SECURITIES PURCHASE AGREEMENT
This
SECURITIES PURCHASE AGREEMENT (this “Agreement”),
dated
as of December 16, 2005, is made by and among Amarin Corporation plc, a company
incorporated under the laws of England and Wales (the “Company”),
and
the purchasers listed on Exhibit A hereto, together with their permitted
transferees (each, a “Purchaser”
and
collectively, the “Purchasers”).
RECITALS:
A. The
Company and the Purchasers are executing and delivering this Agreement in
reliance upon the exemption from the registration requirements of the Securities
Act afforded by Section 4(2) thereof and/or Regulation D or Regulation S
thereunder.
B. The
Purchasers desire to purchase and the Company desires to sell, upon the terms
and conditions stated in this Agreement, Ordinary Shares (as defined below)
and
Warrants (as defined below) in an aggregate amount of up to
US$27,000,000.
C. The
capitalized terms used herein and not otherwise defined have the meanings given
them in Article 7.
AGREEMENT
In
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Company and the Purchasers (severally and not jointly)
hereby agree as follows:
ARTICLE
1
PURCHASE
AND SALE OF SECURITIES
SECTION
1.1. Purchase
and Sale of Securities.
At the
Closing, the Company will issue and sell to each Purchaser, and each Purchaser
will purchase from the Company the number of Ordinary Shares (the “Shares”)
and
the number of the warrants to purchase Ordinary Shares (substantially in the
form attached as Exhibit B hereto) (the “Warrants”)
set
forth opposite such Purchaser’s name on Exhibit A hereto (the Shares and
Warrants referred to collectively as the “Securities”).
The
purchase price for each unit of the Securities shall be US$1.01 (the
“Purchase
Price”)
(representing the product of (i) the volume weighted average price of the
American Depositary Shares of the Company (the “ADSs”)
as
reported on Nasdaq (symbol “AMRN”) for the ten trading day period up to and
including the date hereof (the “VWAP”)
and
(ii) 0.85). For each one Share purchased by a Purchaser, such Purchaser shall
receive a Warrant to purchase 0.35 of an Ordinary Share at an exercise price
per
share equal to US$1.43 (representing 120% of the VWAP).
SECTION
1.2. Payment.
At or
prior to the Closing, each Purchaser will pay the aggregate Purchase Price
set
forth opposite its name on Exhibit A hereto by wire transfer of immediately
available funds to the Escrow Agent in accordance with wire instructions
provided by the Company to the Purchasers prior to the Closing. The Company
will
instruct its registrar to deliver to each Purchaser, on an expedited basis,
a
certificate evidencing the number of Shares set forth on Exhibit A in the name
of such Purchaser and will deliver Warrants to purchase the Warrant Shares
against delivery of the aggregate Purchase Price on the Closing
Date.
SECTION
1.3. Closing
Date.
The
closing of the transaction contemplated by this Agreement (the “Closing”)
will
take place on December 21, 2005 (the “Closing
Date”)
at the
offices of Xxxxxx Xxxxxx & Xxxxxxx LLP,
00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 or at such other time and place as shall
be agreed upon by the Company and Purchasers hereunder of a majority in interest
of the Securities.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Except
as
specifically contemplated by this Agreement or as set forth in the SEC Documents
or the Disclosure Schedules, which Disclosure Schedules are attached hereto
and
shall be deemed a part hereof, the Company hereby represents and warrants as
follows:
SECTION
2.1. Organization
and Qualification.
The
Company and each Subsidiary are duly incorporated and validly existing under
the
laws of the jurisdiction of incorporation or formation, with the requisite
corporate power and authority under such laws to conduct its business as
currently conducted as disclosed in the SEC Documents. The Company has corporate
power and authority to do business in each jurisdiction in which the nature
of
the business conducted by it or property owned by it makes such qualification
necessary, except where the failure to be so authorized would not reasonably
be
expected to have a Material Adverse Effect. The Company has no Subsidiaries
other than as disclosed in the SEC Documents which, in each case, is wholly
owned by the Company.
SECTION
2.2. Authorization;
Enforcement.
The
Company has all requisite corporate power and authority to enter into and to
perform its obligations under this Agreement, to consummate the transactions
contemplated hereby and to issue the Securities in accordance with the terms
hereof. The execution, delivery and performance of this Agreement by the Company
and the consummation by it of the transactions contemplated hereby (including
the issuance of the Securities) have been duly authorized by the Company’s Board
of Directors and no further consent or authorization of the Company, its Board
of Directors, or its shareholders is required. This Agreement has been duly
executed by the Company and, when delivered in accordance with the terms hereof,
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as enforceability
may
be limited by applicable bankruptcy, insolvency, reorganization, or moratorium
or similar laws affecting creditors’ and contracting parties’ rights generally
and except as enforceability may be subject to general principles of equity
(including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing) and except as rights to indemnity and contribution
may
be limited by applicable laws or public policy underlying such
laws.
SECTION
2.3. Capitalization.
The
capitalization of the Company is as set forth in Schedule 1 of the Disclosure
Schedules. All of the issued shares of capital stock of the Company are validly
issued and fully paid. Except as a result of the purchase and sale of the
Securities and as set forth in the SEC Documents and Schedule 1, there are
no
outstanding options, warrants, rights to subscribe to, or securities, rights
or
obligations convertible into, or giving any person any right to subscribe for
or
acquire, any Ordinary Shares or any options, warrants, rights or other
instruments convertible into or exchangeable for, Ordinary Shares. The Company’s
Memorandum of Association and Articles of Association (the “Memorandum
and Articles of Association”),
as in
effect on the date hereof, are filed as exhibits to the SEC
Documents.
SECTION
2.4. Issuance
of Securities.
The
Shares and all of the Ordinary Shares to be issued upon exercise of the Warrants
(the “Warrant
Shares”)
are
within the authorized share capital of the Company and, upon issuance in
accordance with the terms of this Agreement (and in case of the
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Warrant
Shares, the Warrants), will be validly issued and fully paid and, except for
antidilution adjustments described in Schedule 2 of the Disclosure Schedules,
will not be subject to preemptive rights or other similar rights of shareholders
of the Company.
SECTION
2.5. No
Conflicts; Government Consents and Permits.
(a) The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby (including
the issuance of the Securities) will not (i) conflict with or result in a
violation of any provision of its Memorandum and Articles of Association or
require the approval of the Company’s shareholders, (ii) violate or conflict
with, or result in a material breach of any provision of, or constitute a
default under, any agreement, indenture, or instrument to which the Company
or
its Subsidiary is a party, or (iii) subject to receipt of Required Approvals
(as
defined below), result in a violation of any applicable law, rule, regulation,
order, judgment or decree (including United States federal and state securities
laws and regulations and regulations of any self-regulatory organizations to
which the Company or its securities are subject) applicable to the Company
or
its Subsidiary, except in the case of clauses (ii) and (iii) only, for such
conflicts, breaches, defaults, and violations as would not reasonably be
expected to have a Material Adverse Effect.
(b) Assuming
the accuracy of each of the Purchaser’s representations and warranties in
Article 3 hereof, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court
or
governmental agency or any regulatory or self regulatory agency in order for
it
to execute, deliver or perform any of its obligations under this Agreement
in
accordance with the terms hereof, or to issue and sell the Securities in
accordance with the terms hereof, other than such as have been made or obtained,
and except for (i) the registration of the Shares and Warrant Shares under
the
Securities Act pursuant to Section 6 hereof, (ii) any filings required to be
made under English law or U.S. federal or state or foreign securities laws,
and
(iii) any required filings or notifications regarding the issuance or listing
of
additional shares with Nasdaq (collectively, the “Required
Approvals”).
(c) The
Company and each Subsidiary have all franchises, permits, licenses, and any
similar authority necessary for the conduct of its business as now being
conducted by it as described in the SEC Documents, except for such franchise,
permit, license or similar authority, the lack of which would not reasonably
be
expected to have a Material Adverse Effect (“Material
Permits”).
Neither the Company nor its Subsidiary has received any actual notice of any
proceeding relating to revocation or modification of any Material
Permit.
SECTION
2.6. SEC
Documents, Financial Statements.
The
Company has filed all reports required to be filed by it under the Exchange
Act
for the two years preceding the date hereof (all of the foregoing filed prior
to
the date hereof and all exhibits included therein and financial statements
and
schedules thereto and documents (other than exhibits) incorporated by reference
therein, being hereinafter referred to as the “SEC
Documents”)
on a
timely basis or has received a valid extension of such time of filing and has
filed any such SEC Document prior to the expiration of any such extension.
As of
their respective dates, the SEC Documents complied in all material respects
with
the requirements of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. As of their respective dates, the
Financial Statements and the related notes complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. The Financial Statements and the
related notes have been prepared in accordance with
-3-
accounting
principles generally accepted in the United Kingdom, consistently applied,
during the periods involved (except (i) as may be otherwise indicated in the
Financial Statements or the notes thereto, or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes, may be
condensed or summary statements or may conform to the SEC’s rules and
instructions for annual reports on Form 20-F) and fairly present in all material
respects the consolidated financial position of the Company as of the dates
thereof and the consolidated results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
SECTION
2.7. [Reserved]
SECTION
2.8. Accounting
Controls.
Except
as described or referred to in the SEC Documents, the Company maintains a system
of accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management’s general or specific
authorization, (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles as applied in the United Kingdom and to maintain accountability
for
assets, (iii) access to assets is permitted only in accordance with management’s
general or specific authorization, and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
SECTION
2.9. Absence
of Litigation.
Except
as described or referred to in the SEC Documents, as of the date hereof, there
is no action, suit, proceeding or investigation before or by any court, public
board, government agency, self-regulatory organization or body pending or,
to
the Company’s knowledge, threatened against the Company or any Subsidiary that
if determined adversely to the Company or such Subsidiary would reasonably
be
expected to have a Material Adverse Effect. Neither the Company or any
Subsidiary, nor any director or officer thereof, is or has been the subject
of
any action involving a claim of violation of or liability under federal or
state
securities laws or a claim of breach of fiduciary duty relating to the Company.
There has not been, and to the knowledge of the Company, there is not pending
or
contemplated, any investigation by the SEC involving the Company or any
Subsidiary or any director or officer of thereof. The Company has not received
any stop order or other order suspending the effectiveness of any registration
statement filed by the Company under the Exchange Act or the Securities Act
and,
to the Company’s knowledge, the SEC has not issued any such order.
SECTION
2.10. Intellectual
Property Rights.
The
Company and each Subsidiary have, or have rights to use, all patents, patent
applications, trademarks, trademark applications, service marks, trade names,
copyrights, licenses and other similar rights necessary or material for use
in
connection with their respective businesses as currently being conducted as
described in the SEC Documents and which the failure to so have would not
reasonably be expected to have a Material Adverse Effect (collectively, the
“Intellectual
Property Rights”).
Neither the Company nor any Subsidiary has received a written notice that the
Intellectual Property Rights used by the Company or such Subsidiary violates
or
infringes upon the rights of any person. Except as set forth in the SEC
Documents, to the knowledge of the Company, all such Intellectual Property
Rights are enforceable and there is no existing infringement by another person
of any of the Intellectual Property Rights.
SECTION
2.11. Placement
Agent.
The
Company has taken no action that would give rise to any claim by any person
for
brokerage commissions, placement agent’s fees or similar payments relating to
this Agreement or the transactions contemplated hereby, except for dealings
with
the Placement Agent and the Finders and except pursuant to the commissions
and
fees which will be paid by the Company.
-4-
SECTION
2.12. Investment
Company.
The
Company is not and, after giving effect to the offering and sale of the
Securities, will not be an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”).
The
Company shall conduct its business in a manner so that it will not become
subject to the Investment Company Act.
SECTION
2.13. No
Material Adverse Change.
Since
December 31, 2004, except as described or referred to in the SEC Documents
and
except for cash expenditures in the ordinary course of business, there has
not
been any change in the assets, business, properties, financial condition or
results of operations of the Company that would reasonably be expected to have
a
Material Adverse Effect. Since December 31, 2004, except as described or
referred to in the SEC Documents, (i) there has not been any dividend or
distribution of any kind declared, set aside for payment, paid or made by the
Company on any class of capital stock, (ii) the Company has not sustained any
material loss or interference with the Company’s business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator
or governmental or regulatory authority, and (iii) the Company has not incurred
any material liabilities except in the ordinary course of business.
SECTION
2.14. Nasdaq
Capital Market.
The
ADSs are listed on the Nasdaq Capital Market, and, to the Company’s knowledge,
there are no proceedings to revoke or suspend such listing. Except as described
or referred to in the SEC Documents or the Disclosure Schedules, the Company
is
in compliance with the requirements of Nasdaq Capital Market.
SECTION
2.15. Acknowledgment
Regarding Purchasers’ Purchase of Securities.
The
Company acknowledges and agrees that each Purchaser is acting solely in the
capacity of an arm’s length purchaser with respect to this Agreement and the
transactions contemplated hereby. The Company further acknowledges that no
Purchaser is acting as a financial advisor or fiduciary of the Company (or
in
any similar capacity with respect to the Company) with respect to this Agreement
and the transactions contemplated hereby and any advice given by any Purchaser
or any of their respective representatives or agents to the Company in
connection with this Agreement and the transactions contemplated hereby is
merely incidental to such Purchaser’s purchase of the Securities. The Company
further represents to each Purchaser that the Company’s decision to enter into
this Agreement has been based on the independent evaluation of the transactions
contemplated hereby by the Company and its representatives.
SECTION
2.16. Accountants.
PricewaterhouseCoopers LLP, which the Company expects will express its opinion
with respect to the audited financial statements to be included as a part of
the
Registration Statement prior to the filing of the Registration Statement, are
an
independent public accounting firm as required by the Securities
Act.
SECTION
2.17. Insurance.
The
Company and each Subsidiary are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as the Company
believes are prudent and customary for a company (i) in the business (currently
limited to the clinical trial stage) and locations in which the Company and
each
Subsidiary are engaged and (ii) with the resources of the Company and each
Subsidiary. The Company has not received any written notice that the Company
or
any Subsidiary will not be able to renew its existing insurance coverage as
and
when such coverage expires. The Company believes it will be able to obtain
similar coverage at reasonable cost from similar insurers as may be necessary
to
continue its business.
SECTION
2.18. Foreign
Corrupt Practices.
Since
January 1, 2004, neither the Company, nor to the Company’s knowledge, any
director, officer, agent, employee or other person acting on behalf of the
Company has, in the course of its actions for, or on behalf of, the Company
(i)
used any corporate funds for any unlawful contribution, gift, entertainment
or
other unlawful expenses relating to
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political
activity; (ii) made any direct or indirect unlawful payment to any foreign
or
domestic government official or employee from corporate funds; (iii) violated
or
is in violation of in any material respect any provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment to any
foreign or domestic government official or employee.
SECTION
2.19. No
Integration; General Solicitation.
Neither
the Company nor any of its affiliates, nor any person acting on its or their
behalf (other than the Placement Agent as to which the Company makes no
representation) has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under circumstances that
would cause this offering of the Securities to be integrated with prior offering
by the Company for purposes of the Securities Act or any applicable shareholder
approval provisions. Neither the Company nor any of its affiliates, nor any
person acting on its or their behalf (other than the Placement Agent as to
which
the Company makes no representation), has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company has
offered the Securities for sale only to the Purchasers and certain other
institutional “accredited investors” within the meaning of paragraphs (1), (2),
(3) or (7) of Rule 501 under the Securities Act and Persons who are not “U.S.
persons” within the meaning of Rule 902(k) under the Securities
Act.
SECTION
2.20. No
Registration Rights.
No
person has the right to (i) prohibit the Company from filing the Registration
Statement or (ii) require the Company to register any securities for sale under
the Securities Act by reason of the filing of the Registration Statement. The
granting and performance of the registration rights under this Agreement will
not violate or conflict with, or result in a breach of any provision of, or
constitute a default under, any agreement, indenture, or instrument to which
the
Company or any Subsidiary is a party.
SECTION
2.21. Taxes.
The
Company has filed (or has obtained an extension of time within which to file)
all necessary federal, state and foreign income and franchise tax returns and
has paid all taxes shown as due on such tax returns, except where the failure
to
so file or the failure to so pay would not reasonably be expected to have a
Material Adverse Effect.
SECTION
2.22. Real
and Personal Property.
Except
as referred to or described in the SEC Documents, the Company and each
Subsidiary have good and marketable title to, or have valid rights to lease
or
otherwise use, all items of real and personal property that are material to
the
business of the Company and its Subsidiary, free and clear of all liens,
encumbrances, claims and defects and imperfections of title except those that
(i) do not materially interfere with the use of such property by the Company
and
the Subsidiary or (ii) would not reasonably be expected to have a Material
Adverse Effect.
SECTION
2.23. Application
of Takeover Protections.
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not impose any restriction on any
Purchaser, or create in any party (including any current shareholder of the
Company) any rights, under any share acquisition, business combination, poison
pill (including any distribution under a rights agreement), or other similar
anti-takeover provisions under the Company’s charter documents or the laws of
England and Wales.
SECTION
2.24. No
Manipulation of Stock.
The
Company has not taken, nor will it take, directly or indirectly any action
designed to stabilize or manipulate the price of the ADSs or any security of
the
Company to facilitate the sale or resale of any of the Shares.
SECTION
2.25. Related
Party Transactions.
Except
with respect to the transactions (i) that are not required to be disclosed
or
(ii) contemplated hereby to the extent an affiliate of any director
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or
officer of the Company purchases Securities hereunder, all transactions that
have occurred between or among the Company, on the one hand, and any of its
officers or directors, or any affiliate or affiliates of any such officer or
director, on the other hand, prior to the date hereof have been disclosed in
the
SEC Documents.
SECTION
2.26. Form
F-3 Eligibility.
The
Company is eligible to register the resale of its Ordinary Shares in the form
of
ADSs by the Purchasers under Form F-3 promulgated under the Securities Act,
and
the Company hereby covenants and agrees to use commercially reasonable efforts
to maintain its eligibility to use Form F-3 until the Registration Statement
covering the resale of the Shares have been filed with, and declared effective
by, the SEC.
ARTICLE
3
PURCHASER’S
REPRESENTATIONS AND WARRANTIES
Each
Purchaser represents and warrants to the Company, jointly and not severally,
with respect to itself and its purchase hereunder, that:
SECTION
3.1. Investment
Purpose.
The
Purchaser is purchasing the Securities for its own account for investment and
not with a present view toward the public sale or distribution thereof and
has
no intention of selling or distributing any of such Securities or any
arrangement or understanding with any other persons regarding the sale or
distribution of such Securities except in accordance with the provisions of
Article 6 and except as would not result in a violation of the Securities Act.
The Purchaser will not, directly or indirectly, offer, sell, pledge, transfer
or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the Securities except in accordance with
the
provisions of Article 6 or pursuant to and in accordance with the Securities
Act.
SECTION
3.2. Purchaser
Status; Questionnaires.
At the
time Purchaser was offered the Securities, it was, and at the date hereof it
is,
and on each date on which it exercises any Warrants, it will be either: (i)
an
institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act or (ii) a person who is not a “U.S. person” (as
defined in Rule 902(k) under the Securities Act (a “Non-US
Person”).
The
Registration questionnaire submitted by Purchaser to the Company in connection
with its purchase of the Securities was accurate and correct when delivered
and
is accurate and correct as of the date hereof.
SECTION
3.3. Reliance
on Exemptions.
The
Purchaser understands that the Securities are being offered and sold to it
in
reliance upon specific exemptions from or non-application of the registration
requirements of United States federal and state securities laws and that the
Company is relying upon the truth and accuracy of, and the Purchaser’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Purchaser set forth herein in order to determine
the
availability of such exemptions and the eligibility of the Purchaser to acquire
the Securities.
SECTION
3.4. Information.
The
Purchaser acknowledges that is has been afforded (i) the opportunity to ask
such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Securities and the merits and risks of investing in the
Securities; (ii) access to information about the Company and its financial
condition, results of operations, businesses, properties, management and
prospects sufficient to enable it to evaluate its investment, including, without
limitation, the Company’s SEC Documents and Disclosure Schedules, and the
Purchaser has had the opportunity to review the SEC Documents and Disclosure
Schedules; and (iii) the opportunity to obtain such additional information
that
the Company
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possesses
or can acquire without unreasonable effort or expense that is necessary to
make
an informed investment decision with respect to the investment.
SECTION
3.5. Acknowledgement
of Risk.
(a) The
Purchaser acknowledges and understands that its investment in the Securities
involves a significant degree of risk, including, without limitation, (i) the
Company has a history of operating losses and requires substantial funds in
addition to the proceeds from the sale of the Securities; (ii) an investment
in
the Company is speculative, and only purchasers who can afford the loss of
their
entire investment should consider investing in the Company and the Securities;
(iii) the Purchaser may not be able to liquidate its investment; (iv)
transferability of the Securities is limited; (v) in the event of a disposition
of the Securities, the Purchaser could sustain the loss of its entire
investment; and (vi) the Company has not paid any dividends on its Ordinary
Shares since inception and does not anticipate the payment of dividends in
the
foreseeable future. Such risks are more fully set forth in the SEC Documents
and
Disclosure Schedules;
(b) The
Purchaser is able to bear the economic risk of holding the Securities for an
indefinite period, and has knowledge and experience in financial and business
matters such that it is capable of evaluating the risks of the investment in
the
Securities; and
(c) The
Purchaser has, in connection with the Purchaser’s decision to purchase
Securities, not relied upon any representations or other information (whether
oral or written) other than as set forth in the representations and warranties
of the Company contained herein and the SEC Documents and Disclosure Schedules,
and the Purchaser has, with respect to all matters relating to this Agreement
and the offer and sale of the Securities, relied solely upon the advice of
such
Purchaser’s own counsel and has not relied upon or consulted any counsel to the
Placement Agent or counsel to the Company.
SECTION
3.6. Governmental
Review.
The
Purchaser understands that no United States federal or state or foreign agency
or any other government or governmental agency has passed upon or made any
recommendation or endorsement of the Securities or an investment
therein.
SECTION
3.7. Transfer
or Resale.
The
Purchaser understands that:
(a) the
Securities have not been and will not be registered under the Securities Act
(other than as contemplated in Article 6) or any applicable state securities
laws and, consequently, the Purchaser may have to bear the risk of owning the
Securities for an indefinite period of time because the Securities may not
be
transferred unless (i) the resale of the Securities is registered pursuant
to an
effective registration statement under the Securities Act, as contemplated
in
Article 6; or (ii) the Purchaser has delivered to the Company an opinion of
counsel to the Purchaser (in form, substance and scope reasonably acceptable
to
the Company) to the effect that the Securities to be sold or transferred may
be
sold or transferred pursuant to an exemption from such registration;
and
(b) except
as
set forth in Article 6, neither the Company nor any other person is under any
obligation to register the resale of the Shares or the Warrant Shares under
the
Securities Act or any state or foreign securities laws or to comply with the
terms and conditions of any exemption thereunder.
-8-
SECTION
3.8. Legends.
(a) The
Purchaser understands the certificates representing the Securities will bear
a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of the certificates for such
Securities):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "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) AN
EXEMPTION FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS IS AVAILABLE.
AS
A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, THE COMPANY MAY
REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF COUNSEL REASONABLY 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 (1) 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 AND (2) SUCH SECURITIES ARE NOT “RESTRICTED SECURITIES” WITHIN THE MEANING
OF RULE 144 UNDER THE SECURITIES ACT.
(b) The
Purchaser may request that the Company remove, and the Company agrees to
authorize the removal of any legend from the Shares and Warrant Shares (i)
following any sale of the Shares or Warrant Shares pursuant to an effective
Registration Statement, or (ii) if such Shares or Warrant Shares are eligible
for sale under Rule 144(k) under the Securities Act. Following the time a legend
is no longer required for the Shares or Warrant Shares hereunder, the Company
will, no later than seven Business Days following the delivery by a Purchaser
to
the Company or the Company’s registrar of a legended certificate representing
such Securities, accompanied by such additional information as the Company
or
the Company's registrar may reasonably request, deliver or cause to be delivered
to such Purchaser a certificate representing such Securities that is free from
all restrictive and other legends.
SECTION
3.9. Authorization;
Enforcement.
The
Purchaser has the requisite power and authority to enter into this Agreement
and
to consummate the transactions contemplated hereby. The Purchaser has taken
all
necessary action to authorize the execution, delivery and performance of this
Agreement. Upon the execution and delivery of this Agreement, this Agreement
shall constitute a valid and binding obligation of the Purchaser enforceable
in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as
enforceability may be subject to general principles of equity and except as
rights to indemnity and contribution may be limited by applicable securities
laws or public policy underlying such laws.
SECTION
3.10. Residency.
The
Purchaser is a resident of the jurisdiction set forth immediately below such
Purchaser’s name on the signature pages hereto.
SECTION
3.11. No
Short Sales.
During
the last thirty (30) days prior to the date hereof, neither such Purchaser
nor
any Affiliate of such Purchaser, foreign or domestic, has, directly or
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indirectly,
effected or agreed to effect any "short sale" (as defined in Rule 200 under
Regulation SHO), whether or not against the box, established any "put equivalent
position" (as defined in & nbsp; Rule 16a-1(h) under the Exchange Act) with
respect to the Ordinary Shares, borrowed or pre-borrowed any Ordinary Shares,
or
granted any other right (including, without limitation, any put or call option)
with respect to the Ordinary Shares or with respect to any security that
includes, relates to or derived any significant part of its value from the
Ordinary Shares or otherwise sought to hedge its position in the Securities
(each, a "Prohibited
Transaction").
Prior
to the earliest to occur of (i) the termination of this Agreement, (ii) the
date
that the Registration Statement becomes effectiveor (iii) the Required
Effectiveness Date, such Purchaser shall not, and shall cause its Affiliates
not
to, engage, directly or indirectly, in (a) a Prohibited Transaction nor (b)
any
sale, assignment, pledge, hypothecation, put, call, or other transfer of any
of
the Ordinry Shares, warrants or other securities of the Company acquired
hereunder. Each Purchaser acknowledges that the representations, warranties
and
covenants contained in this Section 3.11 are being made for the benefit of
the
Purchasers as well as the Company and that each of the other Purchasers shall
have an independent right to assert any claims against such Purchaser arising
out of any breach or violation of the provisions of this Section
3.11.
SECTION
3.12. Acknowledgements
Regarding Placement Agent; Solicitation.
The
Purchaser acknowledges that the Placement Agent is acting as the lead placement
agent on a “best efforts” basis for the Securities being offered hereby and will
be compensated by the Company for acting in such capacity. The Purchaser
represents that (i) the Purchaser was contacted regarding the sale of the
Securities by the Placement Agent (or an authorized agent or representative
thereof) with whom the Purchaser entered into a confidentiality agreement,
(ii)
no Securities were offered or sold to the Purchaser by means of any form of
general solicitation or general advertising, and (iii) to Purchaser's knowledge,
neither the Company, the Placement Agent, nor any director, officer, agent,
employee or other person acting on behalf of the Company has, in the course
of
contacting the Purchaser or its representatives with respect to the offer or
sale of the Securities (a) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; (b) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (d)
violated or is in violation of in any material respect any provision of the
U.S.
Foreign Corrupt Practices Act of 1977, as amended; or (d) made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment
to
any foreign or domestic government official or employee.
SECTION
3.13. Additional
Representations by Non-US Persons.
If the
Purchaser is a Non-US Person, the Purchaser further represents and warrants
that: (i) its principal address is outside of the United States; and (ii) the
Purchaser was located outside the United States at the time any offer to buy
the
Securities was made to it and at the time the buy order was originated by the
Purchaser. If the Purchaser is a Non-US Person, the Purchaser hereby expressly
agrees not to engage in hedging transactions with regard to the Securities
unless in compliance with the Securities Act and the terms of this
Agreement.
ARTICLE
4
COVENANTS
SECTION
4.1. Reporting
Status.
The
Company’s Ordinary Shares are registered under Section 12 of the Exchange Act.
During the Registration Period, the Company agrees to use commercially
reasonable efforts to timely file all documents with the SEC, and the Company
will not terminate its status as an issuer required to file reports under the
Exchange Act even if the Exchange Act or the rules and regulations thereunder
would permit such termination.
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SECTION
4.2. Expenses.
The
Company and each Purchaser is liable for, and will pay, its own expenses
incurred in connection with the negotiation, preparation, execution and delivery
of this Agreement, including, without limitation, attorneys’ and consultants’
fees and expenses.
SECTION
4.3. Financial
Information.
The
financial statements of the Company to be included in any documents filed with
the SEC will be prepared in accordance with accounting principles generally
accepted in the United Kingdom, consistently applied (except as may be otherwise
indicated in such financial statements or the notes thereto and will fairly
present in all material respects the consolidated financial position of the
Company and consolidated results of its operations and cash flows as of, and
for
the periods covered by, such financial statements (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
SECTION
4.4. Securities
Laws Disclosure; Publicity.
On
December 19, 2005, the Company shall issue a press release announcing the
signing of this Agreement and describing the terms of the transactions
contemplated by this Agreement. On or before December 20, 2005, the Company
shall submit a Current Report on Form 6-K with the SEC describing the terms
of
the transactions contemplated by this Agreement and including as an exhibit
to
such Current Report on Form 6-K this Agreement, in the form required by the
Exchange Act. The Company shall not otherwise publicly disclose the name of
any
Purchaser, or include the name of any Purchaser in any filing with the
Commission (other than the Registration Statement and any exhibits to filings
made in respect of this transaction in accordance with periodic filing
requirements under the Exchange Act) or any regulatory agency, without the
prior
written consent of such Purchaser, except to the extent such disclosure is
required by law or regulations.
SECTION
4.5. Sales
by the Purchasers.
Each
Purchaser agrees that it will comply with the prospectus delivery requirements
of the Securities Act as applicable to it in connection with the sales of
Registrable Securities pursuant to the Registration Statement or otherwise
comply with the requirements for an exemption from registration under the
Securities Act and the rules and regulations promulgated thereunder. No
Purchaser will make any sale, transfer, pledge or other disposition of the
Securities in violation of U.S. federal or state or foreign securities laws
or
the terms of this Agreement.
SECTION
4.6. Reservation
Ordinary Shares.
As of
the date hereof, the Company has sufficient authorized share capital, and the
Company shall continue to have sufficient authorized share capital for the
purpose of enabling the Company to issue Shares pursuant to this
Agreement.
ARTICLE
5
CONDITIONS
TO CLOSING
SECTION
5.1. Conditions
to Obligations of the Company.
The
Company’s obligation to complete the purchase and sale of the Securities and
deliver such stock certificate(s) and Warrants to each Purchaser is subject
to
the fulfillment or waiver as of the Closing Date of the following
conditions:
(a) Receipt
of Funds. The Escrow Agent shall have received immediately available funds,
in
US dollars, in the full amount of the purchase price for the Securities being
purchased hereunder as set forth opposite such Purchaser’s name on Exhibit A
hereto.
(b) Representations
and Warranties. The representations and warranties made by each Purchaser in
Article 3 shall be true and correct in all material respects when made and
as of
the Closing Date.
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(c) Covenants.
All covenants, agreements and conditions contained in this Agreement to be
performed by the Purchasers on or prior to the Closing Date shall have been
performed or complied with in all material respects.
(d) [Reserved].
(e) [Reserved].
(f) Absence
of Litigation. No proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or materially delay
the Closing, shall have been instituted, threatened or be pending before any
court, arbitrator, governmental body, agency or official.
(g) No
Governmental Prohibition. The sale of the Securities by the Company shall not
be
prohibited by any law or governmental order or regulation.
SECTION
5.2. Conditions
to Purchasers’ Obligations at the Closing.
Each
Purchaser’s obligation to complete the purchase and sale of the Securities is
subject to the fulfillment or waiver as of the Closing Date of the following
conditions:
(a) Representations
and Warranties. The representations and warranties made by the Company in
Article 2 shall be true and correct in all material respects when made and
as of
the Closing Date.
(b) Covenants.
All covenants, agreements and conditions contained in this Agreement to be
performed by the Company on or prior to the Closing Date shall have been
performed or complied with in all material respects.
(c) [Reserved].
(d) Legal
Opinions. The Company shall have delivered to the Purchasers an opinion, dated
as of the Closing Date, from each of (i) Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx
Xxxxxx LLP, UK counsel to the Company, (ii) Xxxxxx Xxxxxx & Xxxxxxx
llp,
US
counsel to the Company and (iii) Xxxxxxxx Xxxx, General Counsel of the Company,
in each case in substantially the form attached hereto as Exhibits C, D and
E
hereto, respectively.
(e) Registrar
Instructions. The Company shall have delivered to its registrar irrevocable
instructions to issue to each Purchaser, on an expedited basis, one or more
certificates representing the number of Shares set forth opposite such
Purchaser’s name on Exhibit A hereto, and Warrants to purchase the Warrant
Shares.
(f) [Reserved].
(g) Absence
of Litigation. No proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or materially delay
the Closing, shall have been instituted, threatened or be pending before any
court, arbitrator, governmental body, agency or official.
(h) No
Governmental Prohibition. The sale of the Shares by the Company shall not be
prohibited by any law or governmental order or regulation.
-12-
ARTICLE
6
REGISTRATION
RIGHTS
SECTION
6.1. As
soon
as reasonably practicable, but in no event later than 45 days after the Closing
Date (the “Filing
Date”),
the
Company shall file a registration statement covering the resale of the
Registrable Securities (the “Registration
Statement”)
with
the SEC, shall respond to all SEC comments within ten calendar days of receipt
of such comments and will use its commercially reasonable efforts to cause
the
Registration Statement to become effective under the Securities Act within
105
days after the Closing Date, or in the event of a “review” by the SEC, not later
than 150 days after the Closing Date (the “Required
Effectiveness Date”).
SECTION
6.2. All
Registration Expenses shall be borne by the Company.
All
Selling Expenses relating to the sale of securities registered by or on behalf
of Holders shall be borne by such Holders pro rata on the basis of the number
of
securities so registered.
SECTION
6.3. The
Company further agrees that, in the event that the Registration Statement (i)
has not been filed with the SEC within 45 days after the Closing Date, (ii)
has
not been declared effective by the SEC by the Required Effectiveness Date,
or
(iii) after the Registration Statement is declared effective by the SEC, is
suspended by the Company or ceases to remain continuously effective as to all
Registrable Securities for which it is required to be effective, other than,
in
each case, within the time period(s) permitted by Section 6.7(b) (each such
event referred to in clauses (i), (ii) and (iii), a “Registration
Default”),
for
all or part of any thirty-day period (a “Penalty
Period”)
during
which the Registration Default remains uncured (which initial thirty-day period
shall commence on the fifth Business Day after the date of such Registration
Default if such Registration Default has not been cured by such date), the
Company shall pay to each Purchaser 1% of such Purchaser’s aggregate purchase
price of his or her Securities for each Penalty Period during which the
Registration Default remains uncured; provided,
however, that
if a
Purchaser fails to provide the Company with any information that is required
to
be provided in the Registration Statement with respect to such Purchaser as
set
forth herein, then the commencement of the Penalty Period described above shall
be extended until two Business Days following the date of receipt by the Company
of such required information; and
provided, further,
that in
no event shall the Company be required hereunder to pay to any Purchaser
pursuant to this Agreement an aggregate amount that exceeds 10% of the aggregate
Purchase Price paid by such Purchaser for such Purchaser’s Securities. The
Company shall deliver said cash payment to the Purchaser by the fifth Business
Day after the end of such Penalty Period. If the Company fails to pay said
cash
payment to the Purchasers in full by the fifth Business Day after the end of
such Penalty Period, the Company will pay interest thereon at a rate of 12%
per
annum (or such lesser maximum amount that is permitted to be paid by applicable
law) to the Purchasers, accruing daily from the date such liquidated damages
are
due until such amounts, plus all such interest thereon, are paid in
full.
SECTION
6.4. At
its
expense the Company shall:
(a) except
for such times as the Company is permitted hereunder to suspend the use of
the
prospectus forming part of the Registration Statement, use its commercially
reasonable efforts to keep such Registration Statement continuously effective
with respect to a Holder, and to keep such Registration Statement free of any
material misstatements or omissions, until the date all Shares and Warrant
Shares held by such Holder may be sold under Rule 144 during any 90 day period.
The period of time during which the Company is required hereunder to keep the
Registration Statement effective is referred to herein as the “Registration
Period.”
(b) advise
the Holders within five Business Days:
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(i) when
the
Registration Statement or any amendment thereto has been filed with the SEC
and
when the Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of
any
request by the SEC for amendments or supplements to the Registration Statement
or the prospectus included therein or for additional information;
(iii) of
the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for such
purpose;
(iv) of
the
receipt by the Company of any notification with respect to the suspension of
the
qualification of the Registrable Securities included therein for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(v) of
the
occurrence of any event that requires the making of any changes in the
Registration Statement or the prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the statements therein (in
the case of the prospectus, in the light of the circumstances under which they
were made) not misleading;
(c) use
its
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of any Registration Statement as soon as reasonably
practicable;
(d) if
a
Holder so requests in writing, promptly furnish to each such Holder, without
charge, at least one copy of such Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if
explicitly requested, all exhibits in the form filed with the SEC;
(e) during
the Registration Period, promptly deliver to each such Holder, without charge,
as many copies of the prospectus included in such Registration Statement and
any
amendment or supplement thereto as such Holder may reasonably request in
writing; and the Company consents to the use, consistent with the provisions
hereof, of the prospectus or any amendment or supplement thereto by each of
the
selling Holders of Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by the prospectus or any amendment
or
supplement thereto;
(f) during
the Registration Period, if a Holder so requests in writing, deliver to each
Holder, without charge, (i) one copy of the following documents, other than
those documents available via XXXXX: (A) its annual report to its shareholders,
if any (which annual report shall contain financial statements audited in
accordance with generally accepted accounting principles in the United States
of
America by a firm of certified public accountants of recognized standing),
(B)
if not included in substance in its annual report to shareholders, its annual
report on Form 20-K (or similar form), (C) its definitive proxy statement with
respect to its annual meeting of shareholders, (D) each of its interim reports
to its shareholders, and, if not included in substance in its interim reports
to
shareholders, its interim report on Form 6-K (or similar form), and (E) a copy
of the full Registration Statement (the foregoing, in each case, excluding
exhibits); and (ii) if explicitly requested, all exhibits excluded by the
parenthetical to the immediately preceding clause (E);
-14-
(g) prior
to
any public offering of Registrable Securities pursuant to any Registration
Statement, promptly take such actions as may be necessary to register or qualify
or obtain an exemption for offer and sale under the securities or blue sky
laws
of such United States jurisdictions as any such Holders reasonably request
in
writing, provided that the Company shall not for any such purpose be required
to
qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service
of
process in any such jurisdiction, and do any and all other acts or things
reasonably necessary or advisable to enable the offer and sale in such
jurisdictions of the Registrable Securities covered by such Registration
Statement;
(h)
upon the
occurrence of any event contemplated by Section 6.4(b)(v) above, except for
such
times as the Company is permitted hereunder to suspend the use of the prospectus
forming part of the Registration Statement, the Company shall use its
commercially reasonable efforts to as soon as reasonably practicable prepare
a
post-effective amendment to the Registration Statement or a supplement to the
related prospectus, or file any other required document so that, as thereafter
delivered to purchasers of the Registrable Securities included therein, the
prospectus will not include any untrue statement of a material fact or omit
to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(i) otherwise
use its commercially reasonable efforts to comply in all material respects
with
all applicable rules and regulations of the SEC which could affect the sale
of
the Registrable Securities;
(j) use
its
commercially reasonable efforts to cause all Registrable Securities to be listed
on Nasdaq;
(k) use
its
commercially reasonable efforts to take all other steps necessary to effect
the
registration of the Registrable Securities contemplated hereby and to enable
the
Holders to sell Registrable Securities under Rule 144;
(l)
provide
to each Purchaser and its representatives, if requested, the opportunity to
conduct a reasonable inquiry of the Company's financial and other records during
normal business hours and make available its officers, directors and employees
for questions regarding information which such Purchaser may reasonably request
in order to conduct any due diligence obligation on its part; and
(m) permit
a
single counsel for the Purchasers to review the Registration Statement and
all
amendments and supplements thereto, within two Business Days prior to the filing
thereof with the Commission;
provided
that, in the case of clauses (l) and (m) above, the Company shall not be
required (A) to delay the filing of the Registration Statement or any amendment
or supplement thereto as a result of any ongoing diligence inquiry by or on
behalf of a Holder or to incorporate any comments to the Registration Statement
or any amendment or supplement thereto by or on behalf of a Holder if such
inquiry or comments would require a delay in the filing of such Registration
Statement, amendment or supplement, as the case may be, or (B) to provide,
and
shall not provide, each Purchaser or its representatives with material,
non-public information unless such Purchaser agrees to receive such information
and enters into a written confidentiality agreement with the Company in a form
reasonably acceptable to the Company.
-15-
SECTION
6.5. The
Holders shall have no right to take any action to restrain, enjoin or otherwise
delay any registration pursuant to Section 6.1 hereof as a result of any
controversy that may arise with respect to the interpretation or implementation
of this Agreement.
SECTION
6.6. (a)
To the
extent permitted by law, the Company shall indemnify each Holder and each person
controlling such Holder within the meaning of Section 15 of the Securities
Act,
with respect to which any registration that has been effected pursuant to this
Agreement, against all claims, losses, damages and liabilities (or action in
respect thereof), including any of the foregoing incurred in settlement of
any
litigation, commenced or threatened (subject to Section 6.6(c) below), arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement, prospectus, any amendment
or supplement thereof, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances in which they were made,
not misleading, and will reimburse each Holder and each person controlling
such
Holder, for reasonable legal and other out-of-pocket expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action as incurred; provided that the Company will not
be
liable in any such case to the extent that any untrue statement or omission
or
allegation thereof is made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder for use
in
preparation of such Registration Statement, prospectus, amendment or supplement;
provided further that the Company will not be liable in any such case where
the
claim, loss, damage or liability arises out of or is related to the failure
of
such Holder to comply with the covenants and agreements contained in this
Agreement respecting sales of Registrable Securities, and except that the
foregoing indemnity agreement is subject to the condition that, insofar as
it
relates to any such untrue statement or alleged untrue statement or omission
or
alleged omission made in the preliminary prospectus but eliminated or remedied
in the amended prospectus on file with the SEC at the time the Registration
Statement becomes effective or in the amended prospectus filed with the SEC
pursuant to Rule 424(b) or in the prospectus subject to completion under Rule
434 of the Securities Act, which together meet the requirements of Section
10(a)
of the Securities Act (the “Final
Prospectus”),
such
indemnity shall not inure to the benefit of any such Holder or any controlling
person of such Holder, if a copy of the Final Prospectus furnished by the
Company to the Holder for delivery was not furnished to the person or entity
asserting the loss, liability, claim or damage at or prior to the time such
furnishing is required by the Securities Act and the Final Prospectus would
have
cured the defect giving rise to such loss, liability, claim or
damage.
(b) Each
Holder will severally, and not jointly, indemnify the Company, each of its
directors and officers, and each person who controls the Company within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened (subject
to
Section 6.6(c) below), arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in the Registration
Statement, prospectus, or any amendment or supplement thereof, or based on
any
omission (or alleged omission) to state therein a material fact required to
be
stated therein or necessary to make the statements therein not misleading,
in
the light of the circumstances in which they were made, and will reimburse
the
Company, such directors and officers, and each person controlling the Company
for reasonable legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action as incurred, in each case to the extent, but only to the extent, that
such untrue statement or omission or allegation thereof is made in reliance
upon
and in conformity with written information furnished to the Company by or on
behalf of the Holder for use in preparation of the Registration Statement,
prospectus, amendment or supplement; provided that the indemnity shall not
apply
to the extent that such claim, loss, damage or liability results from the fact
that a current copy of the prospectus was not made available to the person
or
entity asserting the loss, liability, claim or damage at or prior to the time
such furnishing is required by the Securities Act and the Final Prospectus
would
have cured the defect giving rise to such loss, claim, damage or liability.
-16-
Notwithstanding
the foregoing, a Holder’s aggregate liability pursuant to this subsection (b)
and subsection (d) shall be limited to the net amount received by the Holder
from the sale of the Registrable Securities.
(c) Each
party entitled to indemnification under this Section 6.6 (the “Indemnified
Party”)
shall
give notice to the party required to provide indemnification (the “Indemnifying
Party”)
promptly after such Indemnified Party has actual knowledge of any claim as
to
which indemnity may be sought, and shall permit the Indemnifying Party (at
its
expense) to assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall conduct
the defense of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not unreasonably be withheld), and the Indemnified
Party may participate in such defense at such Indemnified Party’s expense, and
provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Agreement, unless such failure is materially prejudicial to the
Indemnifying Party in defending such claim or litigation. An Indemnifying Party
shall not be liable for any settlement of an action or claim effected without
its written consent (which consent will not be unreasonably withheld). No
Indemnifying Party, in its defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
and Indemnifying Party of a release from all liability in respect to such claim
or litigation.
(d) If
the
indemnification provided for in this Section 6.6 is held by a court of competent
jurisdiction to be unavailable to an Indemnified Party with respect to any
loss,
liability, claim, damage or expense referred to therein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party thereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the
one
hand and of the Indemnified Party on the other in connection with the statements
or omissions which resulted in such loss, liability, claim, damage or expense
as
well as any other relevant equitable considerations. The relative fault of
the
Indemnifying Party and of the Indemnified Party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties’
relative intent, knowledge, access to information and opportunity to correct
or
prevent such statement or omission.
SECTION
6.7. (a)
Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event requiring the preparation of a supplement or amendment to a
prospectus relating to Registrable Securities so that, as thereafter delivered
to the Holders, such prospectus shall not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, each Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement and prospectus contemplated by Section 6.1 until its
receipt of copies of the supplemented or amended prospectus from the Company
and, if so directed by the Company, each Holder shall deliver to the Company
all
copies, other than permanent file copies then in such Holder’s possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice.
(b) Each
Holder shall suspend, upon request of the Company, any disposition of
Registrable Securities pursuant to the Registration Statement and prospectus
contemplated by Section 6.1 during no more than two periods of no more than
60
calendar days each during any 12-month period to the extent that the Board
of
Directors of the Company determines in good faith that the sale of Registrable
-17-
Securities
under the Registration Statement would be reasonably likely to cause a violation
of the Securities Act or Exchange Act.
(c) As
a
condition to the inclusion of its Registrable Securities in the Registration
Statement, each Holder shall timely furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may reasonably request in writing, including completing a Registration
Questionnaire in the form provided by the Company, or as shall be required
in
connection with any registration referred to in this Article 6.
(d) Each
Holder hereby covenants with the Company (i) not to make any sale of the
Registrable Securities without effectively causing the prospectus delivery
requirements under the Securities Act to be satisfied, and (ii) if such
Registrable Securities are to be sold by any method or in any transaction other
than on a national securities exchange, Nasdaq or in the over-the-counter
market, in privately negotiated transactions, or in a combination of such
methods, to notify the Company at least five Business Days prior to the date
on
which the Holder first offers to sell any such Registrable
Securities.
(e) Each
Holder acknowledges and agrees that the Registrable Securities sold pursuant
to
the Registration Statement are not transferable on the books of the Company
unless the share certificate submitted to the registrar evidencing such
Registrable Securities is accompanied by a certificate reasonably satisfactory
to the Company to the effect that (i) the Registrable Securities have been
sold
in accordance with such Registration Statement and (ii) the requirement of
delivering a current prospectus has been satisfied. Each holder further
acknowledges and agrees that the only public market in the Registrable
Securities in the U.S. is in the form of ADSs and that no Registrable Securities
may be deposited into the Company’s ADS facility other than in compliance with
the legend described in Section 3.8 hereof.
(f) Each
Holder agrees not to take any action with respect to any distribution deemed
to
be made pursuant to such Registration Statement which would constitute a
violation of Regulation M under the Exchange Act or any other applicable rule,
regulation or law.
(g) At
the
end of the Registration Period the Holders shall discontinue sales of Ordinary
Shares and/or ADSs pursuant to such Registration Statement upon receipt of
notice from the Company of its intention to remove from registration the
Ordinary Shares and/or ADSs covered by such Registration Statement which remain
unsold, and such Holders shall notify the Company of the number of Ordinary
Shares and/or ADSs registered which remain unsold immediately upon receipt
of
such notice from the Company.
SECTION
6.8. With
a
view to making available to the Holders the benefits of certain rules and
regulations of the SEC which at any time permit the sale of the Registrable
Securities to the public without registration, so long as the Holders still
own
Registrable Securities, the Company shall use its commercially reasonable
efforts to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144 under the Securities Act, at all times;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Exchange Act; and
(c) so
long
as a Holder owns any Registrable Securities, furnish to such Holder, upon any
reasonable request, a written statement by the Company as to its compliance
with
clauses (a) and (b) of this Section 6.8, a copy of the most recent annual report
of the Company,
-18-
and
such
other reports and documents of the Company as such Holder may reasonably request
in availing itself of any rule or regulation of the SEC allowing a Holder to
sell any such securities without registration.
SECTION
6.9. The
rights to cause the Company to register Registrable Securities granted to the
Holders by the Company under Section 6.1 may be assigned by a Holder in
connection with a transfer by such Holder of all or a portion of its Registrable
Securities, provided, however, that such transfer must be made at least ten
days
prior to the Filing Date and that (i) such transfer may otherwise be effected
in
accordance with applicable securities laws; (ii) such Holder gives prior written
notice to the Company at least ten days prior to the Filing Date; and (iii)
such
transferee agrees to comply with the terms and provisions of this Agreement,
and
such transfer is otherwise in compliance with this Agreement. Except as
specifically permitted by this Section 6.9, the rights of a Holder with respect
to Registrable Securities as set out herein shall not be transferable to any
other Person, and any attempted transfer shall cause all rights of such Holder
therein to be forfeited.
SECTION
6.10. The
rights of any Holder under any provision of this Article 6 may be waived (either
generally or in a particular instance, either retroactively or prospectively
and
either for a specified period of time or indefinitely) or amended by an
instrument in writing signed by such Holder.
ARTICLE
7
DEFINITIONS
“Affiliate”
means,
with respect to any Person (as defined below), any other Person controlling,
controlled by or under direct or indirect common control with such Person (for
the purposes of this definition “control,”
when
used with respect to any specified Person, shall mean the power to direct the
management and policies of such person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise; and the terms
“controlling”
and
“controlled”
shall
have meanings correlative to the foregoing).
“Business
Day”
means
a
day Monday through Friday on which banks are generally open for business in
New
York City and London, England.
“Closing”
has
the
meaning set forth in Section 1.3.
“Closing
Date”
has
the
meaning set forth in Section 1.3.
“Company”
means
Amarin Corporation plc a company incorporated under the laws of England and
Wales.
“Disclosure
Schedules”
means
the Disclosure Schedules of the Company attached hereto as Schedules
1-7.
“Escrow
Agent”
means
American Stock Transfer and Trust Company.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Filing
Date”
has
the
meaning set forth in Section 6.1.
“Final
Prospectus”
has
the
meaning set forth in Section 6.6(a).
-19-
“Financial
Statements”
means
the financial statements of the Company included in the SEC
Documents.
“Finders”
means
J&E Davy, ProSeed Capital Holdings CVA and Xxxxxxx.
“Holders”
means
any person holding Registrable Securities or any person to whom the rights
under
Article 6 have been transferred in accordance with Section 6.9
hereof.
“Indemnified
Party”
has
the
meaning set forth in Section 6.6(c).
“Indemnifying
Party”
has
the
meaning set forth in Section 6.6(c).
“Intellectual
Property”
has
the
meaning set forth in Section 2.10.
“Investment
Company Act”
has
the
meaning set forth in Section 2.12.
“Material
Adverse Effect”
means
a
material adverse effect on the business, operations, assets or financial
condition of the Company and its Subsidiary, taken as a whole.
“Material
Permits”
has
the
meaning set forth in Section 2.5.
“Memorandum
and Articles of Association”
has
the
meaning set forth in Section 2.3.
“Nasdaq”
means
The Nasdaq Capital Market.
“Non-US
Person”
has
the
meaning set forth in Section 3.2.
“Offering”
means
the private placement of the Company’s Securities contemplated by this
Agreement.
“Ordinary
Shares”
means
the ordinary shares, par value $0.05 per share, of the Company.
“Person”
means
any person, individual, corporation, limited liability company, partnership,
trust or other nongovernmental entity or any governmental agency, court,
authority or other body (whether foreign, federal, state, local or
otherwise).
“Placement
Agent”
means
Banc of America Securities LLC.
“Purchasers”
mean
the Purchasers whose names are set forth on the signature pages of this
Agreement and are listed on Exhibit A hereto, and their permitted
transferees.
“Purchase
Price”
has
the
meaning set forth in Section 1.1.
Unless
the context requires otherwise, the terms “register,”
“registered”
and
“registration”
refer
to the registration effected by preparing and filing a registration statement
in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
“Registrable
Securities”
means
(i) the Shares and (ii) the Warrant Shares; provided, however, that securities
shall only be treated as Registrable Securities if and only for so long as
they
(A) have not been disposed of pursuant to a registration statement declared
effective by the SEC, (B) have not
-20-
been
sold
in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act so that all transfer restrictions and
restrictive legends with respect thereto are removed upon the consummation
of
such sale or (C) are held by a Holder or a permitted transferee pursuant to
Section 6.9.
“Required
Approvals”
has
the
meaning set forth in Section 2.5(b).
“Registration
Expenses”
means
all expenses incurred by the Company in complying with Section 6.1 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and expenses of counsel for the Company,
blue sky fees and expenses and the expense of any special audits incident to
or
required by any such registration (but excluding the fees of legal counsel
for
any Holder).
“Registration
Statement”
has
the
meaning set forth in Section 6.1.
“Registration
Period”
has
the
meaning set forth in Section 6.4(a).
“Rule
144”
means
Rule 144 promulgated under the Securities Act as amended.
“SEC”
means
the United States Securities and Exchange Commission.
“SEC
Documents”
has
the
meaning set forth in Section 2.6.
“Securities”
has
the
meaning set forth in Section 1.1.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Selling
Expenses”
means
all selling commissions applicable to the sale of Registrable Securities and
all
fees and expenses of legal counsel for any Holder.
“Shares”
has
the
meaning set forth in Section 1.1.
“Subsidiary”
of
any
person shall mean any corporation, partnership, limited liability company,
joint
venture or other legal entity of which such Person (either above or through
or
together with any other subsidiary) owns, directly or indirectly, more than
50%
of the stock or other equity interests the holders of which are generally
entitled to vote for the election of the board of directors or other governing
body of such corporation or other legal entity.
“Warrant
Shares”
has
the
meaning set forth in Section 2.4.
“Warrants”
has
the
meaning set forth in Section 1.1.
ARTICLE
8
GOVERNING
LAW; MISCELLANEOUS
SECTION
8.1. Governing
Law; Jurisdiction.
This
Agreement will be governed by and interpreted in accordance with the laws of
the
State of New York without regard to the principles of conflict of laws.
-21-
SECTION
8.2. Counterparts;
Signatures by Facsimile.
This
Agreement may be executed in two or more counterparts, all of which are
considered one and the same agreement and will become effective when
counterparts have been signed by each party and delivered to the other parties.
This Agreement, once executed by a party, may be delivered to the other parties
hereto by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
SECTION
8.3. Headings.
The
headings of this Agreement are for convenience of reference only, are not part
of this Agreement and do not affect its interpretation.
SECTION
8.4. Severability.
If any
provision of this Agreement is invalid or unenforceable under any applicable
statute or rule of law, then such provision will be deemed modified in order
to
conform with such statute or rule of law. Any provision hereof that may prove
invalid or unenforceable under any law will not affect the validity or
enforceability of any other provision hereof.
SECTION
8.5. Entire
Agreement; Amendments.
This
Agreement (including all schedules and exhibits hereto) constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein or therein. This Agreement supersedes
all
prior agreements and understandings among the parties hereto with respect to
the
subject matter hereof. No provision of this Agreement may be amended or waived
other than by an instrument in writing signed by the Company and the holders
of
at least a majority of the Registrable Securities, or in the case of a waiver,
by the party against whom enforcement of such waiver is sought. Any amendment
effected in accordance with this Section 8.5 shall be binding upon each holder
of any Securities purchased under this Agreement at the time outstanding
(including securities into which such Securities are convertible and for which
such Securities are exercisable), each future holder of all such securities,
and
the Company.
SECTION
8.6. Notices.
All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b)
when sent by confirmed facsimile if sent during normal business hours of the
recipient, if not, then on the next business day, (c) five days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid, or (d) one business day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification
of
receipt. The addresses for such communications are:
If
to the
Company:
Amarin
Corporation plc
0
Xxxxxx
Xxxxxx
Xxxxxx,
Xxxxxxx Xxxxxx
X0X
0XX
Xxxxxx
Xxxxxxx
Facsimile:
44 20 7499 9004
Attn:
Chief Financial Officer
cc:
General Counsel
-22-
With
a
copy to:
Xxxxxx
Xxxxxx & Xxxxxxx LLP
00
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Facsimile:
212 269 5420
Attn:
Xxxxxxxxxxx Xxx, Esq.
If
to a
Purchaser: To the address set forth immediately below such Purchaser’s name on
the signature pages hereto. Each party will provide ten days’ advance written
notice to the other parties of any change in its address.
SECTION
8.7. Successors
and Assigns.
This
Agreement is binding upon and inures to the benefit of the parties and their
successors and assigns. The Company or its successors will not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Purchasers, and no Purchaser may assign this Agreement or any
rights or obligations hereunder without the prior written consent of the
Company, except as permitted in accordance with Section 6.9 hereof.
SECTION
8.8. Third
Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto, their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
SECTION
8.9. Further
Assurances.
Each
party will do and perform, or cause to be done and performed, all such further
acts and things, and will execute and deliver all other agreements,
certificates, instruments and documents, as may be necessary in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
SECTION
8.10. No
Strict Construction.
The
language used in this Agreement is deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
SECTION
8.11. Equitable
Relief.
The
Company recognizes that, if it fails to perform or discharge any of its
obligations under this Agreement, any remedy at law may prove to be inadequate
relief to the Purchasers. The Company therefore agrees that the Purchasers
are
entitled to seek temporary and permanent injunctive relief in any such case.
Each Purchaser also recognizes that, if it fails to perform or discharge any
of
its obligations under this Agreement, any remedy at law may prove to be
inadequate relief to the Company. Each Purchaser therefore agrees that the
Company is entitled to seek temporary and permanent injunctive relief in any
such case.
SECTION
8.12. Survival
of Representations and Warranties.
Notwithstanding any investigation made by any party to this Agreement, all
representations and warranties made by the Company and the Purchasers herein
shall survive only for a period of one year following the date
hereof.
SECTION
8.13. Independent
Nature of Purchasers' Obligations and Rights.
The
obligations of each Purchaser under this Agreement are several and not joint
with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under this Agreement. Nothing contained herein and no action taken
by
any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers
as
a partnership, an association, a joint venture or any other kind of entity,
or
create a presumption that the Purchasers are in any way acting in concert or
as
a group, or are deemed affiliates (as such term is defined under the Exchange
Act) with
-23-
respect
to such obligations or the transactions contemplated by this Agreement. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation the rights arising out of this Agreement, and
it
shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose.
[Signature
Pages Follows]
-24-
IN
WITNESS WHEREOF, the undersigned Purchasers and the Company have caused this
Agreement to be duly executed as of the date first above written.
AMARIN
CORPORATION PLC.
By:
_________________________________
Name:
Title:
S-1
PURCHASER
(investor
name)
By:
________________________________
Name:
Title:
Tax
ID
No.: ____________________________
Contact
Name: __________________________
Address: ______________________________
______________________________
______________________________
Telephone: _____________________________
S-2
|
Purchaser
|
Shares
|
Warrants
|
Purchase
Price
|
|
Aggregate
Total:
|
26,100,098
|
9,135,034
|
$26,361,099.00
|
Exh.
A-1
EXHIBIT
B
WARRANT
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “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) AN
EXEMPTION FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS IS AVAILABLE.
AS
A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, THE COMPANY MAY
REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF COUNSEL REASONABLY 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 (1) 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 AND (2) SUCH SECURITIES ARE NOT “RESTRICTED SECURITIES” WITHIN THE MEANING
OF RULE 144 UNDER
THE SECURITIES ACT.
AMARIN
CORPORATION PLC
WARRANT
TO PURCHASE ORDINARY SHARES
No.
W-__
December
[ ], 2005
Void
After December [ ], 2010
THIS
CERTIFIES THAT, for value received, __________________________, with its
principal office at __________________________, or assigns (the “Holder”), is
entitled to subscribe for and purchase at the Exercise Price (defined below)
from Amarin Corporation plc, a public company incorporated under the laws of
England and Wales, with its principal office at 0 Xxxxxx Xxxxxx, Xxxxxx, X0X
0XX, Xxxxxx Xxxxxxx (the “Company”)
up to
__________ ordinary shares of the Company (the “Ordinary
Shares”),
subject to adjustment as provided herein. This warrant is one of a series of
warrants (each a “Warrant”
and
collectively, the “Warrants”)
being
issued pursuant to the terms of the Securities Purchase Agreement, dated as
of
December 16, 2005, by and among the Company and the original Holder of this
Warrant and the other parties named therein (the “Purchase
Agreement”).
Capitalized terms not otherwise defined herein shall have the respective
meanings ascribed to such terms in the Purchase Agreement.
1. DEFINITIONS.
As used
herein, the following terms shall have the following respective
meanings:
(a) “Exercise
Period”
shall
mean the period commencing 180 days after the date hereof and ending December
21, 2010, unless sooner terminated as provided below.
(b) “Exercise
Price”
shall
mean $1.43 per share, subject to adjustment pursuant to Section 5
below.
(c) “Exercise
Shares”
shall
mean the Ordinary Shares issued upon exercise of this Warrant, subject to
adjustment and limitation pursuant to the terms herein, including but not
limited to Section 2.4 and Section 5 below.
(d) “VWAP”
shall
mean, for any date, the price determined by the first of the following clauses
that applies: (i) if the Ordinary Shares in the form of American Depositary
Shares (“ADSs”)
are
then listed or quoted on the Nasdaq Capital Market, the Nasdaq National Market
or a national securities exchange (a “Trading
Market”),
the
daily volume weighted average price of the ADSs for such date (or the nearest
preceding date) on the trading market on which the ADSs are then quoted or
listed as reported by Bloomberg Financial LP; (b) if the ADSs are not then
listed or quoted on a Trading Market and if prices for the ADSs are then quoted
on the OTC Bulletin Board, the volume weighted average price of the ADSs for
such date (or the nearest preceding date) on the OTC Bulletin Board; and (c)
if
the ADSs are not then listed or quoted on the OTC Bulletin Board and if prices
for the ADSs are then reported on the “Pink Sheets” published by the Pink Sheets
LLC (or similar organization or agency succeeding to its functions of reporting
prices), the most recent bid price per share of the ADSs so reported; or (c)
in
all other cases, the fair market value of a share of ADSs as determined by
an
independent appraiser selected in good faith by the Company and reasonably
acceptable to the Purchasers.
2. EXERCISE
OF WARRANT.
2.1 Method
of Exercise.
The
rights represented by this Warrant may be exercised in whole or in part at
any
time during the Exercise Period, by delivery of the following to the Company
at
its address set forth above (or at such other address as it may designate by
notice in writing to the Holder):
(a) An
executed Notice of Exercise in the form attached hereto;
(b) Payment
of the Exercise Price either (i) in cash or by check or wire transfer of
immediately available funds; and
(c) This
Warrant.
Upon
the
exercise of the rights represented by this Warrant, Ordinary Shares shall be
issued for the Exercise Shares so purchased, and shall be registered in the
name
of the Holder or persons affiliated with the Holder, if the Holder so
designates, within a reasonable time after the rights represented by this
Warrant shall have been so exercised and shall be issued in certificate form
and
delivered to the Holder.
The
person in whose name any Exercise Shares are to be issued upon exercise of
this
Warrant shall be deemed to have become the holder of record of such shares
on
the date on which this Warrant was surrendered and payment of the Exercise
Price
was made, irrespective of the date of issuance of the shares of Ordinary Shares,
except that, if the date of such surrender and payment is a date when the stock
transfer books of the Company are closed, such person shall be deemed to have
become the holder of such shares at the close of business on the next succeeding
date on which the stock transfer books are open.
2.2 [Reserved]
Exh.
B-2
2.3 Partial
Exercise.
If this
Warrant is exercised in part only, the Company shall, upon surrender of this
Warrant, execute and deliver, within 10 days of the date of exercise, a new
Warrant evidencing the rights of the Holder, or such other person as shall
be
designated in the Notice of Exercise, to purchase the balance of the Exercise
Shares purchasable hereunder. In no event shall this Warrant be exercised for
a
fractional Exercise Share, and the Company shall not distribute a Warrant
exercisable for a fractional Exercise Share. Fractional Warrant shares shall
be
treated as provided in Section 6 hereof.
2.4 [Reserved]
2.5 Call
Right.
(a) Subject
to the provisions of this Section 2.5, if at any time after the Registration
Statement (as defined in Section 6.1 of the Purchase Agreement) is declared
effective, the VWAP of the ADSs on the Company’s Trading Market is equal to or
above US$4.76 (representing
400% of the VWAP as defined in Section 1.1 of the Purchase Agreement), as
adjusted for any stock splits, stock combinations, stock dividends and other
similar events (the “Threshold
Price”)
for
each of any twenty consecutive Trading Days, then the Company at any time
thereafter shall have the right, but not the obligation (the “Call
Right”),
on 20
days’ prior written notice to the Holder, to cancel any unexercised portion of
this Warrant for which a Notice of Exercise has not yet been delivered prior
to
the Cancellation Date (the “Call
Amount”).
(b) To
exercise the Call Right, the Company shall deliver to the Holder an irrevocable
written notice (a “Call
Notice”)
indicating the Call Amount. The date that the Company delivers the Call Notice
to the Holder shall be referred to as the “Call
Date”.
Within
20 days of receipt of the Call Notice, the Holder may exercise this Warrant
in
whole or in part, subject to the terms hereof, as set forth in herein. Any
portion of the Call Amount that is not exercised by 5:30 p.m. (New York City
time) on the 20th day following the date of receipt of the Call Notice (the
“Cancellation
Date”)
shall
be cancelled. Any unexercised portion of this Warrant to which the Call Notice
does not pertain (the “Remaining
Portion”)
will
be unaffected by such Call Notice.
(c) Notwithstanding
anything to the contrary set forth in this Warrant, unless waived in writing
by
the Holder, the Company may not deliver a Call Notice or require the
cancellation of any unexercised Call Amount (and any Call Notice will be void)
unless from the Call Date through the Cancellation Date (the “Call
Period”)
the
Registration Statement shall be effective as to all of the Exercise Shares
held
by the Holder and the prospectus thereunder available for use by the Holder
for
the resale all such Exercise Shares, or the Exercise Shares held by the Holder
qualify for resale under Rule 144.
3. COVENANTS
OF THE COMPANY.
3.1 Covenants
as to Exercise Shares.
The
Company covenants and agrees that all Exercise Shares that may be issued upon
the exercise of the rights represented by this Warrant will, upon issuance,
be
validly issued, fully paid and free from all taxes, liens and charges with
respect to the issuance thereof. The Company further covenants and agrees that
the Company will at all times during the Exercise Period, have sufficient
authorized share capital to provide for the exercise of the rights represented
by this Warrant. If at any time during the Exercise Period the authorized share
capital shall not be sufficient to permit exercise of this Warrant, the Company
will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued share capital (or other
securities as provided herein) to such amount as shall be sufficient for such
purposes.
Exh.
B-3
3.2 No
Impairment.
Except
and to the extent as waived or consented to by the Holder or otherwise in
accordance with Section 11 hereof, the Company will not, by amendment of its
Memorandum and Articles of Association (as such may be amended from time to
time), or through any means, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of
all
the provisions of this Warrant and in the taking of all commercially reasonable
actions as may be necessary in order to protect the exercise rights of the
Holder against impairment.
3.3 Notices
of Record Date.
In the
event of any taking by the Company of a record of the holders of any class
of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend (other than a cash dividend which is the same as cash
dividends paid in previous quarters) or other distribution, the Company shall
mail to the Holder, where practicable, at least ten days prior to the date
specified herein, a notice specifying the date on which any such record is
to be
taken for the purpose of such dividend or distribution, provided that the
failure to mail such notice or any defect therein or in the mailing thereof
shall not adversely affect the validity of the dividend or distribution required
to be specified in such notice.
4. REPRESENTATIONS
OF HOLDER.
4.1 Acquisition
of Warrant for Personal Account.
The
Holder represents and warrants that it is acquiring the Warrant and the Exercise
Shares solely for its account for investment and not with a present view toward
the public sale or distribution of said Warrant or Exercise Shares or any part
thereof and has no intention of selling or distributing said Warrant or Exercise
Shares or any arrangement or understanding with any other persons regarding
the
sale or distribution of said Warrant, or except in accordance with the
provisions of Article 6 of the Purchase Agreement, the Exercise Shares, and
except as would not result in a violation of the Securities Act. The Holder
will
not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose
of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) the Warrant except in accordance with the Securities Act and will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise dispose
of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) the Exercise Shares except in accordance with the provisions of Article
6 of
the Purchase Agreement or pursuant to and in accordance with the Securities
Act.
4.2 Securities
Are Not Registered.
(a) The
Holder understands that the offer and sale of the Warrant and the Exercise
Shares have not been registered under the Securities Act on the basis of
specific exemptions from the registration provisions of the Securities Act,
which exemptions depend upon, among other things, the bona fide nature of the
Holder's investment intent as expressed herein. The Holder realizes that the
basis for such exemptions may not be present if, notwithstanding its
representations, the Holder has a present intention of acquiring the securities
for a fixed or determinable period in the future, selling (in connection with
a
distribution or otherwise), granting any participation in, or otherwise
distributing the securities. The Holder has no such present
intention.
(b) The
Holder recognizes that the Warrant and the Exercise Shares must be held
indefinitely unless they are subsequently registered under the Securities Act
or
an exemption from such registration is available. The Holder recognizes that
the
Company has no obligation to register the Warrant or, except as provided in
the
Purchase Agreement, the Exercise Shares of the Company, or to comply with any
exemption from such registration.
Exh.
B-4
4.3 Disposition
of Warrant and Exercise Shares.
(a) The
Holder further
agrees not to make any disposition of all or any part of the Warrant or
Exercise
Shares in any event unless and until:
(i) The
Company shall have received a letter secured by the Holder from the SEC stating
that no action will be recommended to the Commission with respect to the
proposed disposition;
(ii) There
is
then in effect a registration statement under the Securities Act covering such
proposed disposition and such disposition is made in accordance with said
registration statement; or
(iii) The
Holder shall have notified the Company of the proposed disposition and shall
have delivered to the Company an opinion of counsel to the Holder reasonably
satisfactory to the Company to the effect that such disposition will not require
registration of such Warrant or Exercise Shares under the Securities Act or
any
applicable state securities laws.
(b) The
Holder understands and agrees that all certificates evidencing the Exercise
Shares to be issued to the Holder may bear a legend in substantially the
following form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “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) AN
EXEMPTION FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS IS AVAILABLE.
AS
A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, THE COMPANY MAY
REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF COUNSEL REASONABLY 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 (1) 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 AND (2) SUCH SECURITIES ARE NOT “RESTRICTED SECURITIES” WITHIN THE MEANING
OF RULE 144 UNDER THE SECURITIES ACT.
4.4 Further
Representations.
The
Holder hereby represents and warrants to the Company each of the representations
and warranties as set forth in Section 3 of the Purchase Agreement as if such
representation and warranties were set out in full herein.
5. ADJUSTMENT
OF EXERCISE PRICE.
In the
event of changes in the outstanding Ordinary Shares of the Company by reason
of
a stock dividend, subdivision, split-up, or combination of shares, the number
of
shares available under the Warrant in the aggregate and the Exercise Price
shall
be correspondingly adjusted to give the Holder of the Warrant, on exercise
for
the
Exh.
B-5
same
aggregate Exercise Price, the total number of shares as the Holder would have
owned had the Warrant been exercised prior to the event and had the Holder
continued to hold such shares until after the event requiring adjustment. The
form of this Warrant need not be changed because of any adjustment in the
Exercise Price and/or number of shares subject to this Warrant. The Company
shall promptly provide a certificate from the Company notifying the Holder
in
writing of any adjustment in the Exercise Price and/or the total number of
shares issuable upon exercise of this Warrant, which certificate shall specify
the Exercise Price and number of shares under this Warrant after giving effect
to such adjustment.
6. FRACTIONAL
SHARES.
No
fractional shares shall be issued upon the exercise of this Warrant as a
consequence of any adjustment pursuant hereto. All Exercise Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for purposes
of determining whether the exercise would result in the issuance of any
fractional share. If, after aggregation, the exercise would result in the
issuance of a fractional share, the Company shall, in lieu of issuance of any
fractional share, pay the Holder otherwise entitled to such fraction a sum
in
cash equal to the product resulting from multiplying the then current fair
market value of an Exercise Share by such fraction.
7. CERTAIN
EVENTS.
In the
event of, at any time during the Exercise Period, any capital reorganization,
or
any reclassification of the capital stock of the Company (other than a change
in
par value or from par value to no par value or no par value to par value or
as a
result of a stock dividend, subdivision, split-up or combination of shares),
or
the consolidation or merger of the Company with or into another corporation
(other than a merger solely to effect a reincorporation of the Company into
another state), in each case, in which the shareholders of the Company
immediately prior to such capital reorganization, reclassification,
consolidation or merger, will hold less than a majority of the outstanding
shares of the Company or resulting corporation immediately after such capital
reorganization, reclassification, consolidation or merger, or the sale or other
disposition of all or substantially all of the properties and assets of the
Company and its Subsidiary, taken as a whole, in its entirety to any other
person, other than sales or other dispositions that do not require shareholder
approval (each, an “Event”),
the
Company shall provide to the Holder ten days' advance written notice of such
Event, and the Holder shall have the option, in its sole discretion, to allow
any unexercised portion of the Warrant to be deemed automatically exercised
pursuant to Section 2.2. This Warrant will be binding upon the successors and
assigns of the Company upon an Event.
8. NO
SHAREHOLDER RIGHTS.
This
Warrant in and of itself shall not entitle the Holder to any voting rights
or
other rights as a shareholder of the Company.
9. TRANSFER
OF WARRANT.
Subject
to applicable laws and compliance with Section 4.3 hereof and the terms of
the
Purchase Agreement, this Warrant and all rights hereunder are transferable,
by
the Holder in person or by duly authorized attorney, upon delivery of this
Warrant and the form of assignment attached hereto to any authorized transferee
designated by the Holder. The authorized transferee shall sign an investment
letter in form and substance satisfactory to the Company.
10. LOST,
STOLEN, MUTILATED OR DESTROYED WARRANT.
If this
Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may reasonably impose (which shall, in the
case of a mutilated Warrant, include the surrender thereof), issue a new Warrant
of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated
or destroyed Warrant shall be at any time enforceable by anyone.
Exh.
B-6
11. MODIFICATIONS
AND WAIVER.
Unless
otherwise provided herein, this Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by
the
Company and (i) Purchasers holding Warrants representing at least a majority
of
the number of Exercise Shares then issuable upon exercise of the Warrants sold
in the Offering, provided, however, that such modification, amendment or waiver
is made with respect to all Warrants issued in the Offering and does not
adversely affect the Holder without adversely affecting all holders of Warrants
in a similar manner; or (ii) the Holder.
12. NOTICES,
ETC.
All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b)
when sent by confirmed facsimile if sent during normal business hours of the
recipient, if not, then on the next business day, (c) five days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid, or (d) one business day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification
of
receipt. All communications shall be sent to the Company at the address listed
on the signature page and to the Holders at the addresses on the Company
records, or at such other address as the Company or Holder may designate by
ten
days’ advance written notice to the other party hereto.
13. ACCEPTANCE.
Receipt
of this Warrant by the Holder shall constitute acceptance of and agreement
to
all of the terms and conditions contained herein and in the Purchase
Agreement.
14. GOVERNING
LAW.
This
Warrant and all rights, obligations and liabilities hereunder shall be governed
by the laws of England and Wales without regard to the principles of conflict
of
laws.
15. DESCRIPTIVE
HEADINGS.
The
descriptive headings of the several paragraphs of this Warrant are inserted
for
convenience only and do not constitute a part of this Warrant. The language
in
this Warrant shall be construed as to its fair meaning without regard to which
party drafted this Warrant.
16. SEVERABILITY.
The
invalidity or unenforceability of any provision of this Warrant in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction, or affect any other provision of this Warrant, which
shall remain in full force and effect.
17. ENTIRE
AGREEMENT.
This
Warrant constitutes the entire agreement between the parties pertaining to
the
subject matter contained in it and supersedes all prior and contemporaneous
agreements, representations, and undertakings of the parties, whether oral
or
written, with respect to such subject matter.
[Signature
Page Follows]
Exh.
B-7
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly
authorized officer as of December __, 2005.
AMARIN
CORPORATION PLC
By:
______________________________
Name:
Title:
Address: 0
Xxxxxx
Xxxxxx
Xxxxxx,
Xxxxxxx Xxxxxx X0X 0XX
Xxxxxx
Xxxxxxx
Attention:
Chief Financial Officer
Facsimile:
44 20 7499 9004
Exh.
B-8
NOTICE
OF EXERCISE
TO: AMARIN
CORPORATION PLC.
(1) The
undersigned hereby elects to purchase ________ ordinary shares (“Ordinary
Shares”)
of
Amarin Corporation plc (the “Company”)
pursuant to the terms of the attached warrant (the “Warrant”),
and
tenders herewith payment of the exercise price in full for such shares, together
with all applicable transfer taxes, if any.
(2) Please
issue a certificate or certificates representing said Ordinary Shares in the
name of the undersigned or in such other name as is specified
below:
___________________________
(Name)
_______________________________
___________________________
(Address)
(3) The
undersigned represents that (i) the aforesaid Ordinary Shares are being acquired
for the account of the undersigned for investment and not with a view to, or
for
resale in connection with, the distribution thereof and that the undersigned
has
no present intention of distributing or reselling such shares; (ii) the
undersigned is aware of the Company’s business affairs and financial condition
and has acquired sufficient information about the Company to reach an informed
and knowledgeable decision regarding its investment in the Company; (iii) the
undersigned is experienced in making investments of this type and has such
knowledge and background in financial and business matters that the undersigned
is capable of evaluating the merits and risks of this investment and protecting
the undersigned’s own interests; (iv) the undersigned understands that the
Ordinary Shares issuable upon exercise of this Warrant have not been registered
under the Securities Act of 1933, as amended (the “Securities
Act”),
by
reason of specific exemptions from the registration provisions of the Securities
Act, which exemptions depend upon, among other things, the bona fide nature
of
the investment intent as expressed herein, and, because such securities have
not
been registered under the Securities Act, they must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available; and (v) the undersigned agrees not to make any
disposition of all or any part of the aforesaid Ordinary Shares unless and
until
there is then in effect a registration statement under the Securities Act
covering such proposed disposition and such disposition is made in accordance
with said registration statement, or the undersigned has provided the Company
with an opinion of counsel to the undersigned satisfactory to the Company,
stating that such registration is not required.
Exh.
B-9
_____________________
(Date)
_______________________________
(Signature)
_______________________________
(Holder’s
Name)
_______________________________
(Authorized
Signature)
_______________________________
(Title)
________________________________________
(Tax ID Number)
________________________________________
(Telephone)
NOTE:
SIGNATURE MUST CONFORM IN ALL RESPECTS TO THE NAME OF HOLDER AS SPECIFIED ON
THE
FACE OF THE WARRANT.
Exh.
B-10
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, subject to compliance with applicable law and
the
terms of the Warrant, execute this form and supply required information. Do
not
use this form to exercise the Warrant.)
FOR
VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
Name:
_________________________________
(Please Print)
Address:
_______________________________
(Please Print)
and
_______________________________________ is hereby appointed attorney to transfer
said rights on the books of Amarin Corporation plc, with full power of
substitution in the premises.
Dated:
__________, 20__
Holder’s
Name:________________________________
Title:________________________________________
Holder’s
Address:______________________________
Holder’s
Telephone:____________________________
Facsimile:____________________________________
Assignee
Tax ID No.:___________________________
Assignee
Telephone: ___________________________
Assignee
Facsimile: ____________________________
Signature
Guaranteed:___________________________
NOTE:
The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant, without alteration or enlargement or any change
whatever and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.
1
