AMARIN CORPORATION PLC 8,965,600 Ordinary Shares (£ 0.05 Par Value Per Share) PLACEMENT AGENCY AGREEMENT October 18, 2006
Exhibit
99.2
EXECUTION
COPY
AMARIN
CORPORATION PLC
8,965,600
Ordinary Shares
(£
0.05 Par
Value Per Share)
October
18, 2006
October
18, 0000
Xxxx
xx
Xxxxxxx Securities LLC
as
Placement Agent
0
Xxxx
00xx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and
Gentlemen:
Amarin
Corporation plc, a public limited company registered in England and Wales (the
“Company”), proposes to issue and sell to certain investors (collectively, the
“Investors”) up to an aggregate of 8,965,600 ordinary shares (the “Shares”)
£
0.05 par
value per share, of the Company (the “Ordinary Shares”). The Company desires to
engage Banc of America Securities LLC (the “Placement Agent”) as its lead
placement agent in connection with such issuance and sale. The Shares are
described in the Prospectus that is referred to below. Unless the Investors
instruct otherwise, the Shares will be represented by American Depositary Shares
("ADSs") evidenced by American Depositary Receipts ("ADRs").
The
Company has prepared and filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “Act”), with the Securities and Exchange Commission (the
“Commission”) a registration statement under the Act on Form F-3 (File No.
333-135718) dated July 12, 2006 (the “registration statement”). The registration
statement has been declared by the Commission to be effective under the Act.
The
Company will next file with the Commission pursuant to Rule 424(b) under the
Act
a final prospectus supplement to the Basic Prospectus (as defined below),
describing the Shares and the offering thereof, in such form as has been
provided to or discussed with, and reasonably approved, by the Placement
Agent.
The
term
“Registration Statement” as used in this Agreement means the registration
statement, at the time it became effective and as supplemented or amended prior
to the execution of this Agreement, including (i) all financial schedules and
exhibits and schedules thereto, (ii) all documents incorporated by reference
or
deemed to be incorporated by reference therein, and (iii) any required
information deemed to be a part thereof at the time of effectiveness pursuant
to
Rule 430A under the Act . The term “Basic Prospectus” as used in this Agreement
means the basic prospectus dated as of July 12, 2006 that is part of the
registration statement for use in connection with the offer and/or sale of
the
Shares pursuant to this Agreement. The term “Prospectus Supplement” as used in
this Agreement means the final prospectus supplement dated as of October 18,
2006 specifically relating to the Shares, and which will be filed with the
Commission pursuant to Rule 424(b) under the Act. The term “Prospectus” as used
in this Agreement means the Basic Prospectus together with the Prospectus
Supplement except that if such Basic Prospectus is amended or supplemented
on or
prior to the date on which the Prospectus Supplement was first filed pursuant
to
Rule 424(b), the term “Prospectus” shall refer to the Basic Prospectus as so
amended or supplemented and as supplemented by the Prospectus Supplement. Any
reference herein to the registration statement, the Registration Statement,
the
Basic Prospectus, any Prospectus Supplement or the Prospectus shall be deemed
to
refer to and
1
include
(i) the documents incorporated by reference therein pursuant to Form F-3 (the
“Incorporated Documents”) and (ii) the copy of the registration statement, the
Registration Statement, the Basic Prospectus, the Prospectus Supplement, the
Prospectus or the incorporated documents filed with the Commission pursuant
to
its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”). Any
reference herein to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement, the Basic Prospectus, the Prospectus Supplement
or the Prospectus shall be deemed to refer to and include the filing of any
document under the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder (collectively, the “Exchange Act”) after the
effective date of the Registration Statement, or the date of the Basic
Prospectus, the Prospectus Supplement or the Prospectus, as the case may be,
deemed to be incorporated therein by reference. As used herein, “business day”
shall mean a day on which the Nasdaq Capital Market is open for
trading.
The
term
“Disclosure Package” shall mean (i) the Basic Prospectus as of 10:00 P.M.
New York time on the date of this Agreement (the “Execution Time”), (ii)
the
issuer free writing prospectuses as defined in Rule 433 of the Act (each, an
“Issuer Free Writing Prospectus”),
if any,
identified in Schedule A hereto, (iii) the information provided in Schedule
B
hereto, and (iv) any other free writing prospectus that the parties hereto
shall
expressly agree in writing to treat as part of the Disclosure Package as of
the
Execution Time.
The
Company hereby confirms its agreement with the Placement Agent as
follows:
1. Agreement
to Act as Placement Agent.
Upon the
basis of the representations and warranties of the Company and subject to the
terms and conditions set forth in this Agreement and in the letter agreement
dated October 10, 2006 between the Company and the Placement Agent (the
“Engagement Letter”), the Company engages the Placement Agent to act as its lead
placement agent in the United States, on a best efforts basis, in connection
with the offer and sale by the Company of Shares in the United States to the
Investors. As compensation for services rendered, at the Closing Time (as
defined below) the Company shall pay to the Placement Agent, by Federal Funds
wire transfer to an account or accounts designated by the Placement Agent,
an
amount equal to (A) 6% of gross proceeds on sales to Investors in the United
States other than those listed on Schedule C hereto, plus (B) 5% of gross
proceeds on sales to Investors listed on Schedule C hereto. The Shares are
being
sold at a price of $2.09 per share. The Placement Agent may retain other brokers
or dealers to act as subagents on its behalf in connection with the offering
and
sale of the Shares; provided that the Company will only be obligated to pay
the
Placement Agent for services rendered hereunder. The provisions of this Section
1 supersede the provisions of Section 3 of the Engagement Letter, the Company's
obligations under Section 3 of the Engagement Letter are hereby terminated,
and
Section 3 of the Engagement Letter shall be of no further force or
effect.
This
Agreement shall not give rise to any commitment by the Placement Agent or any
of
its affiliates to underwrite or purchase any of the Shares or otherwise provide
any financing, and the Placement Agent shall have no authority to bind the
Company in respect of the sale of any Shares. The sale of the Shares shall
be
made pursuant to purchase agreements between the Company and each Investor
in
the form included as Exhibit
A
hereto
(the “Purchase Agreements”). The Placement Agent shall communicate to the
Company each reasonable offer
2
or
indication of interest received by it to purchase Shares. The Company shall
have
the sole right to accept offers to purchase the Shares and may reject any such
offer in whole or in part in its sole discretion.
2. Payment
and Delivery.
Subject
to the terms and conditions hereof, the documents required by Section 6 hereof
shall be delivered to the office of Xxxxxx Xxxxxx & Xxxxxxx llp
at 10:00
A.M.,
New York
City time, on October 23, 2006 (or at such other place as shall be
agreed upon by the Placement Agent and the Company) (the “Closing Date”).
Subject to the terms and conditions hereof, payment of the purchase price for
the Shares shall be made by 5:00 P.M. New York City time on Thursday, October
19, 2006 to the Company by Federal Funds wire transfer as set forth in Section
5
of the Purchase Agreements. The ADRs will be delivered to the Investors on
the
Closing Date through the facilities of The Depository Trust Company (“DTC”) The
time at which such payment is made for the Shares shall be deemed to be
simultaneous with the delivery of the ADRs to the Investors through the
facilities of DTC and is hereinafter sometimes called the “Closing Time.”
Electronic transfer of the ADRs shall be made at the Closing Time in such names
and in such denominations as specified in the Purchase Agreements.
3. Representations
and Warranties of the Company.
The
Company represents and warrants to and agrees with the Placement Agent
that:
(a) the
Registration Statement has been declared effective by the Commission; no stop
order of the Commission preventing or suspending the use of the Basic
Prospectus, the Prospectus Supplement or the Prospectus or the effectiveness
of
the Registration Statement has been issued, no proceedings for such purpose
have
been instituted or, to the Company’s knowledge, are threatened by the Commission
and any request on the part of the Commission for additional information has
been complied with; the Company is eligible to use Form F-3; such registration
statement at the date of this Agreement meets, and the offering of the Shares
complies with, the requirements of Rule 415 under the Act. The Registration
Statement complied when it became effective, complies and will comply, at the
Closing Time, and the Basic Prospectus, the Prospectus Supplement and the
Prospectus each conformed as of its respective date, conform and will conform
at
the Closing Time, in all material respects with the requirements of the Act
(including said Rule 415); any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or
the
Prospectus or to be filed as exhibits to the Registration Statement have been
or
will be so described or filed; the conditions to the use of Form F-3 have been
satisfied; and the Registration Statement did not at the time of effectiveness
and does not as of the date hereof contain an 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, and the Prospectus did not as
of
its date, does not and will not at the Closing Time contain an 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, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no warranty or representation with respect to any
statement contained in the Registration Statement or the Prospectus in reliance
upon and in conformity with information concerning the Placement Agent and
furnished in writing by or on behalf of the Placement Agent to the Company
expressly for use in the Registration Statement or the Prospectus; the documents
incorporated by reference in the Registration Statement and the Prospectus,
at
the time they were
3
filed
with
the Commission, complied in all material respects with the requirements of
the
Exchange Act; and the Company has not distributed and will not distribute any
offering material in connection with the offering or sale of the Shares other
than the Registration Statement, the Disclosure Package and the Prospectus;
no
forward-looking statement (within the meaning of Section 27A of the Act)
contained in the Registration Statement and the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good
faith; the Disclosure Package (taking into account the documents incorporated
by
reference therein) does not and, at the Execution Time, will not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading. If at any time following issuance of
an
Issuer Free Writing Prospectus there occurred or occurs an event or development
as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement, the
Company
has promptly notified or will promptly notify the Placement Agent and has
promptly amended or will promptly amend or supplement, at its own expense,
such
Issuer Free Writing Prospectus to eliminate or correct such
conflict;
(b) as
of the
date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the Registration Statement, the Disclosure
Package and the Basic Prospectus and, as of the Closing Time, the Company shall
have an authorized and outstanding capitalization as set forth in the
Registration Statement and the Prospectus (subject, in each case, to the
issuance of ordinary shares upon exercise of stock options and warrants
disclosed as outstanding in the Registration Statement, the Disclosure Package
and the Prospectus and grant of options under existing stock option plans
described in the Registration Statement and the Prospectus); all of the issued
and outstanding shares of capital stock, including the Shares, of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable English
laws
and were not issued in violation of any preemptive right, resale right, right
of
first refusal or similar right;
(c) the
Company has been duly incorporated and is validly existing as a public limited
company under the laws of England and Wales, with the requisite corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Disclosure Package and the
Prospectus, to execute and deliver this Agreement and to issue, sell and deliver
the Shares as contemplated herein;
(d) the
Company does not own or lease property or conduct business in any United States
jurisdiction that would require the Company to qualify to do business as a
foreign corporation in such jurisdiction, except where the failure to be so
qualified would not individually or in the aggregate, have a material adverse
effect on the business, properties, financial condition or results of operation
of the Company and the Subsidiaries taken as a whole (a “Material Adverse
Effect”);
(e) except
for
dormant subsidiaries, the Company has no subsidiaries (as defined in the Act)
other than those subsidiaries listed in Schedule D annexed hereto
(collectively, the “Subsidiaries”); the Company owns, directly or indirectly,
all of the issued and outstanding capital stock of each of the Subsidiaries
other than otherwise indicated in Schedule D annexed hereto; other than the
capital stock of the Subsidiaries and except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, the Company does not
own,
4
directly
or indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity; complete and correct
copies of the memorandum and articles of association, the certificate of
incorporation and the bylaws, or the certificate of formation and operating
agreement, as applicable, of the Company and the Subsidiaries and all amendments
thereto have been delivered to the Placement Agent, and no changes therein
will
be made subsequent to the date hereof and prior to the Closing Time; each
Subsidiary has been duly incorporated or formed and is validly existing as
a
corporation or limited liability company under the laws of the jurisdiction
of
its incorporation or formation, with the requisite power and authority to own,
lease and operate its properties and to conduct its business as described in
the
Registration Statement, the Disclosure Package and the Prospectus; the
Subsidiaries do not own or lease property or conduct business in any United
States jurisdiction that would require them to qualify to do business as a
foreign corporation in such jurisdiction, except where the failure be so
qualified would not, individually or in the aggregate, have a Material Adverse
Effect; all of the outstanding shares of capital stock or ownership interests
of
each of the Subsidiaries owned by the Company or any Subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable and are owned
by the Company or a Subsidiary subject to no security interest, other
encumbrance or adverse claims other than as listed in Schedule D annexed hereto
or disclosed in the Registration Statement, the Disclosure Package or
Prospectus; and no options, warrants or other rights to purchase, agreements
or
other obligations to issue or other rights to convert any obligation into shares
of capital stock or ownership interests in the Subsidiaries are outstanding
other than as listed in Schedule D annexed hereto;
(f) the
capital stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registration Statement,
the
Disclosure Package and the Prospectus;
(g) this
Agreement has been duly authorized, executed and delivered by the Company;
(h) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time
or
both would result in any breach or violation of, constitute a default under
or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a part
of
such indebtedness under) its respective memorandum and articles of association,
certificate of incorporation or bylaws, or certificate of formation or operating
agreement, as applicable, or any indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their properties
may
be bound or affected, except where such breach, violation or default would
not,
individually or in the aggregate, have a Material Adverse Effect, and the
execution, delivery and performance of this Agreement, the issuance and sale
of
the Shares and the consummation of the transactions contemplated hereby will
not
conflict with, result in any breach or violation of or constitute a default
under (nor constitute any event which with notice, lapse of time or both would
result in any breach or violation of or constitute a default under or give
the
holder of any indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) the
5
certificate
of incorporation or bylaws, or certificate of formation or operating agreement,
as applicable, of the Company or any of the Subsidiaries, or any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which any
of
them or any of their respective properties may be bound or affected, or any
federal, state, local or foreign law, regulation or rule or any decree, judgment
or order applicable to the Company or any of the Subsidiaries, except where
such
breach, violation or default would not, individually or in the aggregate, have
a
Material Adverse Effect;
(i) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency or of or with the Nasdaq Stock Market, the AIM Market of the London
Stock Exchange, the IEX Market of the Irish Stock Exchange or approval of the
stockholders of the Company, is required in connection with the issuance and
sale of the Shares or the consummation by the Company of the transactions
contemplated hereby other than registration under the Act of the offer and
sale
of the Shares, which has been effected, the listing of the Shares on the AIM
Market of the London Stock Exchange and the IEX Market of the Irish Stock
Exchange and any notification filing related thereto, and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered under the terms of this Agreement or
under
the rules and regulations of the NASD, the London Stock Exchange or the Irish
Stock Exchange;
(j) except
as
disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, no person has the right, contractual or otherwise, to cause the
Company to issue or sell to it any Ordinary Shares or shares of any other
capital stock or other equity interests of the Company, (ii) no person has
any
preemptive rights, resale rights, rights of first refusal or other rights to
purchase any Ordinary Shares or shares of any other capital stock or other
equity interests of the Company, and (iii) except as provided herein, including
without limitation Section 1 hereof or in the Engagement Letter, no person
has
the right to act as an underwriter or placement agent to the Company in
connection with the offer and sale of the Shares in the United States, in the
case of each of the foregoing clauses (i), (ii) and (iii), whether as a result
of the filing or effectiveness of the Registration Statement or the sale of
the
Shares as contemplated thereby or otherwise; except as disclosed in the
Registration Statement, the Disclosure Package or the Prospectus, no person
has
the right, contractual or otherwise, to cause the Company to register under
the
Act any Ordinary Shares or shares of any other capital stock or other securities
of the Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby, whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the Shares
as contemplated thereby or otherwise;
(k) each
of
the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule, and has obtained
all
necessary authorizations, consents and approvals from other persons, in order
to
conduct its respective business as currently conducted and as currently proposed
to be conducted, except where the absence of any of the foregoing would not,
individually or in the aggregate, have a Material Adverse Effect; neither the
Company nor any of the Subsidiaries is in violation of, or in default under,
or
has received notice of any proceedings relating to revocation or modification
of, any
6
such
license, authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment applicable
to
the Company or any of the Subsidiaries, except where such violation, default,
revocation or modification would not, individually or in the aggregate, have
a
Material Adverse Effect;
(l) all
legal
or governmental proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases or documents of a
character required to be described in the Registration Statement, the Disclosure
Package or the Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed as required;
(m) except
as
disclosed in the Registration Statement, the Disclosure Package and the
Prospectus, there are no actions, suits, claims, investigations or proceedings
pending or, to the Company’s knowledge, threatened to which the Company or any
of the Subsidiaries or any of their respective directors or officers is or
would
be a party or of which any of their respective properties is or would be subject
at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency, except
any such action, suit, claim, investigation or proceeding which the Company
does
not expect (acting reasonably) to result in a judgment, decree or order having,
individually or in the aggregate, a Material Adverse Effect or prevent
consummation of the transactions contemplated hereby; the Company does not
expect (acting reasonably) the aggregate of all pending legal or governmental
proceedings to which the Company or any Subsidiary is a party or of which any
of
their respective property or assets is the subject which are not described
in
the Registration Statement, including ordinary routine litigation incidental
to
the business, would result in a Material Adverse Effect;
(n) PricewaterhouseCoopers
LLP and Ernst & Young LLP, whose reports on the consolidated financial
statements of the Company are filed with the Commission as part of the
Registration Statement, the Disclosure Package and the Prospectus, are
independent public accountants as required by the Act;
(o) the
audited financial statements included in the Registration Statement, the
Disclosure Package or the Prospectus, together with the related notes and
schedules, present fairly in all material respects the consolidated financial
position of the Company as of the dates indicated and the consolidated results
of operations and cash flows of the Company and the Subsidiaries for the periods
specified and have been prepared in compliance with the requirements of the
Act
and in conformity with 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 (i) as may be
otherwise specified in such financial statements or the notes thereto, or
(ii) in the case of unaudited interim statements, to the extent they may
exclude footnotes or may be condensed or summary statements; any pro forma
financial statements or data included in the Registration Statement, the
Disclosure Package or the Prospectus comply with the requirements of Regulation
S-X of the Act, the assumptions used in the preparation of such pro forma
financial statements and data are reasonable, the pro forma adjustments used
therein are appropriate to give effect to the transactions or circumstances
described therein and the pro forma adjustments have been properly applied
to
the historical amounts in the compilation of those statements and data; the
other financial and statistical data set forth in the Registration Statement,
the Disclosure Package
7
and
the
Prospectus are, in all material respects, accurately presented and prepared
on a
basis consistent with the financial statements and books and records of the
Company; there are no financial statements (historical or pro forma) that are
required to be included in the Registration Statement, the Disclosure Package
and the Prospectus that are not included as required; and the Company and the
Subsidiaries do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not disclosed in
the
Registration Statement, the Disclosure Package or the Prospectus, except any
such obligations which would not, individually or in the aggregate, have a
Material Adverse Effect;
(p) subsequent
to the respective dates as of which information is given in the Registration
Statement, the Disclosure Package and the Prospectus, there has not been (i)
any
material adverse change in the business, properties, management, financial
condition or results of operations of the Company and the Subsidiaries taken
as
a whole, whether or not arising in the ordinary course of business (ii) any
transaction which is material to the Company and the Subsidiaries taken as
a
whole, (iii) any obligation, direct or contingent (including any off-balance
sheet obligations), incurred by the Company or the Subsidiaries, which is
material to the Company and the Subsidiaries taken as a whole, (iv) any material
change in the capital stock of the Company or the Subsidiaries or (v) any
dividend or distribution of any kind declared, paid or made on the capital
stock
of the Company;
(q) neither
the Company nor any of the Subsidiaries is nor, after giving effect to the
offering and sale of the Shares and the application of the net proceeds
therefrom, will any of them be required to register as an “investment company”
under the Investment Company Act of 1940, as amended (the “Investment Company
Act”) or a “controlled foreign corporation” as such terms are defined in the
Internal Revenue Code;
(r) except
as
described in the Registration Statement, the Disclosure Package or the
Prospectus, the Company and each of the Subsidiaries has good and marketable
title to all property (real and personal) described in the Registration
Statement, the Disclosure Package and in the Prospectus as being owned by each
of them, free and clear of all liens, claims, security interests or other
encumbrances, or liens, claims, security interests or other encumbrances that
do
not materially affect the value of such property, do not materially interfere
with the use made of such property by the Company or such Subsidiary and would
not, individually or in the aggregate, result in a Material Adverse Effect;
all
the property described in the Registration Statement, the Disclosure Package
and
the Prospectus as being held under lease by the Company or a Subsidiary is
held
thereby under valid, subsisting and enforceable leases;
(s) except
as
described in the Registration Statement, the Disclosure Package or the
Prospectus, the Company and the Subsidiaries own, or have obtained valid and
enforceable licenses for, or other rights to use, the inventions, patent
applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights, trade secrets and other proprietary information
described in the Registration Statement, the Disclosure Package or the
Prospectus as being owned or licensed by them or which are necessary for the
conduct of their respective businesses as currently conducted or as currently
proposed to be conducted (collectively, “Intellectual Property”), except where
the failure to own, license or have such rights would not, individually or
in
the aggregate, have a Material Adverse Effect; except as described in the
Registration Statement, the Disclosure Package or the Prospectus, to the
8
Company’s
knowledge, there are no third parties who have or will be able to establish
rights to any Intellectual Property, except for the Intellectual Property which
is licensed to the Company; to the Company’s knowledge, there is no infringement
by third parties of any Intellectual Property, except as the Company reasonably
expects would not have a Material Adverse Effect; there is no pending or, to
the
Company’s knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s rights in or to any Intellectual Property, except as
the Company reasonably expects would not have a Material Adverse Effect; there
is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
Intellectual Property, and the Company is unaware of any facts which could
form
a reasonable basis for any such claim; there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others that the
Company infringes or otherwise violates any patent, trademark, copyright, trade
secret or other proprietary rights of others, except as the Company reasonably
expects would not have a Material Adverse Effect; to the Company’s knowledge,
there is no patent or patent application that contains claims that interfere
with the issued or pending claims of any of the Intellectual Property; the
Company has duly and properly filed or caused to be filed with the United
State’s Patent and Trademark Office (the "PTO") and applicable foreign and
international patent authorities all patent applications owned by the Company
(the "Company Patent Applications"); to the knowledge of the Company, the
Company has complied with the PTO's duty of candor and disclosure for the
Company Patent Applications and has made no material misrepresentation in the
Company Patent Applications; to the knowledge of the Company, there is no
material that may render any Company Patent Application unpatentable that has
not been disclosed to the PTO and applicable foreign and international patent
authorities; the Company has no knowledge of any information which would
preclude the Company from having clear title to the Company Patent Applications;
(t) neither
the Company nor any of the Subsidiaries is engaged in any unfair labor practice;
except for matters which would not, individually or in the aggregate, have
a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint
pending or, to the Company’s knowledge, threatened against the Company or any of
the Subsidiaries, and no grievance or arbitration proceeding arising out of
or
under collective bargaining agreements is pending or, to the Company’s
knowledge, threatened, (B) no strike, labor dispute, slowdown or stoppage
pending or, to the Company’s knowledge, threatened against the Company or any of
the Subsidiaries and (C) no union representation dispute currently existing
concerning the employees of the Company or any of the Subsidiaries, and (ii)
to
the Company’s knowledge, (A) no union organizing activities are currently taking
place concerning the employees of the Company or any of the Subsidiaries and
(B)
there has been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees, any applicable
wage or hour laws or any provision of the Employee Retirement Income Security
Act of 1974 (“ERISA”) or the rules and regulations promulgated thereunder
concerning the employees of the Company or any of the Subsidiaries, except
in
the cases of clauses (i) and (ii) for such actions which would not, individually
or in the aggregate, have a Material Adverse Effect;
(u) the
Company and the Subsidiaries and their properties, assets and operations are
in
compliance with, and hold all permits, authorizations and approvals required
under, Environmental Laws (as defined below), except to the extent that failure
to so comply or to hold such permits, authorizations or approvals would not,
individually or in the aggregate,
9
have
a
Material Adverse Effect; there are no past, present or, to the Company’s
knowledge, reasonably anticipated future events, conditions, circumstances,
activities, practices, actions, omissions or plans that the Company reasonably
expects to give rise to any material costs or liabilities to the Company or
the
Subsidiaries under, or to interfere with or prevent compliance by the Company
or
the Subsidiaries with, Environmental Laws; except as would not, individually
or
in the aggregate, have a Material Adverse Effect, to the Company’s knowledge,
neither the Company nor any of the Subsidiaries (i) is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party to or
affected by any pending or threatened action, suit or proceeding, (iv) is bound
by any judgment, decree or order or (v) has entered into any agreement, in
each
case relating to any alleged violation of any Environmental Law or any actual
or
alleged release or threatened release or cleanup at any location of any
Hazardous Materials (as defined below) (as used herein, “Environmental Law”
means any federal, state, local or foreign law, statute, ordinance, rule,
regulation, order, decree, judgment, injunction, permit, license, authorization
or other binding requirement, or common law, relating to health, safety or
the
protection, cleanup or restoration of the environment or natural resources,
including those relating to the distribution, processing, generation, treatment,
storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and “Hazardous Materials” means any material
(including, without limitation, pollutants, contaminants, hazardous or toxic
substances or wastes) that is regulated by or may give rise to liability under
any Environmental Law);
(v) all
material tax returns required to be filed by the Company and each of the
Subsidiaries have been filed, and all material taxes and other assessments
of a
similar nature (whether imposed directly or through withholding) including
any
interest, additions to tax or penalties applicable thereto due or claimed to
be
due from such entities have been paid, other than those being contested in
good
faith and for which adequate reserves have been provided; the charges, accruals
and reserves on the books of the Company in respect of any income and
corporation tax liability for any years not finally determined are adequate
to
meet any assessments or re-assessments for additional income tax for any years
not finally determined, except to the extent of any inadequacy that would not
result in a Material Adverse Effect;
(w) the
Company and each of the Subsidiaries maintains insurance covering its
properties, operations, personnel and businesses as the Company deems adequate;
such insurance insures against such losses and risks to an extent which is
adequate and customary for the business and the locations in which the Company
and its Subsidiaries are engaged; all such insurance is fully in force on the
date hereof and will be fully in force at the Closing Time, except as would
not,
individually or in the aggregate, have a Material Adverse Effect;
(x) neither
the Company nor any of the Subsidiaries has sustained since the date of the
last
audited financial statements included in the Registration Statement, the
Disclosure Package or the Prospectus any loss or interference with its
respective business from fire, explosion, flood or other calamity, whether
or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, except as would not, individually or in the aggregate,
have a Material Adverse Effect;
(y) except
as
otherwise disclosed in the Registration Statement, the Disclosure Package and
the Prospectus, the Company has not sent or received any written communication
10
regarding
termination of any of the contracts or agreements referred to or described
in,
or filed as an exhibit to, the Registration Statement, and no such termination
has been threatened by the Company or, to the Company’s knowledge, any other
party to any such contract or agreement, except as would not, individually
or in
the aggregate, have a Material Adverse Effect;
(z) the
Company is not aware of any significant deficiencies, including material
weaknesses, in the design or operation of internal control over financial
reporting that are reasonably likely to adversely affect the Company’s ability
to record, process, summarize, and report financial data, though the Company
has
not yet completed its implementation of Sarbanes Oxley Section 404 project.
The
Company acknowledges its responsibility for the design and implementation of
programs and controls to prevent and detect fraud. The Company is not aware
of
any reason that it will not be able to comply with the requirements of Section
404 of the Sarbanes Oxley Act at the time it is required to do so;
(aa) the
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act); the principal
executive officers (or their equivalents) and principal financial officers
(or
their equivalents) of the Company have made all certifications required by
the
Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and any related rules and
regulations promulgated by the Commission, and the statements contained in
any
such certification are complete and correct; and the Company is otherwise in
compliance in all material respects with all applicable provisions of the
Xxxxxxxx-Xxxxx Act that are effective;
(bb) the
Company has made available to the Placement Agent true, correct, and complete
copies of all documentation pertaining to any extension of credit in the form
of
a personal loan made, directly or indirectly, by the Company to any director
or
executive officer of the Company, or to any family member or affiliate of any
director or executive officer of the Company; and since July 30, 2002, except
as
otherwise disclosed in the Registration Statement, the Disclosure Package and
the Prospectus, `the Company has not, directly or indirectly, including through
any Subsidiary: (i) extended credit, arranged to extend credit, or renewed
any
extension of credit, in the form of a personal loan, to or for any director
or
executive officer of the Company, or to or for any family member or affiliate
of
any director or executive officer of the Company; or (ii) made any material
modification, including any renewal thereof, to any term of any personal loan
to
any director or executive officer of the Company, or any family member or
affiliate of any director or executive officer, which loan was outstanding
on
July 30, 2002;
(cc) any
statistical and market-related data included in the Registration Statement,
the
Disclosure Package or the Prospectus are based on or derived from sources that
the Company believes to be reliable and accurate, and the Company has obtained
the written consent to the use of such data from such sources to the extent
required;
(dd) neither
the Company nor any of the Subsidiaries nor, to the Company’s knowledge, any
employee or agent of the Company or the Subsidiaries (acting on behalf of the
Company or the Subsidiaries) has made any payment of funds of the Company or
the
Subsidiaries or received or retained any funds in violation of any law, rule
or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Registration Statement, the Disclosure Package
or the Prospectus;
11
(ee) neither
the Company nor any of the Subsidiaries nor any of their respective directors,
officers or affiliates has taken, directly or indirectly, any action designed,
or which has constituted or might reasonably be expected to cause or result
in,
under the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares;
(ff) the
Company has not offered, or caused the Placement Agent to offer, Shares to
any
person with the intent to influence unlawfully (i) a customer or supplier of
the
Company or any of the Subsidiaries to alter the customer’s or supplier’s level
or type of business with the Company or any of the Subsidiaries, or (ii) a
trade
journalist or publication to write or publish favorable information about the
Company or any of the Subsidiaries or any of their respective products or
services;
(gg) there
are
no contracts or documents which are required to be described in the Registration
Statement or to be filed as exhibits thereto which have not been so described
and filed as required;
(hh) the
Company has operated and currently is in compliance with all applicable rules,
regulations and policies of the United States Food and Drug Administration
(the
"FDA"), except where the failure to so operate or be in compliance would not
reasonably be expected to have a Material Adverse Effect; any human studies
or
tests and preclinical and clinical trials conducted by or on behalf of the
Company or in which the Company participated were and, if still pending, are
being, conducted in all material respects in accordance with experimental
protocols, procedures and controls pursuant to, where applicable, accepted
professional and scientific standards; any descriptions of the results of such
studies, tests and trials contained in the Registration Statement are accurate
in all material respects; and the Company has not received any notices or
correspondence from the FDA or any foreign, state or local governmental body
exercising comparable authority requiring the termination, suspension or
material modification of any studies, tests or preclinical or clinical trials
conducted by or on behalf of the Company which termination, suspension or
material modification would reasonably be expected to have a Material Adverse
Effect;
(ii) no
relationship, direct or indirect, exists between or among the Company or its
Subsidiaries, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or its Subsidiaries, on the other, that
is
required by the Act to be described in the Registration Statement, the
Disclosure Package and the Prospectus and that is not so described;
(jj) as
of the
Execution Time (with such date being used as the determination date for purposes
of this clause), the Company is not an “ineligible issuer” (as defined in Rule
405 of the Act).
In
addition, any certificate signed by any authorized officer of the Company or
any
of the Subsidiaries and delivered to the Placement Agent or counsel for the
Placement Agent in connection with the closing of the sale of the Shares shall
be deemed to be a representation and warranty by the Company or such Subsidiary,
as the case may be, as to matters covered thereby, to the Placement
Agent.
12
4. Certain
Covenants of the Company.
The
Company hereby agrees:
(a) to
furnish
such information as may be required and otherwise to cooperate in qualifying
the
Shares for offering and sale under the securities or blue sky laws of such
states or other jurisdictions as the Placement Agent may reasonably designate
and to maintain such qualifications in effect so long as the Placement Agent
may
reasonably request for the distribution of the Shares; provided that the Company
shall not be required to qualify as a foreign corporation or to consent to
the
service of process under the laws of any such jurisdiction (except service
of
process with respect to the offering and sale of the Shares); and to promptly
advise the Placement Agent of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for sale
in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(b) that
it
has not made, and unless it obtains the prior written consent of the Placement
Agent, it will not make, any offer relating to the Shares that would constitute
a “free writing prospectus” (as defined in Rule 405 of the Act) required to be
filed by the Company with the Commission or retained by the Company under Rule
433 of the Act. Any such free writing prospectus consented to by the Placement
Agent is hereinafter referred to as a “Permitted Free Writing Prospectus”. The
Company agrees that it has complied and will comply, as the case may be, with
the requirements of Rules 164 and 433 of the Act applicable to any Permitted
Free Writing Prospectus, including in respect of timely filing with the
Commission, legending and record keeping;
(c) if,
at the
Execution Time, it is necessary for any post-effective amendment to the
Registration Statement to be declared effective before the Shares may be sold,
the Company will endeavor to cause such post-effective amendment to become
effective as soon as possible and the Company will advise the Placement Agent
promptly and, if requested by the Placement Agent, will confirm such advice
in
writing, (i) when such post-effective amendment thereto has become effective,
and (ii) when the Prospectus Supplement is filed with the Commission pursuant
to
Rule 424(b) under the Act (which the Company agrees to file in a timely manner
under such Rule);
(d) to
advise
the Placement Agent promptly, confirming such advice in writing, of any request
by the Commission prior to the Closing Time for amendments or supplements to
the
Registration Statement or the Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the entry
of
a stop order, suspending the effectiveness of the Registration Statement and,
if
the Commission should enter a stop order suspending the effectiveness of the
Registration Statement prior to the Closing Time, to use its commercially
reasonable efforts to obtain the lifting or removal of such order as soon as
possible; to advise the Placement Agent promptly of any proposal prior to the
Closing Time to amend or supplement the Registration Statement or the
Prospectus, including by filing any documents that would be incorporated therein
by reference, to provide the Placement Agent and its counsel copies of any
such
documents for review and comment a reasonable amount of time prior to any
proposed filing and to file no such amendment or supplement to which the
Placement Agent shall reasonably object in writing;
13
(e) subject
to
Section 4(d) hereof, to file promptly (after giving effect to any extensions
granted under Rule 12b-25 of the Exchange Act) all reports required to be filed
by the Company with the Commission in order to comply with the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a
prospectus is required in connection with the offering or sale of the
Shares;
(f) to
advise
the Placement Agent promptly of the happening of any event within the time
during which a prospectus relating to the Shares is required to be delivered
under the Act which requires the making of any change in the Prospectus then
being used so that the Prospectus would not include an untrue statement of
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made, not
misleading, and, during such time, subject to Section 4(d) hereof, to prepare
and furnish, at the Company’s expense, to the Placement Agent promptly such
amendments or supplements to such Prospectus as may be necessary to reflect
any
such change;
(g) as
soon as
practicable, the Company will make generally available to its security holders
and to the Placement Agent an earnings statement (which need not be audited)
covering the twelve-month period ending December 31, 2007 that satisfies the
provisions of Section 11(a) of the Act and Rule 158 under the Act;
(h) to
comply
with all the undertakings contained in the Registration Statement;
(i) to
furnish
to the Placement Agent as early as practicable prior to the Closing Time, but
not later than two business days prior thereto, a copy of the latest publicly
available unaudited interim consolidated financial statements, if any, of the
Company which have been read by the Company’s independent certified public
accountants, as stated in their letter to be furnished pursuant to Section
6(c)
hereof;
(j) to
apply
the net proceeds from the sale of the Shares in the manner set forth under
the
caption “Use of Proceeds” in the Prospectus Supplement;
(k)
to
reimburse the Placement Agent for reasonable expenses as set forth in the
Engagement Letter in an amount not to exceed $135,000, and to pay all of the
Company’s costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Prospectus Supplement and any amendments or supplements to
the
Registration Statement, and the printing and furnishing of copies of each
thereof to the Placement Agent (including costs of mailing and shipment), (ii)
the registration, issue, sale and delivery of the Shares including any stock
or
transfer taxes and stamp or similar duties payable upon the issuance or delivery
of the ADRs, (iii) the producing, word processing and/or printing of this
Agreement, the Purchase Agreements, any Powers of Attorney and any closing
documents (including compilations thereof) and the reproduction and/or printing
and furnishing of copies of each thereof to the Placement Agent and the
Investors, (iv) the qualification of the Shares for offering and sale under
state or foreign laws and the determination of their eligibility for investment
under state or foreign law as aforesaid (including the reasonable legal fees
and
filing fees and other disbursements of counsel for the Placement Agent) and
the
printing and furnishing of copies of any blue sky surveys or legal investment
surveys to the Placement Agent and to dealers, (v) the fees and disbursements
of
any
14
transfer
agent or registrar for the Shares, (vi) the costs and expenses of the Company
relating to any presentations or meetings undertaken in connection with the
marketing of the offering and sale of the Shares to prospective investors and
the Placement Agent’s sales forces, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations, travel, lodging and other expenses incurred by the officers
of
the Company and any such consultants, in connection with the road show and
(vii)
the performance of the Company’s other obligations hereunder;
(l) not
to
sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any
option to purchase or otherwise dispose of or agree to dispose of, directly
or
indirectly, any Ordinary Shares or securities convertible into or exchangeable
or exercisable for Ordinary Shares or warrants or other rights to purchase
Ordinary Shares or any other securities of the Company that are substantially
similar to Ordinary Shares, or file or cause to be declared effective a
registration statement under the Act relating to the offer and sale of any
shares of Ordinary Shares or securities convertible into or exercisable or
exchangeable for Ordinary Shares or other rights to purchase Ordinary Shares
or
any other securities of the Company that are substantially similar to Ordinary
Shares for a period of 45 days after the date hereof (the “Lock-Up Period”),
without the prior written consent of the Placement Agent, except for the
registration of the Shares and the sales of the Shares pursuant to this
Agreement and pursuant to (i) previously issued options, warrants or similar
instruments; (ii) any contractual obligations of the Company in effect as of
the
date of this Agreement, or as subsequently restructured or renegotiated, (iii)
any agreements providing for anti-dilution or other share issuance rights,
(iv)
any employee stock purchase, stock option, benefit or similar plan of the
Company, (v) any merger, acquisition or other business combination transaction
that the Company may enter into, or (vi) any licensing agreement or other
commercial transaction entered into in the ordinary course of business in which
the consideration to be paid by the Company is in the form of such securities;
(m) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Shares and related American
Depositary Shares;
(n) (i) in
connection with the offering contemplated hereby and the process leading to
such
transaction, the Placement Agent is and has been acting solely as a principal
and is not the agent or fiduciary of the Company, or its stockholders,
creditors, employees or any other party, (ii) the Placement Agent has not
assumed and will not assume an advisory or fiduciary responsibility in favor
of
the Company with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether the Placement Agent has advised or
is
currently advising the Company on other matters) and the Placement Agent has
no
obligation to the Company with respect to the offering contemplated hereby
except the obligations expressly set forth in this Agreement, (iii) the
Placement Agent and its affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company,
and
(iv) the Placement Agent has not provided any legal, accounting, regulatory
or tax advice with respect to the offering contemplated hereby and the Company
has consulted its own legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate; and
15
(o) the
Company shall have used its best efforts to have furnished to the Placement
Agent an agreement in the form of Exhibit
B
hereto
from the
Company’s executive officers and directors.
5. Reimbursement
of Placement Agent’s Expenses.
If this
Agreement is terminated by the Placement Agent pursuant to Section 7, or if
the
sale to the Investors of the Shares at the Closing Time is not consummated
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, the Company
shall reimburse the Placement Agent for all of its reasonable out-of-pocket
expenses (including the amounts described in Section 4(k) hereof), including
the
fees and disbursements of its counsel in an amount not to exceed $135,000.
The
provisions of this Section 5 supersede the provisions of Section 4 of the
Engagement Letter, the Company’s obligations under Section 4 of the Engagement
Letter are hereby terminated, and Section 4 of the Engagement Letter shall
be of
no further force or effect.
6. Conditions
of Placement Agent’s Obligations.
The
obligations of the Placement Agent hereunder are subject to the accuracy of
the
representations and warranties on the part of the Company on the date hereof
and
at the Closing Date and the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) The
Company shall furnish to the Placement Agent at the Closing Time an opinion
of
(i) Xxxxxx Xxxxxx & Xxxxxxx llp,
U.S.
counsel for the Company, substantially in the form as set forth in Exhibit
C,
and (ii)
an opinion of Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP, English counsel
for the Company, substantially in the form as set forth in Exhibit
D,
in each
case addressed to the Placement Agent, and dated the Closing Date, in form
and
substance satisfactory to Xxxxxx Xxxxxx LLP, counsel for the Placement Agent.
(b) The
Company shall furnish to the Placement Agent at the Closing Time an opinion
of
(i) Reddie & Xxxxx, Intellectual Property counsel for the Company,
substantially in the form as set forth in Exhibit
E,
and (ii)
an opinion of Xxxxx, Xxxxxx & XxXxxxxx, Regulatory Counsel for the Company,
substantially in the form set forth in Exhibit
F,
in each
case addressed to the Placement Agent, and dated the Closing Date, in form
and
substance satisfactory to Xxxxxx Xxxxxx LLP, counsel for the Placement Agent.
(c) The
Placement Agent shall have received from PricewaterhouseCoopers LLP letters
dated, respectively, the date of this Agreement and the Closing Date, and
addressed to the Placement Agent in the forms heretofore approved by the
Placement Agent. The Placement Agent shall have also received from Ernst &
Young LLP a letter dated the date of the Agreement and addressed to the
Placement Agent in the form heretofore approved by the Placement
Agent.
(d) The
Placement Agent shall have received at the Closing Time the favorable opinion
of
Xxxxxx Xxxxxx LLP, counsel for the Placement Agent, dated the Closing Time,
as
to the matters heretofore approved by the Placement Agent.
16
(e) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus, including documents deemed to be incorporated by reference therein,
shall have been filed to which the Placement Agent reasonably objected in
writing.
(f) The
Prospectus Supplement shall have been filed with the Commission pursuant to
Rule
424(b) under the Act before 5:30 P.M. New York City time on the second full
business day after the date of this Agreement.
(g) Prior
to
the Closing Time:
(i)
the
Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430A under the Act) in the manner and within the
time period required by Rule 424(b) under the Act; or the Company shall have
filed a post-effective amendment to the Registration Statement containing the
information required by such Rule 430A, and such post-effective amendment shall
have become effective;
(ii)
all
material required to be filed by the Company pursuant to Rule 433(d) under
the
Act shall have been filed with the Commission within the applicable time periods
prescribed for such filings under such Rule 433; and
(iii)
no
stop order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect
and
no proceedings for such purpose shall have been instituted or threatened by
the
Commission.
(h) Between
the time of execution of this Agreement and the Closing Time, no material
adverse change in the business, properties, management, financial condition
or
results of operations of the Company and the Subsidiaries taken as a whole
shall
have occurred.
(i) The
Company will, at the Closing Time, deliver to the Placement Agent a certificate
of its Chief Executive Officer and its Chief Financial Officer in the form
attached as Exhibit
G
hereto.
(j) The
Company shall have furnished to the Placement Agent such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the Closing Time, as the
Placement Agent may reasonably request.
(k) All
requests for additional information on the part of the Commission shall have
been complied with.
7. Effective
Date of Agreement; Termination.
This
Agreement shall become effective when the parties hereto have executed and
delivered this Agreement.
The
obligations of the Placement Agent hereunder shall be subject to termination
in
the absolute discretion of the Placement Agent if (x) since the time of
execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement, the
17
Disclosure
Package and the Prospectus, there has been any material adverse change or any
development involving a prospective change, in the business, properties,
management, financial condition or results of operations of the Company and
the
Subsidiaries taken as a whole, which would, in the Placement Agent’s judgment,
make it impracticable or inadvisable to proceed with the public offering or
the
delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement, the Disclosure Package and the Prospectus, or (y) since
the time of execution of this Agreement, there shall have occurred: (i) a
suspension or material limitation in trading in securities generally on the
NYSE, the American Stock Exchange or the Nasdaq Stock Market, the Chicago Board
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade;
(ii) a suspension or material limitation in trading in the Company’s securities
on the Nasdaq Stock Market; (iii) a general moratorium on commercial banking
activities declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) an outbreak or significant escalation of
hostilities or acts of terrorism involving the United States, or a declaration
by the United States of a national emergency or war; or (v) any other calamity
or crisis or any change in financial, political or economic conditions in the
United States or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in the Placement Agent’s judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
on
the terms and in the manner contemplated in the Registration Statement, the
Disclosure Package and the Prospectus, or (z) since the Execution Time, there
shall have occurred any downgrading, or any notice or announcement shall have
been given or made of (i) any intended or potential downgrading or (ii) any
watch, review or possible change that does not indicate an affirmation or
improvement in the rating accorded any securities of or guaranteed by the
Company or any Subsidiary by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the
Act.
If
the
Placement Agent elects to terminate this Agreement as provided in this Section
7, the Company shall be notified promptly in writing.
If
the
sale of the Shares, as contemplated by this Agreement, is not carried out by
the
Placement Agent for any reason permitted under this Agreement or if such sale
is
not carried out because the Company shall be unable to comply with any of the
terms of this Agreement, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided in Sections 5
and
8 hereof), and the Placement Agent shall be under no obligation or liability
to
the Company under this Agreement (except to the extent provided in Section
8
hereof). Under such circumstances, the Engagement Letter shall remain in full
force and effect in accordance with its terms.
8. Indemnity
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless the Placement Agent,
its
partners, directors and officers, and any person who controls the Placement
Agent within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, and the successors and assigns of all of the foregoing persons, from and
against any loss, damage, expense, liability or claim (including the reasonable
cost of investigation and preparation) which the Placement Agent or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim (or actions in
18
respect
thereof as contemplated below) and arises out of or is based (i) upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in any amendment to the Registration Statement),
the
Disclosure Package or in a Prospectus, or arises out of or is based upon any
omission or alleged omission of a material fact in connection with such
information required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not misleading, or (ii) any
act
or failure to act or alleged act or failure to act by the Placement Agent in
reliance upon (i), and in connection with, or relating in any manner to the
Shares or the offering contemplated hereby, and which is included as part of
or
referred to in any loss, claim, damage, liability or action arising out of
or
based upon any matter covered by clause (i) above; provided that the Company
shall not be liable under this clause (ii) to the extent that a court of
competent jurisdiction shall have determined by a final judgment that such
loss,
claim, damage, liability or action resulted directly and solely from any such
acts or failures to act undertaken or omitted to be taken by the Placement
Agent
through its fraud, gross negligence or willful misconduct; provided further,
that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, 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 Placement Agents expressly for
use
in the Registration Statement, the Disclosure Package or in the Prospectus.
The
indemnity in this Section 8(a) shall be in addition to any liability that the
Company may otherwise have.
If
any
action, suit or proceeding (each, a “Proceeding”) is brought against the
Placement Agent or any such person in respect of which indemnity may be sought
against the Company pursuant to the foregoing paragraph, the Placement Agent
or
such person shall promptly notify the Company in writing of the institution
of
such Proceeding and the Company shall have the right to assume the defense
in
such Proceeding, including the employment of counsel reasonably satisfactory
to
such indemnified party and payment of all fees and expenses incurred in
connection with defense thereof; provided, however, that the omission to so
notify the Company shall not relieve the Company from any liability which the
Company may have to the Placement Agent or any such person or otherwise pursuant
to this Agreement, except to the extent that the Company was prejudiced thereby.
The Placement Agent or such person shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel shall
be
at the expense of the Placement Agent or of such person unless the employment
of
such counsel shall have been authorized in writing by the Company in connection
with the defense of such Proceeding or the Company shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
have charge of the defense in such Proceeding or such indemnified party or
parties and the Company shall have been advised by counsel in writing that
there
may be defenses available to such indemnified party or parties which are
different from, additional to or in conflict with those available to the Company
(in which case the Company shall not have the right to direct the defense of
such Proceeding on behalf of the indemnified party or parties, but the Company
may employ counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of the Company), in any of
which events such fees and expenses shall be borne by the Company and paid
as
incurred (it being understood, however, that the Company shall not be liable
for
the expenses of more than one separate firm of attorneys (in addition to any
local counsel) in any one Proceeding or series of
19
related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The Company shall not be liable for any
settlement of any Proceeding effected without its written consent, but if
settled with the written consent of the Company, the Company agrees to indemnify
and hold harmless the Placement Agent and any such person from and against
any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying
party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days’ prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding and does not include
an
admission of fault, culpability or a failure to act, by or on behalf of such
indemnified party.
(b) The
Placement Agent agrees to indemnify, defend and hold harmless the Company,
its
directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person
may
incur under the Act, the Exchange Act, the common law or otherwise, insofar
as
such loss, damage, expense, liability or claim 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 the Registration Statement (or in amended to the Registration Statement),
the
Disclosure Package or in the 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.
If
any
Proceeding is brought against the Company or any such person in respect of
which
indemnity may be sought against the Placement Agent pursuant to the foregoing
paragraph, the Company or such person shall promptly notify the Placement Agent
in writing of the institution of such Proceeding and the Placement Agent may
assume the defense in such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses incurred in connection with defense thereof; provided, however, that
the omission to so notify the Placement Agent shall not relieve the Placement
Agent from any liability which the Placement Agent may have to the Company
or
any such person or otherwise pursuant to this Agreement, except to the extent
that the Placement Agent was prejudiced thereby. The Company or such person
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of the
20
Company
or
such person unless the employment of such counsel shall have been authorized
in
writing by the Placement Agent in connection with the defense in such Proceeding
or the Placement Agent shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to defend such Proceeding or such
indemnified party or parties shall have been advised by counsel in writing
that
there may be defenses available to it or them which are different from or
additional to or in conflict with those available to the Placement Agent (in
which case the Placement Agent shall not have the right to direct the defense
of
such Proceeding on behalf of the indemnified party or parties, but the Placement
Agent may employ counsel and participate in the defense thereof but the fees
and
expenses of such counsel shall be at the expense of the Placement Agent), in
any
of which events such fees and expenses shall be borne by the Placement Agent
and
paid as incurred (it being understood, however, that the Placement Agent shall
not be liable for the expenses of more than one separate firm of attorneys
(in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The Placement Agent shall not be liable for
any
settlement of any such Proceeding effected without the written consent of the
Placement Agent, but if settled with the written consent of the Placement Agent,
the Placement Agent agrees to indemnify and hold harmless the Company and any
such person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of
this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have
given
the indemnifying party at least 30 days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from
all liability on claims that are the subject matter of such Proceeding and
does
not include an admission of fault, culpability or a failure to act, by or on
behalf of such indemnified party.
(c) If
the
indemnification provided for in this Section 8 is unavailable to an indemnified
party under subsection (a) of this Section 8 or insufficient to hold harmless
any such indemnified party in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then the Company shall contribute
to
the amount paid or payable by such indemnified party as a result of such losses,
damages, expenses, liabilities or claims as set forth in the Indemnification
Agreement set forth in Schedule I of the Engagement Letter. If the
indemnification provided for in this Section 8 is unavailable to an indemnified
party under subsection (b) of this Section 8 or insufficient to hold harmless
any such indemnified party in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then the Placement Agent shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, damages, expenses, liabilities or claims (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company
on
the one hand and the
21
Placement
Agent on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on
the one hand and of the Placement Agent on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Placement
Agent on the other shall be deemed to be in the same respective proportions
as
the total net proceeds from the offering received by the Company and the total
placement fees received by the Placement Agent, bear to the aggregate public
offering price of the Shares. The relative fault of the Company on the one
hand
and of the Placement Agent on the other shall be determined by reference to,
among other things, whether any action in question, including any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Company or by the Placement
Agent and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or
payable by a party as a result of the losses, damages, expenses, liabilities
and
claims referred to in this subsection shall be deemed to include any reasonable
legal or other fees or expenses reasonably incurred by such party in connection
with investigating, preparing to defend or defending any
Proceeding.
(d) The
Company and the Placement Agent agree that it would not be just and equitable
if
contribution pursuant to this Section 8 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in subsection (c) above. Notwithstanding the
provisions of this Section 8, the Placement Agent shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares placed by the Placement Agent and distributed to the public were
offered to the public exceeds the amount of any damage which the Placement
Agent
has otherwise been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The
indemnity and contribution agreements contained in this Section 8 and the
covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the Placement Agent, its partners, directors or officers
or any person (including each partner, officer or director of such person)
who
controls the Placement Agent within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the Company, its directors
or officers or any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares. The
Company and the Placement Agent agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company,
against any of the Company’s officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement, the Disclosure Package or the Prospectus.
22
9. Information
Furnished by the Placement Agent.
The
statements set forth in the ninth paragraph relating to stabilization under
the
caption “Plan of Distribution” in the Prospectus Supplement constitute the only
information furnished by or on behalf of the Placement Agent as such information
is referred to in Sections 3 and 8 hereof.
10. Notices.
Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram and, if to the Placement Agent, shall be
sufficient in all respects if delivered or sent to Banc of America Securities
LLC, 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
Xxxxxxx and, if to the Company, shall be sufficient in all respects if delivered
or sent to the Company at the offices of the Company at 00 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxx 0, Xxxxxxxx of Ireland, Attention: General Counsel with
copies to Xxxxxx Xxxxxx & Xxxxxxx llp,
00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxxxx Xxx, Esq.
11. Tax
Disclosure.
Notwithstanding any other provision of this Agreement, from the commencement
of
discussions with respect to the transactions contemplated hereby, the Company
(and each employee, representative or other agent of the Company) may disclose
to any and all persons, without limitation of any kind, the tax treatment and
tax structure (as such terms are used in Sections 6011, 6111 and 6112 of the
U.S. Code and the Treasury Regulations promulgated thereunder) of the
transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided relating to such
tax treatment and tax structure.
12. Governing
Law; Construction.
This
Agreement and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement (“Claim”),
directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of
this
Agreement.
13. Submission
to Jurisdiction.
No Claim
may be commenced, prosecuted or continued in any court other than the courts
of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the Company
and the Placement Agent consent to the jurisdiction of such courts and personal
service with respect thereto. Each of the Placement Agent and the Company (on
its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise)
in
any way arising out of or relating to this Agreement. The Company and the
Placement Agent agree that a final judgment in any such action, proceeding
or
counterclaim brought in any such court shall be conclusive and binding upon
the
Company and the Placement Agent and may be enforced in any other courts to
the
jurisdiction of which either the Company or the Placement Agent is or may be
subject, by suit upon such judgment.
14. Parties
at Interest.
The
Agreement herein set forth has been and is made solely for the benefit of the
Placement Agent and the Company and to the extent provided in Section 8
hereof any person or entity entitled to indemnification thereunder, and their
respective successors, assigns, heirs, personal representatives and executors
and administrators. No other
23
person,
partnership, association or corporation (including a purchaser, as such
purchaser, from the Placement Agent) shall acquire or have any right under
or by
virtue of this Agreement.
15. Counterparts.
This
Agreement may be signed by the parties in one or more counterparts, which
together shall constitute one and the same agreement among the parties.
16. Successors
and Assigns.
This
Agreement shall be binding upon the Placement Agent and the Company and their
successors and assigns and any successor or assign of the Company’s and the
Placement Agent’s respective businesses and/or assets.
17. Engagement
Letter.
Except
to the extent specifically stated herein, the Engagement Letter shall remain
in
full force and effect in accordance with its terms.
[Signatures
on the next page.]
24
If
the
foregoing correctly sets forth the understanding between the Company and the
Placement Agent, please so indicate in the space provided below for that
purpose, whereupon this agreement and your acceptance shall constitute a binding
agreement between the Company and the Placement Agent.
Very
truly
yours,
AMARIN
CORPORATION PLC
By:
/s/
Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
CFO
Accepted
and agreed to as of the
date
first
above written, on
behalf
of
itself
BANC
OF
AMERICA SECURITIES LLC
By:
/s/Xxxx Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title:
Managing Director
25
SCHEDULE
A
None.
SCHEDULE
B
AMARIN
CORPORATION PLC
8,965,600
Ordinary Shares
(Par
Value
₤0.05 Per Share)
1. The
price
per Share, determined as provided in Section 1, shall be
$2.09.
2. The
Placement Agent shall receive an amount equal to 6% of gross proceeds on sales
to Investors in the United States.
3. This
transaction represents an immediate increase in net tangible book value of
$0.16
per ordinary share to existing stockholders and an immediate dilution in net
tangible book value of $1.63 per ordinary share to new investors.
SCHEDULE
C
Specified
Investors
[Names
redacted]
SCHEDULE
D
Subsidiaries
|
Name
|
Percent
Owned
|
Jurisdiction
of Incorporation
|
|
Amarin
Pharmaceuticals Ireland Limited
|
100%
|
Ireland
|
|
Amarin
Neuroscience Limited
|
100%
|
Scotland
|
|
Amarin
Finance Limited
|
100%
|
Bermuda
|
Exhibit
A
[Exhibit
Redacted]
Exhibit
B
[Exhibit
Redacted]
Exhibit
C
[Exhibit
Redacted]
Exhibit
D
[Exhibit
Redacted]
Exhibit
E
[Exhibit
Redacted]
Exhibit
F
[Exhibit
Redacted]
Exhibit
G
[Exhibit
Redacted]
