EQUITY SECURITIES PURCHASE AGREEMENT
Exhibit
99.5
EQUITY
This
Securities Purchase Agreement (this “Agreement”) is dated as of December
4, 2007, between Amarin Corporation plc, a corporation formed under the laws
of
England and Wales (the “Company”), and each purchaser identified on the
signature pages hereto (each, including its successors and assigns, a
“Purchaser” and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
an effective registration statement under the Securities Act of 1933, as amended
(the “Securities Act”), the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company, securities of the Company as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agree as
follows:
ARTICLE
1
DEFINITIONS
Section
1.1 Definitions. In addition to the
terms defined elsewhere in this Agreement, for all purposes of this Agreement,
the following terms have the meanings set forth in this Section
1.1:
“ADSs”
means American Depositary Shares, each representing one Ordinary Share of the
Company, par value GBP 0.05 per share, and each evidenced by an American
Depositary Receipt, issued pursuant to the terms of the Deposit
Agreement.
“Affiliate”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
a
Person as such terms are used in and construed under Rule 405 under the
Securities Act. With respect to a Purchaser, any investment fund or
managed account that is managed on a discretionary basis by the same investment
manager as such Purchaser will be deemed to be an Affiliate of such
Purchaser.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a
federal legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by law or
other
governmental action to close.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section
2.1.
“Closing
Date” has the meaning set forth in Section 2.1(3).
“Commission”
means the Securities and Exchange Commission.
“Common
Stock” means the Ordinary Shares of the Company, par value GBP 0.05 per
share, and any other class of securities into which such securities may
hereafter be reclassified or changed into.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.
“Company
Counsel” means Xxxxxx Xxxxxx & Xxxxxxx XXX, Xxx Xxxx, XX, and
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP, London,
England.
“Deposit
Agreement” means the Company’s agreement with National City Nominees Limited
of Citigroup Centre, Canada Square, Xxxxxx Xxxxx, Xxxxxx, X00 0XX, being the
nominee of Citibank, N.A., the Company’s depositary for its ADS program (the
“ADS Depositary”).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to
employees, officers or directors of the Company pursuant to any stock or option
plan duly adopted for such purpose, by a majority of the non-employee members
of
the Board of Directors or a majority of the members of a committee of
non-employee directors established for such purpose, (b) securities upon the
exercise or exchange of or conversion of any Securities issued hereunder and/or
other securities exercisable or exchangeable for or convertible into shares
of
Common Stock issued and outstanding on the date of this Agreement, provided
that
such securities have not been amended since the date of this Agreement to
increase the number of such securities or to decrease the exercise, exchange
or
conversion price of such securities, (c) warrants to purchase 10,000 shares
of
Common Stock issued or to be issued to Xxx Xxxxxxx and shares of Common Stock
upon exercise thereof, (d) shares of Common Stock in connection with the
acquisition by the Company of Ester Neurosciences Ltd., an Israeli company,
pursuant to the definitive agreement relating thereto, and payment of related
fees, (e) the convertible debt and equity financings concurrently being offered
by the Company as described in the Prospectus Supplement, and (f) securities
issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, provided that any such issuance
shall only be to a Person which is, itself or through its subsidiaries, an
operating company in a business synergistic with the business of the Company
and
in which the Company receives benefits in addition to the investment of funds,
but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities.
“FWS”
means Xxxxxxx Xxxxxxxxx & Xxxxx LLP with offices located at 000 Xxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000-0000.
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“Material
Adverse Effect” shall have the meaning assigned to such term in the
Placement Agency Agreement between the Placement Agent and the
Company.
“Per
Unit Purchase Price” equals $0.33.
“Person”
means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other entity
of any kind.
“Placement
Agent” means Xxxxxx & Xxxxxxx, LLC.
“Prospectus”
means the final prospectus filed for the Registration Statement.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule
424(b) of the Securities Act that is filed with the Commission and delivered
by
the Company to each Purchaser at the Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in Section
4.8.
“Registration
Statement” means the effective registration statement with Commission file
No. 333-135718 which registers the sale of the Shares, the Warrants and the
Warrant Shares to the Purchasers.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.
“Securities”
means the Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“Shares”
means the ADSs issued or issuable to each Purchaser pursuant to this
Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO
under the Exchange Act (but shall not be deemed to include the location and/or
reservation of borrowable shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for
Shares and Warrants purchased hereunder as specified below such Purchaser’s name
on the signature page of this Agreement and next to the heading “Subscription
Amount,” in United States dollars and in immediately available funds, and shall
equal the Per Unit Purchase Price times the number specified below such
Purchaser’s name on the signature page of this Agreement and next to the heading
“Shares.”
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, include any
subsidiary of the Company formed or acquired after the date hereof.
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“Trading
Day” means a day on which the NASDAQ Capital Market is open for
trading.
“Trading
Market” means the following markets or exchanges on which the Common Stock
is listed or quoted for trading on the date in question: the American Stock
Exchange, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global
Select Market, the New York Stock Exchange or the OTC Bulletin
Board.
“Transaction
Documents” means this Agreement, the Warrants and any other documents or
agreements executed in connection with the purchase and sale of the Securities
to the Purchasers hereunder.
“Warrants”
means, collectively, the Share purchase warrants delivered to the Purchasers
at
the Closing in accordance with Section 2.2(a) hereof, which Warrants shall
be
exercisable immediately and have a term of exercise equal to 5 years, in the
form of Exhibit A attached hereto.
“Warrant
Shares” means the Shares issuable upon exercise of the
Warrants.
ARTICLE
2
PURCHASE
AND SALE
Section
2.1. Purchase and Sale;
Procedures. At the Closing, upon the terms and subject to the
conditions set forth herein, the Company agrees to sell, and the Purchasers,
severally and not jointly, agree to purchase, up to an aggregate of $1,000,000
of Shares and Warrants. The purchase and sale of the Securities to
each Purchaser hereunder is expressly conditioned on (a) the public announcement
by the Company that it has entered into a definitive agreement for the
acquisition by the Company of Ester Neurosciences Ltd., an Israeli company,
and
that it intends to call an extraordinary general meeting of shareholders to
effect a reverse stock split for the purpose of bringing the Company into
compliance with the continuing listing requirements of the Nasdaq Capital Market
(the “Announcement”), and (b) such Purchaser’s satisfactory review of the
Prospectus Supplement. Prior to the satisfaction of each of such conditions,
this Agreement shall only constitute an indication of interest by the Purchaser
in the offered securities. The process for funding and delivery of the
Securities to each Purchaser shall be as follows:
(1) no
later than 4:00 PM Eastern Standard Time in the United States (“EST”) on
the date of this Agreement, the Purchaser shall deliver executed signature
pages
hereto, and the Company shall deliver legal opinions of Company Counsel,
substantially in the forms of Exhibits B and C attached hereto, in
each case to a mutually-agreed third party to be held pending release of
funds;
(2) prior
to the end of the calendar day on the date of this Agreement, the Company shall
provide to each Purchaser a copy of the Prospectus Supplement;
(3) the
Company plans to make the Announcement prior to 7:30 AM EST on the business
day
following the date of this Agreement, whereupon the condition in clause (a)
above shall be satisfied;
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(4) on
the business day following the date of this Agreement (assuming the condition
in
clause (a) above is satisfied as provided in the preceding clause (3)), (A)
at
7:30 AM EST, the condition in clause (b) above shall be satisfied, unless prior
to that time the Company receives notice in writing from the Purchaser that
the
Purchaser is not satisfied with the Prospectus Supplement, such notice
to be faxed to: 011 3531 66 99 028, Attention: Xxx Xxxxx, or e-mailed to:
xxx.xxxxx@xxxxxxxxxx.xxx; (B) simultaneously with the satisfaction of
the condition in clause (b) above as provided in the preceding clause (A),
the
signature pages and legal opinion referred to in clause (1) shall be released
to
the parties, and (C) no later than 5:00 PM EST, the Purchaser shall deliver
immediately available funds equal to its Subscription Amount by wire transfer
to
the following account of the Company:
|
Bank:
|
Wachovia
Bank, NY, USA
|
|
ABA
No:
|
026–005–092
|
|
For
the account of:
|
Lloyds
TSB plc
|
|
Swift
Code:
|
XXXXXX0XXXX
|
|
For
further credit to:
|
|
|
Lloyds
XXX,
|
|
|
Xxxxxxx
Xxxxx
|
|
|
Xxx,
Xxxxxxxxx
|
|
|
XX0
0XX
|
|
|
U.K.
|
|
|
Account
Name:
|
Amarin
Corporation plc
|
|
Account
No:
|
00000000
|
|
Sort
Code:
|
30
– 93 – 05
|
|
Swift
Code:
|
XXXXXX00000
|
|
IBAN
No:
|
XX00
XXXX 0000 0000 0000 00
|
(the
date
on which these events occur, the “Closing Date”); and
(5) on
the business day following the Closing Date (the “Securities Delivery
Date”), subject, as to each Purchaser, to receipt of such Purchaser’s
Subscription Amount by the Company, the Company shall commence issuing the
Securities by (a) causing the CREST account of the nominee of the ADS Depositary
to be credited with the Shares issued and sold hereunder, (b) instructing the
ADS Depositary to issue American Depositary Receipts evidencing ADSs in the
amount to be registered to a nominated Depository Trust Company (“DTC”)
account designated by the Purchaser in writing, and (c) issuing to the Purchaser
a Warrant registered in the name of such Purchaser to purchase up to a number
of
shares of Common Stock equal to 50% of such Purchaser’s Subscription Amount
divided by 0.33, with an exercise price equal to $0.48, subject to adjustment
as
provided therein (such Warrant certificate may be delivered within three Trading
Days of the Closing Date).
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Section
2.2 Closing. The
Closing shall occur at the offices of FWS or such other location as the parties
shall mutually agree.
Section
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Purchasers contained herein;
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed
at or prior to the Closing Date shall have been performed; and
(iii) the
delivery by each Purchaser of the items to be delivered by it as set forth
in
Section 2.1 of this Agreement, excluding the delivery of the Shares, which
occurs on the Securities Delivery Date.
(b) The
respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Company contained herein;
(ii) all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items to be delivered by it as set forth in
Section 2.1 of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since
the
date hereof; and
(v) from
the date hereof to the Closing Date, trading in the Common Stock shall not
have
been suspended by the Commission or the Company’s principal Trading Market
(except for any suspension of trading of limited duration agreed to by the
Company, which suspension shall be terminated prior to the Closing), and, at
any
time prior to the Closing Date, trading in securities generally as reported
by
Bloomberg L.P. shall not have been suspended or limited, or minimum prices
shall
not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been
declared either by the United States or New York State authorities nor shall
there have occurred any material outbreak or escalation of hostilities or other
national or international calamity of such magnitude in its effect on, or any
material adverse change in, any financial market which, in each case, in the
reasonable judgment of each Purchaser, makes it impracticable or inadvisable
to
purchase the Securities at the Closing.
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ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
Section
3.1 Representations and Warranties
of the Company. The Company makes to each Purchaser each of the
representations and warranties made by the Company to the Placement Agent in
the
Placement Agency Agreement between them a copy of which is available to the
Purchaser upon request therefor to the Company. In addition, the
Company makes the following additional representations and warranties to each
Purchaser:
(a) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company
acknowledges and agrees that each of the Purchasers is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated thereby. 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 Transaction
Documents and the transactions contemplated thereby and any advice given by
any
Purchaser or any of their respective representatives or agents in connection
with the Transaction Documents and the transactions contemplated thereby is
merely incidental to the Purchasers’ purchase of the Securities. The
Company further represents to each Purchaser that the Company’s decision to
enter into this Agreement and the other Transaction Documents has been based
solely on the independent evaluation of the transactions contemplated hereby
by
the Company and its representatives.
(b) Acknowledgement
Regarding Purchaser’s Trading Activity. Anything in this
Agreement or elsewhere herein to the contrary notwithstanding (except for
Sections 3.2(e) and 4.13 hereof), it is understood and acknowledged by the
Company (i) that none of the Purchasers have been asked by the Company to agree,
nor has any Purchaser agreed, to desist from purchasing or selling, long and/or
short, securities of the Company, or “derivative” securities based on securities
issued by the Company or to hold the Securities for any specified term; (ii)
that past or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement
transactions, may negatively impact the market price of the Company’s
publicly-traded securities; (iii) that any Purchaser, and counter-parties in
“derivative” transactions to which any such Purchaser is a party, directly or
indirectly, presently may have a “short” position in the Common Stock, (iv) that
each Purchaser shall not be deemed to have any affiliation with or control
over
any arm’s length counter-party in any “derivative” transaction, (v) that one or
more Purchasers may engage in hedging activities at various times during the
period that the Securities are outstanding, including, without limitation,
during the periods that the value of the Warrant Shares deliverable with respect
to Securities are being determined, (vi) that such hedging activities (if any)
could reduce the value of the existing stockholders’ equity interests in the
Company at and after the time that the hedging activities are being conducted,
and (vii) that such aforementioned hedging activities do not constitute a breach
of any of the Transaction Documents.
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Section
3.2 Representations and Warranties
of the Purchasers. Each Purchaser, for itself and for no other
Purchaser, hereby represents and warrants as of the date hereof and as of the
Closing Date to the Company as follows:
(a) Organization;
Authority. Such Purchaser is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate or partnership power and authority
to
enter into and to consummate the transactions contemplated by this Agreement
and
otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of this Agreement and performance by such Purchaser of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate or similar action on the part of such
Purchaser. Each Transaction Document to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b) Own
Account. Such Purchaser is acquiring the Securities as principal
for its own account and not with a view to or for distributing or reselling
such
Securities or any part thereof in violation of the Securities Act or any
applicable state securities law, has no present intention of distributing any
of
such Securities in violation of the Securities Act or any applicable state
securities law and has no direct or indirect arrangement or understandings
with
any other persons to distribute or regarding the distribution of such Securities
(this representation and warranty not limiting such Purchaser’s right to sell
the Securities immediately pursuant to the Registration Statement or otherwise
in compliance with applicable federal and state securities laws) in violation
of
the Securities Act or any applicable state securities law. Such
Purchaser is acquiring the Securities hereunder in the ordinary course of its
business.
(c) Purchaser
Status. At the time such 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 “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii)
a
“qualified institutional buyer” as defined in Rule 144A(a) under the Securities
Act. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with
its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits
and
risks of the prospective investment in the Securities, and has so evaluated
the
merits and risks of such investment. Such Purchaser is able to bear
the economic risk of an investment in the Securities and, at the present time,
is able to afford a complete loss of such investment.
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(e) Short
Sales and Confidentiality Prior to the Date Hereof. Other than
consummating the transactions contemplated hereunder, such Purchaser has not,
nor has any Person acting on behalf of or pursuant to any understanding with
such Purchaser, directly or indirectly executed any purchases or sales,
including Short Sales, of the securities of the Company during the period
commencing from the time that such Purchaser first received a term sheet
(written or oral) from the Company or any other Person representing the Company
setting forth the material terms of the transactions contemplated hereunder
(“Discussion Time”). Notwithstanding the foregoing, in the case of a
Purchaser that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets and the portfolio
managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s assets, the
representation set forth above shall only apply with respect to the portion
of
assets managed by the portfolio manager that made the investment decision to
purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement, such Purchaser has maintained the
confidentiality of all disclosures made to it in connection with this
transaction (including the existence and terms of this
transaction).
ARTICLE
4
OTHER
AGREEMENTS OF THE PARTIES
Section
4.1 Warrant Shares. If all or any
portion of a Warrant is exercised at a time when there is an effective
registration statement to cover the issuance or resale of the Warrant Shares,
the Warrant Shares issued pursuant to any such exercise shall be issued free
of
all legends. If at any time following the date hereof the
Registration Statement (or any subsequent registration statement registering
the
Warrant Shares) is not effective or is not otherwise available for the sale
or
resale of the Warrant Shares, the Company shall immediately notify the holders
of the Warrants in writing that such registration statement is not then
effective and thereafter shall promptly notify such holders when the
registration statement is effective again and available for the sale or resale
of the Warrant Shares. The Company shall use best efforts to keep a
registration statement (including the Registration Statement) registering the
issuance or resale of the Warrant Shares effective during the term of the
Warrants.
Section
4.2 Furnishing of
Information. Until the earliest of the time that (i) no Purchaser
owns Securities (based solely on a review of the transfer agent’s list of
registered holders of Common Stock, a list of non-objecting beneficial holders
and the Company’s registry for the Warrants) or (ii) the Warrants have expired,
the Company covenants to timely file (or obtain extensions in respect thereof
and file within the applicable grace period) all reports required to be filed
by
the Company after the date hereof pursuant to the Exchange Act even if the
Company is not then subject to the reporting requirements of the Exchange
Act. As long as any Purchaser owns Securities, if the Company is not
required to file reports pursuant to the Exchange Act, it will prepare and
furnish to the Purchasers and make publicly available in accordance with Rule
144(c) such information as is required for the Purchasers to sell the Securities
under Rule 144. The Company further covenants that, if at any time
following the date hereof the Registration Statement (or any subsequent
registration statement registering the Warrant Shares) is not effective or
is
not otherwise available for the sale or resale of the Warrant Shares, it will
take such further action as any Purchaser may reasonably request, to the extent
required from time to time, to enable such Purchaser to sell such Warrant Shares
without registration under the Securities Act within the requirements of the
exemption provided by Rule 144.
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Section
4.3 Integration. The Company shall not
sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in Section 2 of the Securities Act) that would
be
integrated with the offer or sale of the Securities for purposes of the rules
and regulations of any Trading Market such that it would require shareholder
approval prior to the closing of such other transaction unless shareholder
approval is obtained before the closing of such subsequent
transaction.
Section
4.4 Securities Laws Disclosure;
Publicity. The Company shall, by 8:30 a.m. (New York City time)
on the Trading Day immediately following the Closing Date, issue a Current
Report on Form 6-K, disclosing the material terms of the purchase and sale
of
the Securities pursuant to this Agreement, and filing the Transaction Documents
as exhibits thereto. Notwithstanding the foregoing, the Company shall
not publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any filing with the Commission or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (i) as
required by federal securities law in connection with the filing of final
Transaction Documents (including signature pages thereto) with the Commission
and (ii) to the extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Purchasers with prior
notice of such disclosure permitted under this clause (ii).
Section
4.5 Shareholder Rights Plan. No claim will be
made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share
acquisition, business combination, poison pill (including any distribution
under
a rights agreement) or similar anti-takeover plan or arrangement in effect
or
hereafter adopted by the Company, or that any Purchaser could be deemed to
trigger the provisions of any such plan or arrangement, by virtue of receiving
Securities under the Transaction Documents or under any other agreement between
the Company and the Purchasers.
Section
4.6 Non-Public
Information. Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents, the
Company covenants and agrees that neither it nor any other Person acting on
its
behalf will provide any Purchaser or its agents or counsel with any information
that the Company believes constitutes material non-public information, unless
prior thereto such Purchaser shall have executed a written agreement regarding
the confidentiality and use of such information. The Company
understands and confirms that each Purchaser shall be relying on the foregoing
covenant in effecting transactions in securities of the Company.
Section
4.7 Use of Proceeds. Except as set
forth on Schedule 4.7 attached hereto, the Company shall use the net proceeds
from the sale of the Securities hereunder for working capital purposes and
shall
not use such proceeds for (a) the satisfaction of any portion of the Company’s
debt (other than payment of trade payables in the ordinary course of the
Company’s business and prior practices), (b) the redemption of any Common Stock
or Common Stock Equivalents or (c) the settlement of any outstanding
litigation.
Section
4.8 Indemnification of
Purchasers. Subject to the provisions of this Section 4.8, to the
extent permitted by law, the Company will indemnify and hold each Purchaser
and
its directors, officers, shareholders, members, partners, agents and employees
(and any other Persons with a functionally equivalent role of a Person holding
such titles notwithstanding a lack of
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such
title or any other title), each Person who controls such Purchaser (within
the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act),
and the directors, officers, shareholders, members, partners, agents or
employees (and any other Persons with a functionally equivalent role of a Person
holding such titles notwithstanding a lack of such title or any other title)
of
such controlling persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs
and expenses, including all judgments, amounts paid in settlements, court costs
and reasonable attorneys’ fees and costs of investigation that any such
Purchaser Party may suffer or incur as a result of or relating to (a) any breach
of any of the representations, warranties, covenants or agreements made by
the
Company in this Agreement or in the other Transaction Documents or (b) any
action instituted against a Purchaser in any capacity, or any of them or their
respective Affiliates, by any stockholder of the Company who is not an Affiliate
of such Purchaser, with respect to any of the transactions contemplated by
the
Transaction Documents (unless such action is based upon a breach of such
Purchaser’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser may have with
any
such stockholder or any violations by the Purchaser of state or federal
securities laws or any conduct by such Purchaser which constitutes fraud, gross
negligence, willful misconduct or malfeasance). If any action shall
be brought against any Purchaser Party in respect of which indemnity may be
sought pursuant to this Agreement, such Purchaser Party shall promptly notify
the Company in writing, and the Company shall have the right to assume the
defense thereof with counsel of its own choosing reasonably acceptable to the
Purchaser Party. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but
the fees and expenses of such counsel shall be at the expense of such Purchaser
Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or (iii)
in such action there is, in the reasonable opinion of such separate counsel,
a
material conflict on any material issue between the position of the Company
and
the position of such Purchaser Party, in which case the Company shall be
responsible for the reasonable fees and expenses of no more than one such
separate counsel. The Company will not be liable to any Purchaser
Party under this Agreement (i) for any settlement by a Purchaser Party effected
without the Company’s prior written consent, which shall not be unreasonably
withheld or delayed; or (ii) to the extent, but only to the extent that a loss,
claim, damage or liability is attributable to any Purchaser Party’s breach of
any of the representations, warranties, covenants or agreements made by such
Purchaser Party in this Agreement or in the other Transaction
Documents.
Section
4.9 Reservation of Common Stock. As of the
date hereof, the Company has reserved and the Company shall continue to reserve
and keep available at all times, free of preemptive rights, a sufficient number
of shares of Common Stock for the purpose of enabling the Company to issue
Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise
of
the Warrants.
Section
4.10 Listing of Common Stock. The Company
hereby agrees to use all commercially reasonable efforts to maintain the listing
of the Common Stock on a Trading Market, and as soon as reasonably practicable
following the Closing to list all of the Shares and Warrant Shares on such
Trading Market. The Company further agrees, if the Company applies to
have the Common Stock traded on any other Trading Market, it will include in
such application all of the Shares and Warrant Shares, and will take such other
action as is necessary to cause all of the Shares and Warrant Shares to be
listed on such other Trading Market as promptly as possible. The
Company will use all commercially reasonable efforts to continue the listing
and
trading of its Common Stock on a Trading Market.
-11-
Section
4.11 Equal Treatment of Purchasers. No
consideration shall be offered or paid to any Person to amend or consent to
a
waiver or modification of any provision of any of the Transaction Documents
unless the same consideration is also offered to all of the parties to the
Transaction Documents. For clarification purposes, this provision
constitutes a separate right granted to each Purchaser by the Company and
negotiated separately by each Purchaser, and is intended for the Company to
treat the Purchasers as a class and shall not in any way be construed as the
Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of Securities or otherwise.
Section
4.12 Subsequent Equity Sales.
(a) From
the date hereof until 45 days after the Closing Date, neither the Company nor
any Subsidiary shall issue shares of Common Stock or Common Stock Equivalents;
provided, however, the 45 day period set forth in this Section
4.12 shall be extended for the number of Trading Days during such period in
which (i) trading in the Common Stock is suspended by any Trading Market, or
(ii) the Registration Statement is not effective or the prospectus included
in
the Registration Statement may not be used by the Purchasers for the resale
of
the Shares and Warrant Shares.
(b) From
the date hereof until such time as no Purchaser holds any of the Securities
(based solely on a review of the transfer agent’s list of registered holders of
Common Stock, a list of non-objecting beneficial holders and the Company’s
registry for the Warrants), the Company shall be prohibited from effecting
or
entering into an agreement to effect any Subsequent Financing involving a
Variable Rate Transaction. “Variable Rate Transaction” means a
transaction in which the Company issues or sells any debt or equity securities
that are convertible into, exchangeable or exercisable for, or include the
right
to receive additional shares of Common Stock at a conversion, exercise or
exchange rate or other price that is based upon and/or varies with the trading
prices of or quotations for the shares of Common Stock at any time after the
initial issuance of such debt or equity securities. The Purchasers
shall be entitled to obtain injunctive relief against the Company to preclude
any such issuance, which remedy shall be in addition to any right to collect
damages.
(c) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt
Issuance, except that no Variable Rate Transaction shall be an Exempt
Issuance.
Section
4.13 Short Sales and Confidentiality After the Date
Hereof. Each Purchaser, severally and not jointly with the other
Purchasers, covenants that neither it nor any Affiliate acting on its behalf
or
pursuant to any understanding with it will execute any Short Sales during the
period commencing at the Discussion Time and ending at the time that the
conditions in Sections 2.1(a) and 2.1(b) are deemed satisfied as provided in
Sections 2.1(3) and 2.1(4) (the “Time of Satisfaction”). Each
Purchaser, severally and not jointly with the other Purchasers, covenants that
until such Time of Satisfaction, such Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the
information included in the Disclosure Schedules. Notwithstanding the
foregoing, no Purchaser makes any representation, warranty or covenant hereby
that it will not engage in Short Sales in the securities of the Company after
the Time of Satisfaction. Notwithstanding the foregoing, in the case
of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser’s assets and the
portfolio managers have no direct knowledge of the investment decisions made
by
the portfolio managers managing other portions of such Purchaser’s assets, the
covenant set forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision to purchase
the Securities covered by this Agreement.
-12-
Section
4.14 Delivery of Securities After
Closing. The Company shall deliver, or cause to be delivered, the
respective Securities purchased by each Purchaser to such Purchaser within
3
Trading Days of the Closing Date.
ARTICLE
5
MISCELLANEOUS
Section
5.1 Termination. This Agreement may be
terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and
the
other Purchasers, by written notice to the other parties, if the Closing has
not
been consummated on or before December 15, 2007; provided,
however, that no such termination will affect the right of any party
to
xxx for any breach by the other party (or parties).
Section
5.2 Fees and Expenses. Except as expressly set
forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts,
if
any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this
Agreement. The Per Unit Purchase Price includes costs of issuance,
such as all Transfer Agent fees, stamp taxes and other taxes and duties levied
in connection with the delivery of any Securities to the
Purchasers.
Section
5.3 Entire Agreement. The Transaction Documents,
together with the exhibits and schedules thereto, the Prospectus and the
Prospectus Supplement, contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.
Section
5.4 Notices. Any and all notices or
other communications or deliveries required or permitted to be provided
hereunder shall be in writing and shall be deemed given and effective on the
earliest of (a) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number set forth on the signature
pages
attached hereto prior to 5:30 p.m. (New York City time) on a Trading Day, (b)
the next Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth
on
the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the 2nd Trading
Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and
communications shall be as set forth on the signature pages attached
hereto.
Section
5.5 Amendments; Waivers. No provision
of this Agreement may be waived or amended except in a written instrument
signed, in the case of an amendment, by the Company and the Purchasers of at
least 85% of the Shares still held by the Purchasers or, in the case of a
waiver, by the party against whom enforcement of any such waived provision
is
sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair
the
exercise of any such right.
Section
5.6 Headings. The headings herein are for
convenience only, do not constitute a part of this Agreement and shall not
be
deemed to limit or affect any of the provisions hereof.
Section
5.7 Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties and their
successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser (other than by merger). Any Purchaser may
assign any or all of its rights under this Agreement to any Person to whom
such
Purchaser assigns or transfers any Securities, provided such transferee agrees
in writing to be bound, with respect to the transferred Securities, by the
provisions of the Transaction Documents that apply to the
“Purchasers.”
Section
5.8 No Third-Party Beneficiaries. This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set
forth
in Section 4.8.
Section
5.9 Governing Law. All questions concerning the
construction, validity, enforcement and interpretation of the Transaction
Documents shall be governed by and construed and enforced in accordance with
the
internal laws of the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively
in
the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper or is an inconvenient venue for
such
proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Agreement and agrees that such service
shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law. If
either party shall commence an action or proceeding to enforce any provisions
of
the Transaction Documents, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
Section
5.10 Survival. The representations and
warranties contained herein shall survive the Closing and the delivery of the
Shares and Warrant Shares.
-13-
Section
5.11 Execution. This Agreement may be executed in
two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event
that any signature is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
Section
5.12 Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the
terms, provisions, covenants and restrictions set forth herein shall remain
in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their commercially reasonable efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction.
It
is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
Section
5.13 Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in (and
without limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election, demand or option
under a Transaction Document and the Company does not timely perform its related
obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to
the
Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights; provided, however, in
the case of a rescission of an exercise of a Warrant, the Purchaser shall be
required to return any shares of Common Stock delivered in connection with
any
such rescinded exercise notice.
Section
5.14 Replacement of Securities. If any
certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof (in the case of mutilation),
or
in lieu of and substitution therefor, a new certificate or instrument, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction. The applicant for a new certificate or
instrument under such circumstances shall also pay any reasonable third-party
costs (including customary indemnity) associated with the issuance of such
replacement Securities.
Section
5.15 Remedies. In addition to being entitled
to exercise all rights provided herein or granted by law, including recovery
of
damages, each of the Purchasers and the Company will be entitled to specific
performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations contained in the Transaction Documents
and
hereby agrees to waive and not to assert in any action for specific performance
of any such obligation the defense that a remedy at law would be
adequate.
-14-
Section
5.16 Payment Set Aside. To the extent that
the Company makes a payment or payments to any Purchaser pursuant to any
Transaction Document or a Purchaser enforces or exercises its rights thereunder,
and such payment or payments or the proceeds of such enforcement or exercise
or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are required to be
refunded, repaid or otherwise restored to the Company, a trustee, receiver
or
any other person under any law (including, without limitation, any bankruptcy
law, state or federal law, common law or equitable cause of action), then to
the
extent of any such restoration the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not
occurred.
Section
5.17 Independent Nature of Purchasers’ Obligations and
Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser,
and no Purchaser shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any Transaction
Document. Nothing contained herein or in any other Transaction
Document, 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 with respect to such obligations or
the
transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation, the rights arising out of this Agreement or out
of
the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate
legal counsel in their review and negotiation of the Transaction
Documents. For reasons of administrative convenience only, Purchasers
and their respective counsel have chosen to communicate with the Company through
FWS. FWS does not represent all of the Purchasers but only the
Placement Agent. The Company has elected to provide all Purchasers
with the same terms and Transaction Documents for the convenience of the Company
and not because it was required or requested to do so by the
Purchasers.
Section
5.18 Liquidated Damages. The Company’s
obligations to pay any partial liquidated damages or other amounts owing under
the Transaction Documents is a continuing obligation of the Company and shall
not terminate until all unpaid partial liquidated damages and other amounts
have
been paid notwithstanding the fact that the instrument or security pursuant
to
which such partial liquidated damages or other amounts are due and payable
shall
have been canceled.
Section
5.19 Saturdays, Sundays, Holidays,
etc. If the last or appointed day for the taking of any action or
the expiration of any right required or granted herein shall not be a Business
Day, then such action may be taken or such right may be exercised on the next
succeeding Business Day.
Section
5.20 Construction. The parties agree
that each of them and/or their respective counsel has reviewed and had an
opportunity to revise the Transaction Documents and, therefore, the normal
rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of the
Transaction Documents or any amendments hereto.
-15-
Section
5.21 Waiver of Jury Trial. In any action,
suit or proceeding in any jurisdiction brought by any party against any other
party, the parties each knowingly and intentionally, to the greatest extent
permitted by applicable law, hereby absolutely, unconditionally, irrevocably
and
expressly waives forever trial by jury.
(Signature
Pages Follow)
-16-
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
|
AMARIN
CORPORATION PLC
|
Address
for Notice:
|
||
|
By:
|
______________________________________ |
Fax:
|
|
|
Name:
|
|||
|
Title:
|
|||
With
a
copy to (which shall not constitute notice):
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
-17-
[PURCHASER
SIGNATURE PAGES TO AMRN SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
|
Name
of
Purchaser:____________________________________________________________________________________
|
|
Signature
of Authorized Signatory of
Purchaser:_____________________________________________________________
|
|
Name
of Authorized
Signatory:___________________________________________________________________________
|
|
Title
of Authorized
Signatory:____________________________________________________________________________
|
|
Email
Address of
Purchaser:_____________________________________________________________________________
|
|
Fax
Number of
Purchaser:_______________________________________________________________________________
|
|
Address
for Notice of Purchaser:
|
|
Address
for Delivery of Securities for Purchaser (if not same as address
for
notice):
|
|
Subscription
Amount:
$______________________________________________________
|
|
Shares:___________________________________________________________________
|
|
Warrant
Shares:____________________________________________________________
|
|
EIN
Number: [PROVIDE THIS UNDER SEPARATE
COVER]
|
|
Name
of
Purchaser:_________________________________________________________
|
-18-
DTC
Account Details:
|
Name
of DTC Participant:
|
| _________________________________________________________ |
|
(your
broker or custodian bank)
|
|
Address
of DTC Participant:
|
| _________________________________________________________ |
|
(address
of your broker or custodian bank)
|
| _________________________________________________________ |
| _________________________________________________________ |
|
DTC
Participant Account Number:
|
| _________________________________________________________ |
|
Client
Account (“Account Holder”) number at DTC Participant:
|
| _________________________________________________________ |
|
Address
of Account Holder:
|
| _________________________________________________________ |
| _________________________________________________________ |
| _________________________________________________________ |
-19-
