exv10w2






EXHIBIT 10.2




 

 



STOCK PURCHASE AGREEMENT




by and among




CHIESI FARMACEUTICI SPA,




CORNERSTONE BIOPHARMA HOLDINGS, LTD.




and




LUTZ FAMILY LIMITED PARTNERSHIP




Dated as of May 6, 2009




 

 


 









 





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	 	 	1	 
	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.
	 	Representations and Warranties Regarding the Company	 	 	3	 
	Section 2.5.
	 	No Additional Representations	 	 	3	 
	 
	 	 	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER	 	 	3	 
	Section 3.1.
	 	Organization	 	 	3	 
	Section 3.2.
	 	Authority	 	 	3	 
	Section 3.3.
	 	Consents and Approvals; No Violations	 	 	3	 
	Section 3.4.
	 	Financing	 	 	4	 
	Section 3.5.
	 	Brokers and Other Advisors	 	 	4	 
	Section 3.6.
	 	Investment Intent	 	 	4	 
	Section 3.7.
	 	No Additional Representations	 	 	4	 
	 
	 	 	 	 	 	 
	ARTICLE IV COVENANTS	 	 	4	 
	Section 4.1.
	 	Reasonable Best Efforts to Consummate	 	 	4	 
	Section 4.2.
	 	Transfer Taxes	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE V CONDITIONS	 	 	5	 
	Section 5.1.
	 	Conditions to Each Party’s Obligations	 	 	5	 
	Section 5.2.
	 	Conditions to Obligations of Purchaser	 	 	5	 
	Section 5.3.
	 	Conditions to Obligations of the Sellers	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE VI TERMINATION; AMENDMENT AND EXPENSES	 	 	6	 
	Section 6.1.
	 	Termination	 	 	6	 
	Section 6.2.
	 	Effect of Termination	 	 	6	 
	Section 6.3.
	 	Fees and Expenses	 	 	6	 
	 
	 	 	 	 	 	 
	ARTICLE VII MISCELLANEOUS	 	 	7	 
	Section 7.1.
	 	Representations and Warranties Do Not Survive	 	 	7	 
	Section 7.2.
	 	Notices	 	 	7	 






 









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 7.3.
	 	Entire Agreement	 	 	8	 
	Section 7.4.
	 	Waiver	 	 	8	 
	Section 7.5.
	 	Amendment	 	 	8	 
	Section 7.6.
	 	No Third-Party Beneficiaries	 	 	8	 
	Section 7.7.
	 	Assignment; Binding Effect	 	 	9	 
	Section 7.8.
	 	GOVERNING LAW	 	 	9	 
	Section 7.9.
	 	CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL	 	 	9	 
	Section 7.10.
	 	Remedies	 	 	9	 
	Section 7.11.
	 	Invalid Provisions	 	 	10	 
	Section 7.12.
	 	Counterparts	 	 	10	 
	Section 7.13.
	 	Interpretation	 	 	10	 
	 
	 	 	 	 	 	 
	Exhibit A: Sellers’ Holdings	 	 	 	 






ii









 






INDEX OF DEFINED TERMS




	 	 	 	 	 
	 	 	Page
	affiliate
	 	 	11	 
	Agreement
	 	 	1	 
	business day
	 	 	11	 
	Closing
	 	 	1	 
	Closing Date
	 	 	1	 
	Common Stock
	 	 	1	 
	Company
	 	 	1	 
	Company Stock Purchase Agreement
	 	 	1	 
	Company Stock Sale
	 	 	1	 
	Consideration
	 	 	1	 
	contract
	 	 	3	 
	control
	 	 	11	 
	Encumbrances
	 	 	2	 
	expenses
	 	 	6	 
	Governmental Authority
	 	 	2	 
	Initial Stock Sale
	 	 	1	 
	ordinary course of business
	 	 	11	 
	person
	 	 	11	 
	Purchaser
	 	 	1	 
	reasonable best efforts
	 	 	11	 
	Shares
	 	 	1	 
	subsidiary
	 	 	11	 
	to such Seller’s knowledge
	 	 	11	 







iii











 





STOCK PURCHASE AGREEMENT




     This STOCK PURCHASE AGREEMENT, dated as of May 6, 2009 (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 North Carolina limited
partnership (collectively, the “Sellers”).



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 Cornerstone Therapeutics Inc., a
Delaware corporation (the “Company”), set forth opposite such Seller’s name on Exhibit
A hereto (collectively, the “Shares”);



     WHEREAS, the parties wish to engage in a series of transactions pursuant to which, among other
things (i) Purchaser will purchase the Shares from the Sellers (the “Initial Stock Sale”)
for an aggregate consideration of $8,800,00 (which represents $5.50 per share); (ii) Purchaser will
contribute to the Company $15,465,075 in cash and the exclusive rights to distribute and market
Curosurf in the United States in exchange for 11,902,741 newly-issued shares of the Common Stock
(the “Company Stock Sale”); and (iii) by means of the Initial Stock Sale and the Company
Stock Sale, Purchaser will own shares representing approximately 13,502,741 shares of Common Stock;
and



     WHEREAS, concurrently with the execution and delivery of this Agreement, the Company and
Purchaser are entering into a stock purchase agreement, dated the same date as this Agreement,
which provides for the Company Stock Sale to be consummated concurrently with the Initial Stock
Sale upon the terms and subject to the conditions set forth therein (the “Company Stock
Purchase Agreement”);



     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, the Sellers will sell, assign, transfer and deliver the
Shares to Purchaser, and Purchaser will purchase and accept the 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.$5.50 per share in cash.



     Section 1.3. Closing. The closing of the Initial Stock Sale (the “Closing”)
shall be held at the offices of Clifford Chance US LLP, 31 West 52nd Street, New York,
New York 10019, at 10:00 a.m. local time, on the second business day following the satisfaction or
waiver of all conditions set forth in Article V (other than conditions that, by their
nature, are to be satisfied at the Closing, but subject to the satisfaction or waiver of those
conditions) or at such other time or place as Purchaser and the Sellers mutually shall agree. The
date of the Closing is referred to herein as the “Closing Date”.



     Section 1.4. Closing Deliveries by the Sellers. At the Closing, each Seller shall
deliver or cause to be delivered to Purchaser a certificate or certificates representing the number
of Shares to be sold



 









 




by him (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.



     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 “Governmental Authority”) other than where the failure to
obtain such consents, approvals, authorizations or permits or to make such filings or notifications
would not reasonably be expected to have a Material Adverse Effect (as defined in the Company Stock
Purchase Agreement).



     (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,



2









 




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 his 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. Representations and Warranties Regarding the Company. To such Seller’s
knowledge, as of the date of this Agreement, each of the representations and warranties of the
Company contained in Article II of the Company Stock Purchase Agreement is true and correct in all
material respects, subject to the first sentence of Article II thereof.



     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 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



3









 




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 and thereby.




     (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
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. 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.



ARTICLE IV




COVENANTS




     Section 4.1. Reasonable Best Efforts to Consummate. Subject to the terms and
conditions of this Agreement, each of the parties to this Agreement shall (and shall cause its
respective subsidiaries, if



4









 




any, to) use its reasonable best efforts to take all actions and to do all things necessary,
proper or advisable to consummate the transactions contemplated by this Agreement as promptly as
practicable, including using its reasonable best efforts to prepare, execute and deliver such
instruments and take or cause to be taken such actions as any other party shall reasonably request.




     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.



ARTICLE V




CONDITIONS




     Section 5.1. Conditions to Each Party’s Obligations. The respective obligations of
each party to effect the Closing are subject to the satisfaction or waiver at or prior to the
Closing of the condition that no statute, rule, regulation, executive order, decree, ruling,
judgment, decision or injunction shall have been enacted, entered, promulgated or enforced by any
court or other Governmental Authority of competent jurisdiction that prohibits the consummation of
the transactions contemplated by this Agreement.



     Section 5.2. Conditions to Obligations of Purchaser. The obligations of Purchaser to
effect the Closing are further subject to the satisfaction or waiver at or prior to the Closing of
the following conditions:



     (a) the representations and warranties of the Sellers shall be true and correct in all
material respects as of the Closing Date; provided, that for this purpose any
representation or warranty of a Seller in this Agreement that is made only as of a specific date
shall be required to be true and correct (to the extent specified above) only as of the specific
date;



     (b) the Sellers shall have performed in all material respects all of its covenants and
obligations required to be performed by them under this Agreement at or prior to the Closing; and



     (c) each of the conditions set forth in Article V of the Company Stock Purchase
Agreement shall have been satisfied or waived, such that the closing provided for in the Company
Stock Purchase Agreement will take place concurrently with the Closing provided for in this
Agreement.



     Section 5.3. Conditions to Obligations of the Sellers. The obligations of the Sellers
to effect the Closing are further subject to the satisfaction or waiver at or prior to the Closing
of the following conditions:



     (a) the representations and warranties of Purchaser set forth in this Agreement shall be true
and correct in all material respects as of the Closing Date;



     (b) Purchaser shall have performed in all material respects all of its covenants and
obligations required to be performed by it under this Agreement at or prior to the Closing; and



5









 





     (c) each of the conditions set forth in Article V of the Company Stock Purchase
Agreement shall have been satisfied or waived, such that the closing provided for in the Company
Stock Purchase Agreement will take place concurrently with the Closing provided for in this
Agreement.



ARTICLE VI




TERMINATION; AMENDMENT AND EXPENSES




     Section 6.1. Termination. This Agreement may be terminated, and the transactions
contemplated by this Agreement may be abandoned, at any time prior to the Closing by:



     (a) mutual written consent of the Sellers and Purchaser;



     (b) either the Sellers or Purchaser if any court of competent jurisdiction or other competent
Governmental Authority shall have issued a statute, rule, regulation, order, decree or injunction
or taken any other action permanently restraining, enjoining or otherwise prohibiting all or any
portion of the transactions contemplated by this Agreement and such statute, rule, regulation,
order, decree or injunction or other action shall have become final and nonappealable;



     (c) the Sellers or Purchaser, in the event (i) of a material breach of this Agreement by the
non-terminating party if such non-terminating party fails to cure such breach within twenty
business days following notification thereof by the terminating party or (ii) the satisfaction of
any condition to the terminating party’s obligations under this Agreement becomes impossible if the
failure of such condition to be satisfied is not caused by a breach of this Agreement by the
terminating party or its affiliates;



     (d) the Sellers or Purchaser if the Closing shall not have occurred on or before October 31,
2009, unless the failure to consummate the Closing is due to the failure to act by the terminating
party (or its affiliates); or



     (e) automatically, without the action of either the Sellers or Purchaser, if the Company Stock
Purchase Agreement is terminated pursuant to Section 6.1 thereof.



     Section 6.2. Effect of Termination. If this Agreement is terminated by either
Purchaser or the Sellers as provided in Section 6.1, this Agreement shall forthwith become
void except as specifically provided herein and except for Article VII, which will survive
termination, and there shall be no liability or obligation on the part of any party hereunder;
provided, that nothing contained in this Section 6.2 shall relieve any party from
liability arising out of any knowing or willful breach of any of its representations, warranties,
covenants or other undertakings set forth in this Agreement, which liability shall survive for the
statute of limitations applicable to such claim. Notwithstanding the foregoing, nothing contained
in this Agreement shall relieve the Sellers from liability arising out of any breach of the
representations and warranties contained in Section 2.1, which liability shall survive for
the statutes of limitation applicable to such claim.



     Section 6.3. Fees and Expenses. Whether or not the transactions contemplated by this
Agreement are consummated and 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.



6









 





ARTICLE VII




MISCELLANEOUS




     Section 7.1. Representations and Warranties Do Not Survive. Other than as described
in Section 6.2, none of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Closing. This Section
7.1 shall not limit any covenant or agreement which by its terms contemplates performance after
the Closing.



     Section 7.2. 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:
	 
	 	 
	 

	 	Clifford Chance US LLP
	 

	 	31 West 52nd Street
	 

	 	New York, New York 10019
	 

	 	Attention: John A. Healy
	 

	 	Facsimile:  (212) 878-8375
	 
	 	 
	 

	 	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






7









 






	 	 	 
	 

	 	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 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 7.3. Entire Agreement. This Agreement and the exhibits, annexes and schedules
hereto, together with the other Transaction Documents (as defined in the Company Stock Purchase
Agreement) and the Sellers’ Disclosure Schedule, 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 7.4. Waiver. 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 wavier of that right.



     Section 7.5. Amendment. Subject to applicable law and except as otherwise provided in
this Agreement, this Agreement may be amended, supplemented or modified at any time prior to the
Closing. No such amendment, supplement or modification shall be effective unless it is set forth
in a written instrument duly executed by each of the parties hereto.



     Section 7.6. 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.



8









 





     Section 7.7. 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 7.8. 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 7.9. 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 7.9 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 7.2. 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 7.9.



     Section 7.10. 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



9









 




equity to which the parties may be entitled. Except as otherwise provided herein, all
remedies available 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 7.11. 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 7.12. Counterparts. This Agreement may be executed manually or by facsimile,
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).



     Section 7.13. 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.



     (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.



10









 





     (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 “reasonable best efforts” or similar terms shall not require the waiver
of any rights under this Agreement.



     (l) The term “to such Seller’s knowledge” and any similar term shall be deemed to
mean, with respect to any fact or matter, the actual knowledge of such Seller.



     (m) A “subsidiary” of any person means another person, an amount of the voting
securities, other voting ownership or voting partnership interests of which is sufficient to elect
at least a majority of its board of directors or other governing body (or, if there are no such
voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by
such first person.



     (n) 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.



     (o) The term “ordinary course of business” (or similar terms) shall be deemed to be
followed by the words “consistent with past practice.”



     (p) 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.



     (q) 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.



11









 





     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 	 
	 
	 	SELLERS

 	 
	 	CORNERSTONE BIOPHARMA HOLDINGS, LTD.

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

 	 
	 	By:  	STEVEN M. LUTZ, it general partner
 	 
	 
	 	                                              /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.
	 	 	1,250,000	 
	 
	 	 	 	 
	LUTZ FAMILY LIMITED PARTNERSHIP
	 	 	350,000