	 	/s/ Steven M. Lutz
 	 
	 	Steven M. Lutz 	 
	 	 	 
	 	CORNERSTONE THERAPEUTICS, INC.

 	 
	 	By:  	/s/ Andrew K. W. Powell
 	 
	 	 	Name:  	Andrew K. W. Powell 	 
	 	 	Title:  	Executive Vice President, General Counsel and Secretary 	 
	 
	 	CAROLINA PHARMACEUTICALS, LTD.

 	 
	 	By:  	/s/ Craig A. Collard
 	 
	 	 	Name:  	Craig A. Collard 	 
	 	 	Title:  	Director 	 
	 	 	 
	 	                                               /s/ Craig A. Collard
 	 
	 	Craig A. Collard 	 
	 	 	 
	 	                                              /s/ Steven M. Lutz
 	 
	 	Steven M. Lutz 	 
	 	 	 
	 



Signature Page to Stock Purchase Agreement




 









 








EXHIBIT A




SELLERS’ HOLDINGS



	 	 	 	 	 
	Stockholder	 	No. of Shares to be Sold	 
	 
	 	 	 	 
	CORNERSTONE BIOPHARMA HOLDINGS, LTD.
	 	385,000 shares
	 
	 	 	 	 
	LUTZ FAMILY LIMITED PARTNERSHIP
	 	65,000 shares
	 
	 	 	 	 
	 
	 
	 	 	 	 
	TOTAL
	 	450,000 shares