Exhibit 2.11
EXHIBIT A
Form of Subscription Agreement and Regulation D Qualification Statement
AMARIN CORPORATION PLC
SUBSCRIPTION AGREEMENT
Amarin Corporation plc
0 Xxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
Gentlemen:
Pursuant to the terms of the offer contained in the Amended Confidential Private
Placement Memorandum, dated December 10, 2002 (the "Memorandum"), the
undersigned (the "Investor") hereby tenders to Amarin Corporation plc, a public
limited company registered in England and Wales with its registered office at
the above address (the "Company"), this subscription for, and offers to purchase
the number of ordinary shares of Pound Sterling1.00 each in the capital of the
Company as will equal the aggregate purchase price set forth on the signature
page hereto, rounded down to the nearest whole share (the "Securities"), at the
per share purchase price determined in accordance with the Memorandum, namely at
a price per share equal to 90% of the average closing prices of the Company's
American Depositary Shares on the Nasdaq National Market over the five trading
days ending on the trading day immediately prior the Closing Date (as defined in
the Memorandum).
In order to induce the Company to accept this subscription, the Investor
represents, warrants to, and covenants with, the Company, as follows:
1. Accredited Investor. The Investor is an "accredited investor," as
such term is defined in Section 501(a) of Regulation D of the Rules and
Regulations promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), under one or more of the categories set forth on the attached
Annex 1 "Regulation D Qualification Statement."
2. Purchase For Own Account. The Investor is purchasing the Securities
solely for investment purposes, for the Investor's own account, not as a nominee
or agent, and not with a view to the resale or distribution of any Securities,
except in accordance with US securities laws.
3. Private Offering. The Investor understands that (A) the Securities
have not been registered under the Securities Act or the securities laws of any
state or other jurisdiction in reliance upon exemptions, including an exemption
pursuant to Rule 506 under the Act, from such registration
requirements for non-public offerings; (B) the Securities may not be re-offered,
resold, pledged or otherwise transferred unless they have been first registered
under the Act and all applicable state securities laws, or unless exemptions
from such registration provisions are available with respect to said resale or
transfer; and (C) the Company is under no obligation to register the Securities
under the Act or any state securities laws, or to take any action to make any
exemption from any such registration provisions available except as set out in
the Registration Rights Agreement, the form of which is set out as Exhibit B to
the Memorandum (the "Registration Rights Agreement").
4. Transfer Restrictions. The Investor understands and agrees that each
certificate or other document evidencing any of the Securities shall be endorsed
with a legend in substantially the form set forth below as well as any other
legends required by applicable law, and the Investor covenants that the Investor
shall not transfer the Securities represented by any such certificate without
complying with the restrictions on transfer described in the legends endorsed on
such certificate:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED ("SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER ANY
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
REGISTERED OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS OR
(B) EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS
ARE AVAILABLE. AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE
SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO
REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED FOR SUCH TRANSFER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, THE
SECURITIES MAY NOT BE DEPOSITED INTO ANY DEPOSITARY RECEIPT FACILITY
IN RESPECT OF THE SECURITIES ESTABLISHED UNLESS AND UNTIL SUCH TIME
AS A REGISTRATION STATEMENT IS IN EFFECT AS TO SUCH SECURITIES UNDER
THE SECURITIES ACT OR UNLESS THE OFFER AND SALE OF SUCH SECURITIES
IS EXEMPT FROM REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES
ACT.
5. Investor Status.
(a) If the Investor is a corporation, partnership or other entity:
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(i) it was not organized or reorganized for the purpose of
purchasing the Securities, and
(ii) it is authorized, empowered and qualified to execute this
Subscription Agreement and to make the commitment as
herein contemplated.
(b) If the Investor is an individual, the Investor is 21 years of
age or older.
6. Investor's Business Experience. The Investor has such knowledge and
experience in financial and business matters that the Investor is capable of
evaluating the merits and risks of the investment in the Securities and the
Investor has made its or his own investment decision regarding the Securities
based on the Investor's own knowledge and investigation of the Company and the
Securities.
7. Availability of Information. The Investor acknowledges that all
documents, records and books pertaining to the investment in the Company and
requested by the Investor have been made available or delivered to the Investor.
8. Opportunity to Ask Questions. The Investor has (a) been offered the
opportunity to ask questions of and receive answers from the Company, or a
person or persons acting on behalf of the Company, concerning the terms and
conditions of the offering and the business (both current and proposed) of the
Company, (b) been furnished all other materials which the Investor considered
relevant to an investment in the Securities and (c) been given the opportunity
to perform due diligence. The Investor acknowledges that all such questions, if
any, have been answered, and all due diligence (if any) has been performed, to
the full satisfaction of the Investor.
9. Discussion with Counsel. The Investor has read this Subscription
Agreement and, to the extent the Investor believed necessary, has discussed the
representations, warranties and agreements that the undersigned makes by signing
these documents and the applicable limitations upon the Investor's resale of the
Securities with its counsel.
10. Private Placement Memorandum. The Investor has received and
carefully reviewed the Memorandum and, to the extent the Investor deems
appropriate, has discussed the Memorandum with representatives of the Company.
The Investor is also aware of and acknowledges the following:
(a) that the purchase of the Securities is a speculative
investment that involves a high degree of risk of loss by the Investor of
his or its entire investment in the Company;
(b) that there are substantial restrictions on the transferability
of the Securities, there will be no public market for the Securities and
the Investor may be required to bear the financial risks of this investment
for an indefinite period of time;
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(c) that no Federal or state agency has made any finding or
determination regarding the fairness of this offering for investment, or
any recommendation or endorsement of the Securities;
(d) that neither the officers, directors, agents, affiliates or
employees of the Company, nor any other person, has expressly or by
implication, made any representation or warranty concerning the Company
other than as set forth in the Memorandum ; and
(e) that the past performance or experience of the Company, the
Company's officers, directors, agents, or employees, will not in any way
indicate or predict the results of the ownership of Securities or of the
Company's activities.
11. Confidentiality. The Investor has not reproduced, duplicated or
delivered the Memorandum, the Registration Rights Agreement or this Subscription
Agreement to any person other than its investment and legal advisors in
connection with the investment.
12. Investor Qualification. The Regulation D Qualification Statement
being delivered by the Investor to the Company simultaneously herewith is true,
complete and correct in all material respects; and the Investor understands that
the Company has determined that the exemption from the registration provisions
of the Act, which is based upon non-public offerings, is applicable to the offer
and sale of the Securities, based, in part, upon the representations, warranties
and agreements made by the Investor herein and in such Regulation D
Qualification Statement.
13. Authority; Enforceability. The execution, delivery and performance
by the Investor of this Subscription Agreement and the Registration Rights
Agreement are within the powers of the Investor, have been duly authorized and
will not constitute or result in a breach or default under or conflict with any
order, ruling or regulation of any court or other tribunal or of any
governmental commission or agency, or any agreement or other undertaking, to
which the Investor is a party or by which the Investor is bound, and, if the
Investor is not an individual, will not violate any provisions of the
incorporation papers, by-laws, indenture of trust or partnership agreement, as
may be applicable, of the Investor. Each of this Subscription Agreement and the
Registration Rights Agreement constitutes a legal, valid and binding obligation
of the Investor, enforceable in accordance with its terms.
14. Obligations of the Investor and the Company. The Investor
understands and agrees that (i) the Company's obligations under this
Subscription Agreement are not binding upon the Company until the Company
accepts the Investor's subscription, which acceptance is at the sole discretion
of the Company and is to be evidenced by the Company's execution of this
Subscription Agreement where indicated; and (ii) the Company may, in its sole
discretion, reject this subscription in whole or in part and reduce this
subscription in any amount and to any extent, whether or not pro rata reductions
are made to any other Investor's subscription.
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15. Indemnification. The undersigned agrees to indemnify the Company
and its officers and directors and to hold them harmless from and against any
and all losses, damages, liabilities, costs and expenses they may sustain or
incur in connection with the breach by the undersigned of any representation,
warranty or covenant made by the Investor.
16. Updates of Information. The Investor agrees to advise the Company
promptly of any changes or inaccuracies in the information provided to the
Company that may occur prior to the termination of the offering and to furnish
supplementary information as may be appropriate.
17. No Assignment. Neither this Subscription Agreement nor any of the
rights or obligations of the Investor hereunder may be transferred or assigned
by the Investor.
18. General. This Subscription Agreement (i) may only be modified by a
written instrument executed by the Investor and the Company; (ii) sets forth the
entire agreement of the Investor and the Company with respect to the subject
matter hereof; (iii) supersedes all prior communications between the Investor
and the Company, whether oral or written; (iv) shall be governed by the laws of
the State of New York applicable to contracts made and to be wholly performed
therein; and (v) shall inure to the benefit of, and be binding upon the Company
and the Investor and their respective heirs, legal representatives, successors
and assigns. Unless the context otherwise requires, all personal pronouns used
in this Subscription Agreement, whether in the masculine, feminine or neuter
gender, shall include all other genders. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement.
19. Disputes. The parties hereby agree that any dispute which may arise
between them arising out of or in connection with this Subscription Agreement
may be adjudicated before a court located in New York City and they hereby
submit to the non-exclusive jurisdiction of the courts of the State of New York
located in New York, and of the federal courts in the Southern District of New
York, with respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any such action or proceeding brought in such a court or respecting the
fact that such court is an inconvenient forum, relating to or arising out of
this Subscription Agreement or any acts or omissions relating to the sale of the
Securities hereunder, and consent to the service of process in any such action
or legal proceeding by means of registered or certified mail, return receipt
requested, in care of the address set forth below or such other address as the
Investor shall furnish in writing to the Company.
20. Principal Residence or Principal Place of Business. The address
shown under the Investor's signature at the end of this Subscription Agreement
is the Investor's principal residence if he is an individual or its principal
place of business if it is a corporation or other entity.
21. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally, by
facsimile or mailed by certified or registered mail, return receipt requested,
postage prepaid, as follows:
if to the Investor, to the address set forth on the signature page hereof
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if to the Company, to:
Amarin Corporation plc
0 Xxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 (0) 000 000 0000
Attn: General Counsel & Company Secretary
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IN WITNESS WHEREOF, the Investor has executed this Subscription Agreement
on this _____ day of _____________, 200_.
For Individual Investors: For Investors other than Individuals:
-------------------------------------- --------------------------------------
Signature Name of Entity (Please Print)
By:
-------------------------------------- ----------------------------------
Name (Please Print) Signature
--------------------------------------
Name (Please Print)
--------------------------------------
Title
All Investors:
Residence or Principal Place Taxpayer Identification Number or
of Business: Social Security Number:
-------------------------------------- --------------------------------------
-------------------------------------- Aggregate Purchase Commitment:
US$:
---------------------------------
-------------------------------------- Price Per Share: To be determined in
accordance with the Memorandum, namely
at a price per share equal to 90% of
the average closing prices of the
Company's American Depositary Shares
on the Nasdaq National Market over the
five trading days ending on the
trading day immediately prior the
Closing Date (as defined in the
Memorandum)
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On this ___ day of __________, 200_, on behalf of the Company, a
subscription for ______ Securities is hereby accepted.
AMARIN CORPORATION PLC
By:
------------------------------------
[Amarin Signatory]
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ANNEX 1
TO
SUBSCRIPTION AGREEMENT
REGULATION D
QUALIFICATION STATEMENT
The undersigned qualifies as an "accredited investor" pursuant to
Regulation D under the Securities Act of 1933, as amended (the "1933 Act"), as a
result of its or his status as (check the appropriate description(s)):
_____________ 1. any bank as defined in Section 3(a)(2) of the Securities Act
or any savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Securities Act whether
acting in its individual or fiduciary capacity; any broker
dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934; any insurance company as defined in
Section 2(13) of the Securities Act; any investment company
registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48)
of that act; any Small Business Investment Company licensed
by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958;
any plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of
a state or its political subdivisions, for the benefit of
its employees, if such plan has total assets in excess of
$5,000,000;
_____________ 2. a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
_____________ 3. an organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific
purpose of acquiring the securities offered, with total
assets in excess of $5,000,000;
_____________ 4. a trust with total assets greater than $5,000,000, not
formed for the purpose of acquiring the securities offered,
whose purchase is directed by a person who has such
knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the
investment;
_____________ 5. an employee benefit plan within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, if any
of the following apply:
_____________ (i) the employee benefit plan has total assets in excess
of $5,000,000;
_____________ (ii) the investment decision is made by a plan fiduciary,
as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association, insurance
company, or registered investment adviser; or
(iii) the plan is a self-directed plan in which the
investment decisions are made solely by persons who
are accredited investors. (Please put an "*" in the
appropriate description(s) to indicate how the
person(s) making investment decisions are
"accredited"); or
_____________ 6. a natural person whose individual net worth, or joint net
worth with his or her spouse, exceeds US$1,000,000;
_____________ 7. a natural person who had an individual income in excess of
US$200,000 in each of the two most recent years, or joint
income with his or her spouse in excess of US$300,000 in
each of those years, and who has a reasonable expectation of
reaching the same income level in the current year; or
_____________ 8. an entity in which all of the equity owners are "accredited
investors" under any one or more of the categories specified
in subparagraphs 1 through 7 above.
Dated: _________________, 200_
If Investor is a corporation or
other entity:
________________________________________
INVESTOR'S NAME
By: ____________________________________
Name:
Title:
If Investor is an individual:
________________________________________
Name (Please print): ___________________
