Exhibit 2.7
EXECUTION COPY
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT AND WAIVER
Dated January 27, 2003
By and Among
AMARIN CORPORATION PLC,
ELAN INTERNATIONAL SERVICES, LTD.
AND
MONKSLAND HOLDINGS B.V.
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT AND WAIVER
THIS AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT AND WAIVER
(this "Amendment") is made on the 27th day of January, 2003 by and among
Amarin Corporation plc, a company organized under the laws of England (the
"Company"), Elan International Services, Ltd., a Bermuda exempted company
("EIS"), and Monksland Holding B.V., a company organized under the laws of
the Netherlands ("Monksland").
RECITALS
WHEREAS, the Company (under its previous name Ethical Holdings plc)
and Monksland are parties to that certain Registration Rights Agreement dated as
of October 21, 1998 (the "Agreement");
WHEREAS, concurrently herewith, the Company has requested that
Monksland and EIS sell, and Monksland and EIS may agree to sell, certain
Ordinary Shares (as defined in the Agreement) owned by them to unaffiliated
third parties (the "New Investors");
WHEREAS, the Company will benefit from any such transfer of Ordinary
Shares from Monksland and EIS to the New Investors;
WHEREAS, Monksland and the Company wish to amend the Agreement to
provided, among other things, that all of the Ordinary Shares and ADSs owned by
EIS and Monksland (including any owned by virtue of the conversion of
Convertible Preference Shares) will be "Registrable Securities" (as defined in
the Agreement) and to waive any other registration rights they may have against
the Company other than pursuant to this Agreement, with the intent and effect
that EIS shall with effect from the date hereof become a party to the Agreement
(as hereby amended); and
WHEREAS, Section 9(c) of the Agreement provides that the Agreement
may be amended with the written consent of the Holders of a majority of the
Registrable Securities (as such term is defined in the Agreement) then
outstanding.
AGREEMENT
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Amendments.
(a) The definitions of "Company" and "Holders" in Section 1 of the
Agreement are deleted in their entirety and replaced as follows:
"`Company' shall mean Amarin Corporation plc, a company incorporated
in England and Wales with registered number 2353920, and any successor company."
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"`Holders' shall mean any person owning or having the right to
acquire Registrable Securities, but shall not include any purchaser named in
that certain Stock Purchase Agreement between EIS and the purchasers named
therein which agreement is entered into in connection with the Company's private
placement of Ordinary Shares as described in the Company's Amended Confidential
Private Placement Memorandum, dated December 10, 2002, as the same may be
amended or supplemented."
(b) A new definition is added to Section 1 of the Agreement as follows:
"`EIS' shall mean Elan International Services, Ltd., a Bermuda
exempted company."
(c) The definition of "Registrable Securities" in Section 1 of the
Agreement is deleted in its entirety and replaced as follows:
"`Registrable Securities' shall mean (i) the 700,000 Ordinary Shares
acquired by Monksland pursuant to the share purchase agreement dated
August 31, 1995; (ii) the 40,000 ADSs acquired by Monksland in an open
market purchase in August 1995; (iii) the 500,000 ADSs acquired by
Monksland in an open market purchase in January 1999; (iv) the 4,000,000
Ordinary Shares issuable upon conversion of the Debenture purchased by EIS
(as assignee of Monksland) pursuant to the Convertible Term Loan
Agreement; and (v) the Ordinary Shares previously received or to be
received upon conversion of the 4,129,819 Convertible Preference Shares of
the Company purchased by EIS (as assignee of Monksland) pursuant to the
Second Subscription Agreement dated as of December 30, 1999 including the
conversion of any part thereof (in the case of each of clauses (i) through
(v) as such Ordinary Shares, Convertible Preference Shares or ADSs have
been or may be adjusted for consolidations and/or stock splits and
including any stock dividends or similar distributions on any such
Ordinary Shares, Convertible Preference Shares or ADSs), until, in the
case of any such ADS or Ordinary Share, (A) it has been registered
pursuant to the Securities Act and the Registration Statement covering
such ADS or Ordinary Share remains effective or such ADS or Ordinary Share
has been disposed of pursuant to a Registration Statement covering it;
provided, that any Ordinary Share and ADS not yet sold under the
registration statement to be filed in connection with the Company's
private placement of Ordinary Shares as described in the Company's Amended
Confidential Private Placement Memorandum, dated December 10, 2002, as the
same may be amended or supplemented, shall be "Registrable Securities,"
(B) subject to Section 7 hereof, it is eligible for resale by the Holder
pursuant to Rule 144, (C) subject to Section 8 hereof, it shall have been
otherwise transferred and a new certificate or certificates for such
security not bearing a legend restricting further transfer shall have been
delivered by the Company or (D) it ceases to be outstanding."
(d) Unless the context requires otherwise, all references in the Agreement
to the "Purchaser" shall be deemed to mean Monksland, EIS and each other Holder.
(e) Section 2(a) of the Agreement is deleted in its entirety and replaced
with the following:
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"(a) Requests for Registration. At any time after October 1, 2003,
any Holder or Holders who collectively hold Registrable Securities
representing at least 5% of the Registrable Securities then outstanding
shall have the right (subject to the limitations set forth below),
exercisable by written notice to the Company (each, a "Registration
Request"), to have the Company prepare and file with the Commission a
Registration Statement under the Securities Act covering the Registrable
Securities that are the subject of such Registration Request (each, a
"Demand Registration"). Within 10 days after receipt of any such
Registration Request, the Company will give written notice of such
Registration Request to all other Holders of Registrable Securities. The
Company shall include such other Holders' Registrable Securities in such
Registration Statement if they have responded affirmatively within 10 days
after the receipt of the Company's notice. The Company shall, within 60
days of receiving a Demand Request, file a Registration Statement with the
SEC covering the offering and sale of the Registrable Securities which the
Holders have requested to be included in such Registration Statement;
provided, that for so long as the registration statement to be filed in
connection with the Company's private placement of Ordinary Shares as
described in the Company's Amended Confidential Private Placement
Memorandum, dated December 10, 2002, as the same may be amended or
supplemented, has been filed and has become and remains effective (the
"Effectiveness Condition"), the Company shall not be required to file a
Registration Statement pursuant to this Section 2(a) prior to January 1,
2004. The Holders shall be permitted, in the aggregate amongst all
Holders, two Demand Registrations hereunder. A Registration Request under
this Section 2(a) will not count as a Demand Registration until the
registration statement has become effective. If the Holders of a majority
of the Registrable Securities included in a Registration Statement filed
pursuant to this Section 2(a) so elect after determining in good faith
that an underwritten offering is in such Holders' best economic interest,
the offering of Registrable Securities pursuant to the Registration
Statement shall be affected in the form of an underwritten offering;
provided, that at least 1,000,000 Registrable Securities (as adjusted for
any stock split or similar action occurring after the date of this
Amendment) shall be included in such offering; provided, further, that for
so long as the Effectiveness Condition is met, the Holders may not
commence any underwritten offering pursuant to this Section 2(a) prior to
January 1, 2004."
(f) The second subsection 2(b) is redesignated "2(c)" and new subsections
2(d) though 2(g) are added to Section 2 of the Agreement as follows:
"(d) Priority on Demand Registrations. If a Demand Registration is
an underwritten offering and the managing underwriters advise the Company
in writing that in their opinion the number of Registrable Securities and,
if permitted hereunder, other securities requested to be included in such
offering, exceeds the number of Registrable Securities and other
securities, if any, which can be sold in such offering without adversely
affecting the marketability of the offering, the Company will include in
such registration:
(i) first, the Registrable Securities requested to be included
in such registration by the Holders (or, if necessary, such
Registrable Securities pro rata
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among the Holders thereof based upon the number of Registrable
Securities requested to be included in such registration by each
such Holder or such other arrangement agreed to among the Holders);
and
(ii) thereafter, other securities requested to be included in
such registration, as determined by the Company.
The Holders of any Registrable Securities to be included in such an
underwritten offering shall enter into an underwriting agreement (which
shall be in customary form, may include agreements as to indemnification
and contribution and shall provide that the representations and warranties
by the Company to and for the benefit of such underwriters, shall also be
made to and for the benefit of such Holders).
(e) Right to Piggyback. If at any time the Company shall propose to
register any ADSs or Ordinary Shares under the Securities Act (other than
in a registration statement (x) relating solely to sales of securities to
participants in a Company dividend reinvestment plan, (y) on Form F-4 or
any successor form in connection with an acquisition or exchange offer or
(z) relating solely to an offering of securities to the existing
shareholders or employees of the Company), the Company (i) will give
prompt written notice to all Holders of Registrable Securities of its
intention to effect such a registration and (ii) subject to Section 2(e)
and the other terms of this Agreement, will include in such registration
all Registrable Securities which are permitted under applicable securities
laws to be included in the form of Registration Statement selected by the
Company and with respect to which the Company has received written
requests for inclusion therein within 10 days after the receipt of the
Company's notice (each, a "Piggyback Registration"). The Holders will be
permitted to withdraw all or any part of the Registrable Securities from a
Piggyback Registration at any time prior to the effective date of such
Piggyback Registration.
(f) Priority on Piggyback Registrations. If a Piggyback Registration
is to be an underwritten offering, and the managing underwriters advise
the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can
be sold in such offering without adversely affecting the marketability of
the offering, the Company will include in such registration:
(i) first, the securities the Company proposes to sell for its
own account;
(ii) second, the securities to be included for the account of
any shareholder (other than the Holders) pursuant to any demand or
similar registration right;
(iii) third, the Registrable Securities requested to be
included in such registration by the Holders and any securities
requested to be included in such registration by any other person
pursuant to a piggyback registration request, other than persons
having a lower priority of registration than the Holders, pro rata
among the Holders of such Registrable Securities and such other
persons, on the basis of the number of securities requested to be
included in such registration by each of such Holders and such other
persons; and
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(iv) thereafter, other securities requested to be included in
such registration, as determined by the Company.
The Holders of any Registrable Securities to be included in an
underwritten offering shall enter into an underwriting agreement (which
shall be in customary form, may include agreements as to indemnification
and contribution, and shall provide that the representations and
warranties by the Company to and for the benefit of such underwriters,
shall also be made to and for the benefit of such Holders).
(g) Right to Terminate Registration. If at any time after giving
written notice of its intention to register any of its securities or any
securities of any other holder registering securities other than the
Registrable Securities as set forth in Section 2(e) and prior to the
effective date of the Registration Statement filed in connection with such
registration, the Company shall determine for any reason not to register
such securities, the Company may, at its election, give written notice of
such determination to each Holder of Registrable Securities and thereupon
be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith as provided herein). (g) The
last sentence of Section 4(a) of the Agreement is deleted in its entirety
and replaced with the following:
"The Company shall not file a Registration Statement under Section
2(a) hereof or any such Prospectus or any amendments or supplements
thereto to which the Holders of a majority of the Registrable Securities
shall reasonably object on a timely basis and the Company shall not file a
Registration Statement under Section 2 hereof or any such Prospectus or
any amendment or supplement thereto containing any statement about a
Holder to which such Holder shall reasonably object on a timely basis."
(h) A new Section 4(n) of the Agreement is added to the Agreement as
follows:
"(n) In each underwritten offering effected pursuant to Section 2,
the Company shall use commercially reasonable efforts to cause its senior
management to assist in customary selling efforts relating to the
Registrable Securities included in such underwritten offering as
reasonably requested by the managing underwriter, including, but not
limited to, participating in usual and customary "roadshows" in connection
with such underwritten offering."
(i) Section 5 of the Agreement is deleted in its entirety and replaced
with the following:
"5. Registration Expenses
The Company shall bear all expenses incident to the Company's
performance of or compliance with this Agreement, including all
registration and filing fees and expenses of compliance with securities or
blue sky laws, including without limitation, reasonable fees and
disbursements of counsel in connection with blue sky qualifications of
Registrable Securities, printing expenses, the fees and expenses incurred
in connection
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with the listing of the securities to registered on any securities
exchange on which such securities are listed (if any), fees and
disbursements of counsel for the Company and the Company's independent
certified public accountants (including the expenses of any special audit
conducted at the Company's option or "cold comfort" letters required by or
incident to such performance), fees of the depositary with respect to any
exchange of Ordinary Shares for ADSs by any Holder and any out-of-pocket
expenses of the Company and management of the Company in connection with
any "roadshow." Notwithstanding anything in this Section 5 to the
contrary, the Company shall not be required to bear the expense of any
underwriting discounts or commissions or brokerage commissions or
reimburseable expenses of the underwriter, in each case, attributable to
the sale of the Registrable Securities or any out-of-pocket expenses of
the Holders, including travel costs (unless such travel costs are incurred
in connection with travel requested by the Company), or the costs of any
counsel or any other advisers engaged by the Holders to represent or
advise them in connection with the transactions contemplated by this
Agreement."
(j) Section 8 of the Agreement is amended by adding a third paragraph as
follows:
"Notwithstanding the first paragraph of this Section 8, the
investment banker or investment bankers and manager or managers that will
manage an underwritten offering pursuant to a Piggyback Registration will
be selected by the Company after consultation with the Holders and shall
be reasonably acceptable to the Holders of a majority of the Registrable
Securities included in such offering."
(k) Clause (i) of Section 9(d) of the Agreement is deleted in its entirety
and replaced with the following:
"(i) If to Monksland, to it at
Monksland Holdings B.V.
Rivierstaete Office Building - 6th Floor
Amsteldijk 166
1079 LH Amsterdam
The Netherlands
Attention: Xxxxxx Xxxxx/Xxxxxxxx Stijger
Fax: x00 00 000 0000
If to EIS, to it at:
c/o Elan International Services Ltd.
000 Xx. Xxxxx Xxxxx
Xxxxxx,
Xxxxxx XX00
Bermuda
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Attention: Secretary
Fax: x0 000 000 0000
with a copy (in the case of each of Monksland and EIS) to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq."
(ii) If to the Company to:
Amarin Corporation plc
0 Xxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
Facsimile: x00 00 0000 0000
Attention: General Counsel & Company Secretary
With a copy to:
Xxxxxxxxx & Xxxxxxx
000 Xxxxxx
Xxxxxx XX0X 0XX
Facsimile: x00 00 0000 0000
Attention: Xxxxx Xxxxx, Esq."
(l) Section 9(e) of the Agreement is deleted in its entirety and replaced
with the following:
"(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of
each of the parties hereto. The Company may not assign its rights or
obligations hereunder without the prior written consent of each of the
parties hereto. The rights granted to any Holder under this Agreement may
be assigned to any person in connection with any transfer or assignment of
Registrable Securities by a Holder; provided that (a) such transfer is
otherwise in accordance with applicable securities laws and any agreement
with the Company to which the Holder is a party and (b) if not already a
party hereto, the assignee or transferee agrees in writing prior to such
transfer to be bound by the provisions of this Agreement; and provided
further that the Holder shall not be entitled to assign any of its rights
or obligations under this Agreement to any purchaser named in that certain
Stock Purchase Agreement between EIS and the purchasers named therein in
connection with the Company's private placement of Ordinary Shares as
described in the Company's Amended Confidential Private Placement
Memorandum, dated December 10, 2002, as the same may be amended or
supplemented.
2. Waiver of Other Registration Rights. Each of EIS and Monksland hereby
irrevocably waive any other registration rights they may have (other than the
rights granted to EIS and Monksland with respect to the registration statement
to be filed by the Company in connection with the Company's private placement of
Ordinary Shares as described in the Company's Amended Confidential Private
Placement Memorandum, dated December 10, 2002, as the same may be amended or
supplemented) including pursuant to the registration rights agreement dated as
of August 31, 1995 and the Second Subscription Agreement dated as of December
30, 1999.
3. Effect of Prior Agreement. Except as set forth herein, the Agreement shall
remain in full force and effect. The Agreement and this Amendment shall be read
and construed as one agreement. If any of the terms of the Agreement shall
conflict with any of the terms of this Amendment, the terms of this Amendment
shall control.
4. Acknowledgment by EIS and Monksland. Each of EIS and Monksland hereby consent
to the registration rights granted by the Company to the investors in connection
with the Company's private placement of Ordinary Shares as described in the
Company's Amended Confidential Private Placement Memorandum, dated December 10,
2002, as the same may be amended or
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supplemented and any shares purchased by such investors from EIS(provided that
EIS and Monksland do not consent to any increase in the registration rights
beyond those described in such Amended Confidential Private Placement Memorandum
as of the date hereof except that such registration statement may remain
effective with respect to such investors for up to two years from the date it
becomes effective).
5. Agreement by the Company. The Company hereby agrees (i) to include all of the
Registrable Securities in the registration statement filed in connection with
the Company's private placement of Ordinary Shares as described in the Company's
Amended Confidential Private Placement Memorandum, dated December 10, 2002, as
the same may be amended or supplemented; (ii) to file such registration
statement with the Securities and Exchange Commission no later than April 24,
2003; (iii) to use reasonable efforts to cause such registration statement to
become effective no later than June 24, 2003; and (iv) to keep such registration
statement effective until the earlier of (x) two years from the date such
registration statement becomes effective and (y) the date on which all
Registrable Securities of EIS and Monksland have either been sold pursuant to
such registration statement or registered pursuant to Section 2(a) hereof.
6. Successors and Assigns. The terms and conditions of this Amendment shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Amendment, express or implied, is
intended to confer upon any party, other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Amendment, except as expressly provided
in this Amendment.
7. Governing Law. This Amendment shall be governed by and construed under the
laws of the State of New York, as applied to contracts made and performed within
the State of New York, without regard to principles of conflicts of law.
8. Titles and Subtitles. The titles and subtitles used in this Amendment are
used for convenience only and are not to be considered in construing or
interpreting this Amendment.
9. Counterparts. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first above written.
AMARIN CORPORATION PLC
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
MONKSLAND HOLDINGS BV
By: /s/ Xxxxxx Xxxxx and Klass Xxx Xxxxxxx
Name: Xxxxxx Xxxxx and Klass Xxx Xxxxxxx
Title: Managing Directors
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
