CONFIDENTIAL Amarin Corporation plc
Exhibit
99.1
December
3, 2007
CONFIDENTIAL
Amarin
Corporation plc
0
Xxxxxx
Xxxxxx
Xxxxxx
X0X 0XX, Xxxxxxx
Attn: Xxxx
Xxxxx, CFO
Dear
Xxxx:
This
letter (the “Agreement”) constitutes the agreement between Xxxxxx &
Xxxxxxx, LLC (“R&R” or the “Placement Agent”) and Amarin
Corporation plc (the “Company”), that R&R shall serve as the
exclusive placement agent for the Company, on a “reasonable best efforts” basis,
in connection with the proposed placement (the “Placement”) of ordinary
shares, ₤0.05 par value per share, of the Company (each, a “Share”), each Share
represented by one American Depositary Share (“ADS”), evidenced by one
American Depositary Receipt (“ADR”), and (ii) warrants to purchase
Shares, each Ordinary Share represented by one ADS, evidenced by one ADR (the
Shares and such warrants collectively, the
“Securities”). R&R shall be authorized to utilize
sub-placement agents and/or selected dealers in its discretion (provided that
the use of any sub-placement agent and/or selected dealers by Xxxxxx shall
not
increase any fees or expenses payable by the Company under this Agreement or
release R&R from its obligations under this Agreement) in compliance with
applicable rules and regulations. The terms of such Placement and the
Securities shall be mutually agreed upon by the Company and the purchasers
(each, a “Purchaser” and collectively, the “Purchasers”) and
nothing herein provides R&R with any power or authority to bind the Company
or any Purchaser or obligates the Company to issue any Securities or complete
the Placement. This Agreement and the documents executed and
delivered by the Company and the Purchasers in connection with the Placement
shall be collectively referred to herein as the “Transaction
Documents.” The date of the closing of the Placement shall
be referred to herein as the “Closing Date.” The Company
expressly acknowledges and agrees that R&R’s obligations hereunder are on a
reasonable best efforts basis only and that the execution of this Agreement
does
not constitute a commitment by R&R to purchase the Securities and does not
ensure the successful placement of the Securities or any portion thereof or
the
success of R&R with respect to securing any other financing on behalf of the
Company.
I. COMPENSATION
AND OTHER
FEES.
A. As
compensation for the services provided by R&R hereunder, the Company agrees
to pay to R&R a cash fee payable immediately upon the closing of the
Placement equal to 5% of the aggregate gross proceeds raised from the placement
of the Securities; provided that in the case of those investors listed on
Schedule A hereto, the cash fee shall equal 2.5% of the aggregate gross proceeds
raised from such investors.
B. The
Company also agrees to reimburse R&R’s reasonable, out-of-pocket expenses
(with supporting invoices/receipts) if the Placement is
consummated. If the Placement is not consummated (i) due to the
occurrence of any event specified in subsection 8(F) or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or to comply with any provision hereof, in each case such expenses shall not
exceed $50,000 without prior written consent of the Company, or (ii) if the
Placement is not consummated for any other reason not mentioned in (i) above,
then such expenses shall not exceed $10,000 without prior written consent of
the
Company. Such reimbursement shall be payable immediately upon the
closing of the Placement or within a reasonable time after any other termination
of this Agreement.
II. REGISTRATION
STATEMENT.
The
Company represents and warrants to, and agrees with, the Placement Agent
that:
A. The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form F-3 (Registration File
No. 333-135718) under the Securities Act of 1933,
as amended (the “Securities Act”), which became effective on August 2, 2006, for
the registration under the Securities Act of the Shares. At the time
of such filing, the Company met the requirements of Form F-3 under the
Securities Act. Such registration statement meets the requirements
set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said
Rule. The Company will file with the Commission pursuant to Rule
424(b) under the Securities Act, and the rules and regulations (the “Rules and
Regulations”) of the Commission promulgated thereunder, a supplement to the form
of prospectus included in such registration statement relating to the placement
of the Shares, the plan of distribution thereof and all further information
(financial and other) with respect to the Company required to be set forth
therein. Such registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called the “Registration
Statement”; such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the “Base Prospectus”; and the supplemented form
of prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424(b) (including the Base Prospectus as so supplemented)
is
hereinafter called the “Prospectus Supplement.” Any reference in this
Agreement to the Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the documents incorporated
by
reference therein (the “Incorporated Documents”) pursuant to Item 9 of Form F-3
which were filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on or before the date of this Agreement, or the issue date of
the Base Prospectus or the Prospectus Supplement, as the case may be; and any
reference in this Agreement to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, the Base Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the filing of
any
document under the Exchange Act after the date of this Agreement, or the issue
date of the Base Prospectus or the Prospectus Supplement, as the case may be,
deemed to be incorporated therein by reference. All references in this Agreement
to financial statements and schedules and other information which is
“contained,” “included,” “described,” “referenced,” “set forth” or “stated” in
the Registration Statement, the Base Prospectus or the Prospectus Supplement
(and all other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information which is
or is
deemed to be incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or the use
of
the Base Prospectus or the Prospectus Supplement has been issued, and no
proceeding for any such purpose is pending or has been initiated or, to the
Company's knowledge, is threatened by the Commission. For purposes of this
Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under
the Securities Act and the “Time of Sale Prospectus” means the preliminary
prospectus, if any, together with the free writing prospectuses, if any, used
in
connection with the Placement, including any documents incorporated by reference
therein.
B. The
Registration Statement (and any further documents to be filed with the
Commission) contains all exhibits and schedules as required by the Securities
Act. Each of the Registration Statement and any post-effective
amendment thereto, at the time it became effective, complied in all material
respects with the Securities Act and the Exchange Act and the applicable Rules
and Regulations and did not and, as amended or supplemented, if applicable,
will
not, contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Base Prospectus, the Time of Sale Prospectus, if any, and
the Prospectus Supplement, each as of its respective date, complied in all
material respects with the Securities Act and the Exchange Act and the
applicable Rules and Regulations. Each of the Base Prospectus, the Time of
Sale
Prospectus, if any, and the Prospectus Supplement, as amended or supplemented,
did not and will not contain as of the date thereof any untrue statement of
a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act and the applicable Rules and Regulations, and none of such
documents, when they were filed with the Commission, contained any untrue
statement of a material fact or omitted to state a material fact necessary
to
make the statements therein (with respect to Incorporated Documents incorporated
by reference in the Base Prospectus or Prospectus Supplement), in light of
the
circumstances under which they were made not misleading; and any further
documents so filed and incorporated by reference in the Base Prospectus, the
Time of Sale Prospectus, if any, or Prospectus Supplement, when such documents
are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the applicable Rules and Regulations,
as
applicable, and will not contain any untrue statement of a material fact or
omit
to state a material fact necessary to make the statements therein, in light
of
the circumstances under which they were made, not misleading. No post-effective
amendment to the Registration Statement reflecting any facts or events arising
after the date thereof which represent, individually or in the aggregate, a
fundamental change in the information set forth therein is required to be filed
with the Commission. There are no documents required to be filed with
the Commission in connection with the transaction contemplated hereby that
(x)
have not been filed as required pursuant to the Securities Act or (y) will
not
be filed within the requisite time period. There are no contracts or other
documents required to be described in the Base Prospectus, the Time of Sale
Prospectus, if any, or Prospectus Supplement, or to be filed as exhibits or
schedules to the Registration Statement, which have not been described or filed
(including any description or filing made through incorporation by reference
of
the SEC Reports (as defined in subsection 3(G)) as required.
C. The
Company is eligible to use free writing prospectuses in connection with the
Placement pursuant to Rules 164 and 433 under the Securities Act. Any
free writing prospectus that the Company is required to file pursuant to Rule
433(d) under the Securities Act has been, or will be, filed with the Commission
in accordance with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file, pursuant to
Rule
433(d) under the Securities Act or that was prepared by or behalf of or used
by
the Company complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
of
the Commission thereunder. The Company will not, without the prior
consent of the Placement Agent, prepare, use or refer to, any free writing
prospectus in connection with the Placement.
D. the
Company has delivered, or will as promptly as practicable deliver, to the
Placement Agent complete conformed copies of the Registration Statement and
of
each consent and certificate of experts, as applicable, filed as a part thereof,
and conformed copies of the Registration Statement (without exhibits), the
Base
Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement,
as amended or supplemented, in such quantities and at such places as the
Placement Agent reasonably requests. Neither the Company nor any of
its directors and officers has distributed and none of them will distribute,
prior to the Closing Date, any offering material in connection with the offering
and sale of the Shares other than the Base Prospectus, the Time of Sale
Prospectus, if any, the Prospectus Supplement, the Registration Statement,
copies of the documents incorporated by reference therein and any other
materials permitted by the Securities Act.
III. REPRESENTATIONS
AND
WARRANTIES. The Company hereby
makes the representations and warranties set forth below to the Placement
Agent.
A. Organization
and Qualification. All of the direct and indirect subsidiaries
(individually, a “Subsidiary”) of the Company are set forth on in the Company’s
annual report on Form 20-F for the fiscal year ended December 31,
2006. The Company owns, directly or indirectly, all of the capital
stock or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security
interest, encumbrance, right of first refusal, preemptive right or similar
restriction), and all the issued and outstanding shares of capital stock of
each
Subsidiary are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase
securities. The Company is duly incorporated and validly existing
under the laws of England and Wales, with the requisite power and authority
to
own and use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or
default of any of the provisions of its respective certificate or articles
of
incorporation, bylaws or other organizational or charter
documents. The Company is duly qualified to conduct business as a
foreign corporation in each United States jurisdiction in which the nature
of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing,
as
the case may be, could not reasonably be expected to have (i) a material adverse
effect on the legality, validity or enforceability of any Transaction Document,
(ii) a material adverse effect on the results of operations, assets, business,
or financial condition of the Company and the Subsidiaries, taken as a whole,
or
(iii) a material adverse effect on the Company’s ability to perform in any
material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no
“Proceeding” (which for purposes of this Agreement shall mean any action, claim,
suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced
or
threatened) has been instituted in any such jurisdiction revoking, limiting
or
curtailing or seeking to revoke, limit or curtail such power and authority
or
qualification. Each Subsidiary is duly incorporated or otherwise
organized and validly existing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. Each Subsidiary is duly qualified to conduct
business as a foreign corporation or other entity in each United States
jurisdiction in which the nature of the business conducted or property owned
by
it makes such qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not reasonably be
expected to have a Material Adverse Effect.
B. Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by
each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated thereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the
Company, its board of directors or its stockholders in connection therewith
other than in connection with the “Required Approvals” (as defined in subsection
3(D) below). Each Transaction Document has been (or upon delivery
will have been) duly executed by the Company and, when delivered in accordance
with the terms hereof and thereof, will constitute the valid and binding
obligation of the Company; each Transaction Document shall be enforceable
against the Company in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of
general application affecting enforcement of creditors’ rights generally (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) rights to indemnity and
contribution may be limited by applicable law or public policy.
C. No
Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company, the issuance and sale of the Securities
and the consummation by the Company of the other transactions contemplated
hereby and thereby do not and will not (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse
of
time or both would become a default) under, result in the creation of any Lien
upon any of the properties or assets of the Company or any Subsidiary, or give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company or Subsidiary debt
or
otherwise) or, to our knowledge, other understanding to which the Company or
any
Subsidiary is a party or by which any property or asset of the Company or any
Subsidiary is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal
and
state securities laws and regulations), or by which any property or asset of
the
Company or a Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), such as could not reasonably be expected to
result in a Material Adverse Effect.
D. Filings,
Consents and Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other “Person” (defined as an individual or
corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or
an
agency or subdivision thereof) or any Trading Market (as defined in subsection
3(E) below)) in connection with the execution, delivery and performance by
the
Company of the Transaction Documents, other than such filings as are required
to
be made under applicable securities laws of England and Wales, the
Republic of Ireland and U.S. Federal and state securities laws, the listing
of
the ADS on the Nasdaq Capital Market and the Common Stock on the AIM Market
of
the London Stock Exchange and the IEX Market of the Irish Stock Exchange and
any
notification filing related thereto, or under the rules and regulations of
the
Financial Industry Regulatory Authority (“FINRA”) (collectively, the “Required
Approvals”).
E. Issuance
of the Securities; Registration. The Securities when issued and
paid for in accordance with the applicable Transaction Documents, will be duly
authorized and validly issued, fully paid and nonassessable, free and clear
of
all Liens imposed by the Company other than restrictions on transfer provided
for in the Transaction Documents. The Company will reserve from its
duly authorized capital stock the maximum number of shares of Common Stock
issuable pursuant to the Transaction Documents. The issuance by the
Company of the Securities has been registered under the Securities Act and
all
of the Securities are freely transferable and tradable by the Purchasers without
restriction (other than any restrictions arising solely from an act or omission
of a Purchaser). The Securities are being issued pursuant to the
Registration Statement and the issuance of the Securities has been registered
by
the Company under the Securities Act. The Registration Statement is
effective and available for the issuance of the Securities thereunder and the
Company has not received any notice that the Commission has issued or intends
to
issue a stop-order with respect to the Registration Statement or that the
Commission otherwise has suspended or withdrawn the effectiveness of the
Registration Statement, either temporarily or permanently, or intends or has
threatened in writing to do so. The “Plan of Distribution” section
under the Registration Statement permits the issuance and sale of the Securities
hereunder. Upon receipt of the Securities, the Purchasers will have
good title to such Securities and the Shares will be listed on the “Trading
Market” (which, for purposes of this Agreement shall mean the Nasdaq Capital
Market).
F. Capitalization. The
capitalization of the Company is as set forth in the Prospectus
Supplement. The Company has not issued any capital stock since its
most recently filed report under the Exchange Act, other than pursuant to the
exercise of employee stock options under the Company’s stock option plans, the
issuance of shares of Common Stock to employees pursuant to the Company’s
employee stock purchase plan and pursuant to the conversion or exercise of
securities exercisable, exchangeable or convertible into Common Stock (“Common
Stock Equivalents”), other than in connection with the acquisition of Ester
Neurosciences Limited (the “Ester Acquisition”), an Israeli company, and any
related fees, pursuant to the Stock Purchase Agreement dated December
[ ], 2007 among the Company and the other parties named
therein. Except as disclosed the SEC Reports, the Registration
Statement, the Base Prospectus, the Prospectus Supplement or any Time of Sale
Prospectus, no Person has any right of first refusal, preemptive right, right
of
participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. Except as a result of the
purchase and sale of the Securities or as described above or in the SEC Reports,
the Registration Statement, the Base Prospectus, the Prospectus Supplement
or
any Time of Sale Prospectus, and except for the transactions listed on Schedule
B attached hereto, there are no outstanding options, warrants, script rights
to
subscribe to, calls or commitments of any character whatsoever relating to,
or
securities, rights or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, or agreements by which
the Company or any Subsidiary is or may become bound to issue additional shares
of Common Stock or Common Stock Equivalents. The issuance and sale of
the Securities will not result in a right of any holder of Company securities
to
adjust the exercise, conversion, exchange or reset price under such securities.
All of the outstanding shares of capital stock of the Company are validly
issued, fully paid and nonassessable, have been issued in compliance with all
applicable securities laws, and none of such outstanding shares was issued
in
violation of any preemptive rights or similar rights to subscribe for or
purchase securities. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s stockholders.
G. SEC
Reports; Financial Statements. The Company has complied in all
material respects with requirements to file all reports, schedules, forms,
statements and other documents required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “SEC Reports”) on a timely basis or
has received a valid extension of such time of filing and has filed any such
SEC
Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The financial statements of the
Company included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles (“GAAP”) applied on
a consistent basis during the periods involved (the financial statements are
prepared under U.K. GAAP and reconciled to U.S. GAAP), except as may be
otherwise specified in such financial statements or the notes thereto and except
that unaudited financial statements may not be reconciled to U.S. GAAP or
contain all footnotes required by GAAP, and fairly present in all material
respects the financial position of the Company and its consolidated subsidiaries
as of and for the dates thereof and the results of operations and cash flows
for
the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
H. Material
Changes; Undisclosed Events, Liabilities or Developments. Since
the date of the latest audited financial statements included within the SEC
Reports, except as specifically disclosed in the SEC Reports, (i) there has
been
no event, occurrence or development that has had or that could reasonably be
expected to result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent
with
past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or required to be disclosed in filings
made with the Commission, (iii) the Company has not altered its method of
accounting, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock and (v) the Company has not issued any equity securities to any officer,
director or “Affiliate” (defined as any Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with a Person, as such terms are used in and construed under
Rule
144 under the Securities Act), except pursuant to existing Company stock option
plans and other than financing by the Company for cash with third parties in
which such officers, directors or Affiliates may have participated on terms
no
more favorable to those given to such third parties. Except for the
issuance of the Securities contemplated by this Agreement, no event, liability
or development has occurred or exists with respect to the Company or its
Subsidiaries or their respective business, properties, operations or financial
condition, that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made that has
not
been publicly disclosed at least 1 Trading Day prior to the date that this
representation is made.
I. Litigation. Except
as disclosed in the SEC Reports, the Registration Statement, the Base
Prospectus, the Prospectus Supplement or any Time of Sale Prospectus, there
is
no action, suit, inquiry, notice of violation, Proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting
the
Company, any Subsidiary or any of their respective properties before or by
any
court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “Action”) which (i)
adversely affects or challenges the legality, validity or enforceability of
any
of the Transaction Documents or the Securities or (ii) could, if there were
an
unfavorable decision, reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any Subsidiary, nor any director or
officer thereof, is or has been the subject of any Action involving a claim
of
violation of or liability under federal or state securities laws or a claim
of
breach of fiduciary duty. Except as disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or any
Time of Sale Prospectus, there has not been, and to the knowledge of the
Company, there is not pending or contemplated, any investigation by the
Commission involving the Company or any current or former director or officer
of
the Company regarding the business, operations, activities or securities of
the
Company. The Commission has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by the Company
or any Subsidiary under the Exchange Act or the Securities Act. The
Company and its Subsidiaries are in compliance with all U.S. federal, state,
local and foreign laws and regulations relating to employment and employment
practices, terms and conditions of employment and wages and hours, except where
the failure to be in compliance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
J. Labor
Relations. Except as disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or any
Time of Sale Prospectus, no material labor dispute exists or, to the knowledge
of the Company, is imminent with respect to any of the employees of the Company
which could reasonably be expected to have a Material Adverse
Effect.
K. Compliance. Neither
the Company nor any Subsidiary (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is
in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound, (ii) is in violation of any order
of
any court, arbitrator or governmental body, or (iii) is or has been in violation
of any statute, rule or regulation of any governmental authority, including
without limitation all foreign, federal, state and local laws applicable to
its
business and all such laws that affect the environment, except in each case
as
could reasonably be expected to not have a Material Adverse Effect.
L. Regulatory
Permits. Except as disclosed in the SEC Reports, the Registration
Statement, the Base Prospectus, the Prospectus Supplement or any Time of Sale
Prospectus, the Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state, local
or
foreign regulatory authorities necessary to conduct their respective businesses
as described in the SEC Reports (“Material Permits”), except where the failure
to possess such permits could not reasonably be expected to have in a Material
Adverse Effect, and neither the Company nor any Subsidiary has received any
notice of proceedings relating to the revocation or modification of any Material
Permit which revocation or modification could reasonably be expected to have
a
Material Adverse Effect.
M. Title
to Assets. The Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them that is
material to the business of the Company and the Subsidiaries and good and
marketable title in all personal property owned by them that is material to
the
business of the Company and the Subsidiaries, in each case free and clear of
all
Liens, except for Liens as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of
such property by the Company and the Subsidiaries and Liens for the payment
of
federal, state or other taxes, the payment of which is neither delinquent nor
subject to penalties. Any real property and facilities held under
lease by the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases of which the Company and the Subsidiaries
are
in compliance, except where such invalidity, failure to subsist,
unenforceability or non-compliance would be deemed immaterial.
N. Patents
and Trademarks. Except as disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or any
Time of Sale Prospectus or as could not reasonably be expected to have a
Material Adverse Effect, (A) the Company and the Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other similar intellectual property rights necessary or material
for use in connection with their respective businesses as described in the
SEC
Reports (collectively, the “Intellectual Property Rights”); (B) neither the
Company nor any Subsidiary has received a written notice that the Intellectual
Property Rights used by the Company or any Subsidiary violates or infringes
upon
the rights of any Person; (C) to the knowledge of the Company, all such
Intellectual Property Rights are valid and there is no existing infringement
by
another Person of any of the Intellectual Property Rights; and (D) the Company
and its Subsidiaries have taken reasonable security measures to protect the
secrecy, confidentiality and value of all of their intellectual
properties.
O. Insurance. The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries are
engaged, including, but not limited to, directors and officers insurance
coverage at least equal to the aggregate subscription amount under the
Transaction Documents. To the knowledge of the Company, such
insurance contracts and policies are accurate and complete. Neither
the Company nor any Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost.
P. Transactions
With Affiliates and Employees. Except as set forth in the SEC
Reports, none of the officers or directors of the Company and, to the knowledge
of the Company, none of the employees of the Company is presently a party to
any
transaction with the Company or any Subsidiary (other than for services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the
Company, any entity in which any officer, director, or any such employee has
a
substantial interest or is an officer, director, trustee or partner, other
than
(i) for payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company and (iii) for
other
employee benefits, including stock option agreements under any stock option
plan
of the Company.
X. Xxxxxxxx-Xxxxx. To
the Company’s knowledge, after due inquiry, the Company is in material
compliance with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 which are
applicable to it as of the date hereof and of the closing date of the
Placement.
R. Certain
Fees. Except as otherwise provided in this Agreement and except
for fees payable to Xxxxxxxx & Xxxxxxxx LLC, J & E Davy and ProSeed
Capital Holdings CVA pursuant to separate agreements therewith, no brokerage
or
finder’s fees or commissions are or will be payable by the Company to any
broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated
by
the Transaction Documents. The Purchasers shall have no obligation
with respect to any fees or with respect to any claims made by or on behalf
of
other Persons for fees of a type contemplated in this Section that may be due
in
connection with the transactions contemplated by the Transaction
Documents.
S. Trading
Market Rules. The issuance and sale of the Securities hereunder
does not contravene the rules and regulations of the Trading
Market.
T. Investment
Company. The Company is not, and is not an Affiliate of, and
immediately after receipt of payment for the Securities, will not be or be
an
Affiliate of, an “investment company” within the meaning of the Investment
Company Act of 1940, as amended. The Company shall conduct its
business in a manner so that it will not become subject to the Investment
Company Act.
U. Registration
Rights. Except as has been disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or any
Time of Sale Prospectus, except in connection with the Ester Acquisition and
related fees, and except the Neurostat Pharmaceuticals Inc. and Strategic
Pharmaceutical Solutions Warrants listed on Schedule B, no Person has any right
to cause the Company to effect the registration under the Securities Act of
any
securities of the Company.
V. Listing
and Maintenance Requirements. The Company’s Common Stock is
registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge is likely
to
have the effect of, terminating the registration of the Common Stock under
the
Exchange Act nor has the Company received any notification that the Commission
is contemplating terminating such registration. Except as has been
disclosed in the SEC Reports, the Registration Statement, the Base Prospectus,
the Prospectus Supplement or any Time of Sale Prospectus, the Company has not,
in the 12 months preceding the date hereof, received notice from any Trading
Market on which the Common Stock is or has been listed or quoted to the effect
that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market.
W. Application
of Takeover Protections. The Company and its Board of Directors
have taken all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision
under the Company’s Certificate of Incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable
to
the Purchasers as a result of the Purchasers and the Company fulfilling their
obligations or exercising their rights under the Transaction Documents,
including without limitation as a result of the Company’s issuance of the
Securities and the Purchasers’ ownership of the Securities.
X. Solvency. As
described in the Company’s press release (dated November 30) setting out the
Company’s third quarter financial results, at September 30, 2007 the Company had
cash of $20.7 million. Based on current business activities, the
Company forecasts having sufficient cash to fund the group’s operating
activities into September 2008. Based on the financial condition of
the Company as of the Closing Date after giving effect to the receipt by the
Company of the proceeds from the sale of the Securities hereunder, (i) the
Company’s fair saleable value of its assets exceeds the amount that will be
required to be paid on or in respect of the Company’s existing debts and other
liabilities (including known contingent liabilities but excluding contingent
liabilities relating to completed acquisitions including the acquisition of
Laxdale Limited, Ester Neurosciences Limited, the rights to an oral formulation
of apomorphine and the rights to a nanocrystal nasal formulation of lorazepam)
as they mature and (ii) the current cash flow of the Company, together with
the
proceeds the Company would receive, were it to liquidate all of its assets,
after taking into account all anticipated uses of the cash, would be sufficient
to pay all amounts on or in respect of its debt when such amounts are required
to be paid. The Company does not intend to incur debts beyond its
ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt). The
Company has no knowledge of any facts or circumstances which lead it to believe
that it will file for reorganization or liquidation under the bankruptcy or
reorganization laws of any jurisdiction within one year from the Closing
Date. The SEC Reports set forth as of the dates thereof all
outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. For the
purposes of this Agreement, “Indebtedness” shall mean (a) any liabilities for
borrowed money or amounts owed in excess of $50,000 (other than trade accounts
payable incurred in the ordinary course of business), (b) all guaranties,
endorsements and other contingent obligations in respect of Indebtedness of
others, whether or not the same are or should be reflected in the Company’s
balance sheet (or the notes thereto), except guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in
the
ordinary course of business; and (c) the present value of any lease payments
in
excess of $50,000 due under leases required to be capitalized in accordance
with
GAAP. Neither the Company nor any Subsidiary is in default with
respect to any Indebtedness.
Y. Tax
Status. Except for matters that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect, the
Company and each Subsidiary has filed all material, applicable income and
franchise tax returns and has paid or accrued all taxes shown as due thereon
(and other than those being contested in good faith and for which adequate
reserves have been provided), and the Company has no knowledge of a tax
deficiency which has been asserted or threatened against the Company or any
Subsidiary.
Z. Foreign
Corrupt Practices. Neither the Company, nor to the knowledge of
the Company, any agent or other person acting on behalf of the Company, has
(i)
directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company (or made by any person acting on its behalf
of
which the Company is aware) which is in violation of law, or (iv)
violated in any material respect any provision of the Foreign Corrupt Practices
Act of 1977, as amended.
AA. Accountants. The
Company’s accountants are PricewaterhouseCoopers LLP. To the
knowledge of the Company, such accountants, who the Company expects will express
their opinion with respect to the financial statements to be included in the
Company’s next Annual Report on Form 20-F, are a registered public accounting
firm as required by the Securities Act.
BB. Regulation
M Compliance. Except as has been disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or any
Time of Sale Prospectus, the Company has not, and to its knowledge no one acting
on its behalf has, in connection with the transactions contemplated by each
of
the Transaction Documents, (i) taken, directly or indirectly, any action
designed to cause or to result in the stabilization or manipulation of the
price
of any security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities (other than for the placement
agent’s placement of the Securities), or (iii) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
CC. Approvals. The
issuance and listing on the NASDAQ Capital Market of the Shares requires no
further approvals, including but not limited to, the approval of
shareholders.
DD. FINRA
Affiliations. There are no affiliations with any Financial
Industry Regulatory Authority (“FINRA”) member firm among the Company’s
officers, directors or, to the knowledge of the Company, any five percent (5%)
or greater stockholder of the Company.
IV. INDEMNIFICATION.
The Company agrees to the
indemnification and other agreements set forth in the Indemnification Provisions
(the “Indemnification”) attached hereto
as Addendum A, the
provisions of which are incorporated herein by reference and shall survive
the
termination or expiration of this Agreement.
V. ENGAGEMENT
TERM. R&R’s engagement hereunder will be for the period of 60
days. The engagement may be terminated by either the Company or
R&R at any time upon 10 days’ written notice, provided that the Company
shall not give any such notice for a period of 20 days after the date
hereof. Notwithstanding anything to the contrary contained herein,
the provisions concerning confidentiality, indemnification, contribution,
limitation on liability and the Company’s obligations to pay fees and reimburse
expenses contained herein and the Company’s obligations contained in the
Indemnification Provisions will survive any expiration or termination of this
Agreement. R&R agrees not to use any confidential information
concerning the Company provided to them by the Company for any purposes other
than those contemplated under this Agreement.
VI. R&R
INFORMATION. The Company agrees that any information or advice
rendered by R&R in connection with this engagement is for the confidential
use of the Company only in their evaluation of the Placement and, except as
otherwise required by law, regulation or court order, the Company will not
disclose or otherwise refer to the advice or information in any manner without
R&R’s prior written consent.
VII. NO
FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall
not be construed as creating rights enforceable by any person or entity not
a
party hereto, except those entitled hereto by virtue of the Indemnification
Provisions hereof. The Company acknowledges and agrees that R&R
is not and shall not be construed as a fiduciary of the Company and shall have
no duties or liabilities to the equity holders or the creditors of the Company
or any other person by virtue of this Agreement or the retention of R&R
hereunder, all of which are hereby expressly waived.
VIII. CLOSING. The
obligations of the Placement Agent and the Purchasers, and the closing of the
sale of the Securities hereunder are subject to the accuracy, when made and
on
the Closing Date, of the representations and warranties on the part of the
Company contained herein, to the accuracy of the statements of the Company
made
in any certificates pursuant to the provisions hereof, to the performance by
the
Company of their obligations hereunder, and to each of the following additional
terms and conditions:
A. No
stop
order suspending the effectiveness of the Registration Statement shall have
been
issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on
the
part of the Commission (to be included in the Registration Statement, the Base
Prospectus or the Prospectus Supplement or otherwise) shall have been complied
with to the reasonable satisfaction of the Placement Agent. Any
filings required to be made by the Company in connection with the
Placement shall have been timely filed with the Commission.
B. The
Placement Agent shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Prospectus Supplement or any amendment or
supplement thereto contains an untrue statement of a fact which, in a written
opinion of counsel for the Placement Agent (which opinion is provided to the
Company at the Company’s request), is material or omits to state any fact which,
in a written opinion of such counsel, is material and is required to be stated
therein or is necessary, in light of the circumstances under which they were
made, to make the statements therein not misleading.
C. All
corporate proceedings and other legal matters incident to the authorization,
form, execution, delivery and validity of each of this Agreement, the
Securities, the Registration Statement, the Base Prospectus and the Prospectus
Supplement and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall
have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
D. The
Placement Agent shall have received from outside counsel to the Company such
counsel’s written opinion, addressed to the Placement Agent and the Purchasers
dated as of the Closing Date, in form and substance reasonably satisfactory
to
the Placement Agent, and a “10b-5” statement from such counsel.
E. (i)
Neither the Company nor any of its Subsidiaries shall have sustained since
the
date of the latest audited financial statements included or incorporated by
reference in the Base Prospectus, any loss or interference with its business
from fire, explosion, flood, terrorist act or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth in or contemplated by the
Prospectus Supplement and (ii) since such date there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
Subsidiaries or any change, or any development involving a prospective change,
in or affecting the business, assets, financial position, or results of
operations of the Company and its Subsidiaries, otherwise than as set forth
in
or contemplated by the Prospectus Supplement, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of the Placement
Agent, so material and adverse as to make it impracticable or inadvisable to
proceed with the sale or delivery of the Securities on the terms and in the
manner contemplated by the Base Prospectus, the Time of Sale Prospectus, if
any,
and the Prospectus Supplement.
F. The
Common Stock is registered under the Exchange Act and, as of the Closing Date,
the Shares shall be listed and admitted and authorized for trading on the Nasdaq
Capital Market, and satisfactory evidence of such actions shall have been
provided to the Placement Agent. The Company shall have taken no
action designed to, or intended to have the effect of terminating the
registration of the Common Stock under the Exchange Act or delisting or
suspending from trading the Common Stock from the Nasdaq Capital Market,
provided that no representation is made with respect to the Company’s oral or
written communications with Nasdaq Capital Market, made in good faith, in
connection with the Company’s efforts to maintain its listing on the Nasdaq
Capital Market. Except as has been disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or any
Time of Sale Prospectus, the Company has not received any written information
suggesting that the Commission or the Nasdaq National Market is contemplating
terminating such registration or listing.
G. Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock
Exchange, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq
Capital Market or the American Stock Exchange or in the over-the-counter market,
or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum or maximum prices
or maximum ranges for prices shall have been established on any such exchange
or
such market by the Commission, by such exchange or by any other regulatory
body
or governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by federal or state authorities or a material disruption
has
occurred in commercial banking or securities settlement or clearance services
in
the United States, (iii) the United States shall have become engaged in
hostilities in which it is not currently engaged, the subject of an act of
terrorism, there shall have been an escalation in hostilities involving the
United States, or there shall have been a declaration of a national emergency
or
war by the United States, or (iv) there shall have occurred any other calamity
or crisis or any change in general economic, political or financial conditions
in the United States or elsewhere, if the effect of any such event in clause
(iii) or (iv) makes it, in the reasonable judgment of the Placement Agent,
impracticable or inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by the Base Prospectus
and the Prospectus Supplement.
H. No
action
shall have been taken and no statute, rule, regulation or order shall have
been
enacted, adopted or issued by any governmental agency or body which would,
as of
the Closing Date, prevent the issuance or sale of the Securities or materially
and adversely affect or potentially and adversely affect the business or
operations of the Company; and no injunction, restraining order or order of
any
other nature by any federal or state court of competent jurisdiction shall
have
been issued as of the Closing Date which would prevent the issuance or sale
of
the Securities or materially and adversely affect or potentially and adversely
affect the business or operations of the Company.
I. The
Company shall have prepared and filed with the Commission a Report of Foreign
Private Issuer on Form 6-K with respect to the Placement, including as an
exhibit thereto this Agreement.
J. The
Company shall have entered into subscription agreements with each of the
Purchasers and such agreements shall be in full force and effect and shall
contain representations and warranties of the Company as agreed between the
Company and the Purchasers.
K. FINRA
shall have raised no objection to the fairness and reasonableness of the terms
and arrangements of this Agreement. In addition, the Company shall,
if requested by the Placement Agent, make or authorize Placement Agent’s counsel
to make on the Company’s behalf, an Issuer Filing with the Financial Industry
Regulatory Authority, Inc. Corporate Financing Department pursuant to NASD
Rule
2710 with respect to the Registration Statement and pay all filing fees required
in connection therewith.
L. Prior
to
the Closing Date, the Company shall have furnished to the Placement Agent such
further information, certificates and documents as the Placement Agent may
reasonably request.
M. The
Company and the Placement Agent shall consult with each other in issuing any
other press releases with respect to the purchase and sale of the Securities
hereunder, and neither the Company nor the Placement Agent shall issue any
such
press release or otherwise make any such public statement without the prior
consent of the Company, with respect to any press release of the Placement
Agent, or without the prior consent of the Placement Agent, with respect to
any
press release of the Company, which consent shall not unreasonably be withheld
or delayed, except if such disclosure is required by law, in which case the
disclosing party shall promptly provide the other party with prior (where
feasible) notice of such public statement or communication; provided,
that no such consent shall be required for any press release in which
the
description of the purchase and sale of the Securities is limited to those
terms
as are already in the public domain.
N. All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Placement Agent.
IX. GOVERNING
LAW; ASSIGNMENT. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York applicable
to
agreements made and to be performed entirely in such State. This
Agreement may not be assigned by either party without the prior written consent
of the other party. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, and their respective successors and permitted
assigns. Any right to trial by jury with respect to any dispute arising under
this Agreement or any transaction or conduct in connection herewith is
waived. Any dispute arising under this Agreement may be brought into
the courts of the State of New York or into the Federal Court located in New
York, New York and, by execution and delivery of this Agreement, the Company
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of aforesaid courts. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by delivering a
copy
thereof via overnight delivery (with evidence of delivery) to such party at
the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. If either party
shall
commence an action or proceeding to enforce any provisions of a Transaction
Document, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
action or proceeding.
X. ENTIRE
AGREEMENT/MISC. This Agreement (including the attached
Indemnification Provisions) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof. If any
provision of this Agreement is determined to be invalid or unenforceable in
any
respect, such determination will not affect such provision in any other respect
or any other provision of this Agreement, which will remain in full force and
effect. This Agreement may not be amended or otherwise modified or
waived except by an instrument in writing signed by both R&R and the
Company. The representations, warranties, agreements and covenants
contained herein shall survive the closing of the Placement and delivery and/or
exercise of the Securities, as applicable. This Agreement may be
executed in two or more counterparts, all of which when taken together shall
be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party,
it
being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or a .pdf format file, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.
XI. NOTICES. Any
and all notices or other communications or deliveries required or permitted
to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified
on
the signature pages attached hereto prior to 6:30 p.m. (New York City time)
on a
business day, (b) the next business day after the date of transmission, if
such
notice or communication is delivered via facsimile at the facsimile number
on
the signature pages attached hereto on a day that is not a business day or
later
than 6:30 p.m. (New York City time) on any business day, (c) the business day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice
is
required to be given. The address for such notices and communications
shall be as set forth on the signature pages hereto.
[Signature
Page Follows]
Please
confirm that the foregoing correctly sets forth our agreement by signing and
returning to R&R the enclosed copy of this Agreement.
Very
truly
yours,
XXXXXX
&
XXXXXXX,
LLC
By: /s/
Xxxx
Xxxxx
Name: Xxxx Xxxxx
Title: Senior Managing Director
Address
for notice:
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX, 00000
Accepted
and Agreed to as of
the
date
first written above:
AMARIN
CORPORATION PLC
By: Xxxx
Xxxxx
Name:/s/
Xxxx Xxxxx
Title:
President/CFO
Address
for notice:
Amarin
Corporation plc
0
Xxxxxx
Xxxxxx
Xxxxxx
X0X 0XX, Xxxxxxx
ADDENDUM
A
INDEMNIFICATION
PROVISIONS
In
connection with the engagement of Xxxxxx & Xxxxxxx, LLC (“R&R”)
by Amarin Corporation plc (the “Company”) pursuant to a letter agreement
dated December 3, 2007, between the Company and R&R, as it may be amended
from time to time in writing (the “Agreement”), the Company hereby agrees
as follows:
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1.
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(A) To
the extent permitted by law, the Company will indemnify R&R and its
affiliates, and their respective stockholders, directors, officers,
employees and controlling persons (within the meaning of Section
15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934) against all losses, claims, damages, expenses
and
liabilities, as the same are incurred (including the reasonable fees
and
expenses of counsel), relating to or arising out of its activities
hereunder or pursuant to the Agreement, except to the extent that
any
losses, claims, damages, expenses or liabilities (or actions in respect
thereof) are found in a final judgment (not subject to appeal) by
a court
of law to have resulted primarily and directly from R&R’s bad faith,
willful misconduct or gross negligence in performing the services
described herein ; provided that the foregoing indemnity agreement
shall
not apply to any loss, claim, damage, expense or liability arising
out of
or based upon any untrue statement or alleged untrue statement or
omission
or alleged omission made in reliance upon and in conformity with
written
information furnished to the Company by the R&R expressly for use in
the Registration Statement, Base Prospectus, the Prospectus Supplement
or
the Time of Sale Prospectus.
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(B) To
the extent permitted by law, R&R and its affiliates will indemnify, and will
cause any sub-placement agent or selected dealer to indemnify, the Company
and
its stockholders, directors, officers, employees and controlling persons (within
the meaning of Section 15 of the Securities Act of 1933, as amended, or Section
20 of the Securities Exchange Act of 1934) against all losses, claims, damages,
expenses and liabilities, as the same are incurred (including the reasonable
fees and expenses of counsel), relating to or arising out of its activities
hereunder or pursuant to the Agreement insofar as such loss, claim, damage,
expense or liability arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity
with
information concerning the Placement Agent furnished in writing by or on behalf
of the Placement Agent to the Company expressly for use in any amendment to
the
Registration Statement or the Prospectus Supplement or any Time of Sale
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated in such Registration Statement, the Disclosure Package or such Prospectus
or necessary to make such information not misleading.
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2.
|
Promptly
after receipt by an indemnified party of notice of any claim or the
commencement of any action or proceeding with respect to which such
indemnified party is entitled to indemnity hereunder, such indemnified
party will notify the indemnifying party in writing of such claim
or of
the commencement of such action or proceeding, and the indemnifying
party
will assume the defense of such action or proceeding and will employ
counsel reasonably satisfactory to an indemnified party and will
pay the
reasonable fees and expenses of such counsel. Notwithstanding
the preceding sentence, such indemnified party will be entitled to
employ
counsel separate from counsel for the Company and from any other
party in
such action if counsel for an indemnified party reasonably determines
that
it would be inappropriate under the applicable rules of professional
responsibility for the same counsel to represent both the Company
and
R&R. In such event, the reasonable fees and disbursements
of no more than one such separate counsel will be paid by the indemnifying
party. The indemnifying party will have the exclusive right to
settle the claim or proceeding, provided that the indemnifying party
will
not settle any such claim, action or proceeding without the prior
written
consent of the indemnified party, which will not be unreasonably
withheld.
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3.
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The
indemnifying party agrees to notify the indemnified party promptly
of the
assertion against it of any claim or the commencement of any action
or
proceeding relating to a transaction contemplated by the
Agreement.
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4.
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If
for any reason the foregoing indemnity is unavailable to an indemnified
party or insufficient to hold such indemnified party harmless (other
than
as a result of the limitations thereon set forth in paragraph 1 above),
then the indemnifying party shall contribute to the amount paid or
payable
by such indemnified party as a result of such losses, claims, damages
or
liabilities in such proportion as is appropriate to reflect not only
the
relative benefits received by the indemnified party on the one hand
and by
the indemnified on the other, but also the relative fault of the
indemnifying party on the one hand and the indemnified party on the
other
that resulted in such losses, claims, damages or liabilities, as
well as
any relevant equitable considerations. The amounts paid or
payable by a party in respect of losses, claims, damages and liabilities
referred to above shall be deemed to include any legal or other fees
and
expenses incurred in defending any litigation, proceeding or other
action
or claim. Notwithstanding the provisions hereof, R&R’s
share of the liability hereunder shall not be in excess of the amount
of
fees actually received, or to be received, by R&R under the Agreement
(excluding any amounts received as reimbursement of expenses incurred
by
R&R).
|
|
5.
|
These
Indemnification Provisions shall remain in full force and effect
whether
or not the transaction contemplated by the Agreement is completed
and
shall survive the termination of the Agreement, and shall be in addition
to any liability that the indemnifying any might otherwise have to
any
indemnified party under the Agreement or
otherwise.
|
XXXXXX
&
XXXXXXX,
LLC
By: /s/ Xxxx
Xxxxx
Name: Xxxx Xxxxx
Title: Senior Managing Director
Accepted
and Agreed to as of
the
date
first written above:
AMARIN
CORPORATION PLC
By: /s/
Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title:
President, CFO
SCHEDULE
A
Roswell
Fort
Xxxxx
Midsummer
Vision
Xxxxxx
Centercourt
Southridge
Special
Situation
SCO
Potomac
Perceptive
Micro
Capital
Xxxxxxxx
Xxxxxxx
SCHEDULE
B
|
1.
|
175,000
Warrants were granted to Neurostat Pharmaceuticals Inc. with an exercise
price of $1.79 per ordinary share, subject to adjustment pursuant
to the
terms of the Warrants.
|
|
2.
|
10,000
Warrants were approved to Strategic Pharmaceutical Solutions but
the exact
terms have not yet been finalized for
issuance.
|
