TERMINATION AND SEPARATION AGREEMENT AND RELEASE
Exhibit 4.79
TERMINATION
AND
SEPARATION AGREEMENT AND
RELEASE
This
Termination and Separation Agreement and Release (“Agreement”) is entered into
as of this ____ day of August, 2008 (the “Effective Date”), between Amarin
Corporation plc (the “Company”) and Xxxx Xxxxx (the “Executive”).
WHEREAS, the Company and the Executive
entered into an Executive Employment Agreement dated March 30, 2007 (the
“Employment Agreement”); and a Letter Agreement dated March 30, 2007 (the
“Letter Agreement”); and
WHEREAS, the Company hired the
Executive to serve as the President, United States Commercial Operations;
and
WHEREAS, the Company wishes to
terminate the Employment Agreement without Cause (as such term is defined in the
Employment Agreement) pursuant to Section 3(A)(4) of the Employment Agreement;
and
WHEREAS, both parties wish to terminate
the Letter Agreement.
WHEREAS,
in consideration for the payments by the Company to the Executive set forth
herein, the Executive has agreed to the covenants and other provisions set forth
in this Agreement;
NOW, THEREFORE, in consideration of the
mutual promises and agreements contained in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Executive hereby agree as
follows:
1. The Termination
Date. The employment relationship between the Executive and
the Company, the Employment Agreement, and the Letter Agreement will terminate
as of the six month anniversary of the Effective Date (the
"Termination Date") During the interim period from the Effective Date
to the Termination Date, the Employment Agreement and the Letter Agreement shall
remain in full force and effect. Following the Termination Date, the
terms of this Agreement shall govern the parties.
2. Compensation and Benefits Following
the Termination Date. In as much as the parties agree that
this is not a personal services agreement, and in consideration for the
covenants of the Executive and the release of claims by the Executive contained
herein and in full payment of all obligations of any nature or kind whatsoever
owed or owing to the
Executive
by the Company and any of its Affiliates (as defined below), following the
Termination Date, the Company shall pay, and/or provide benefits to, the
Executive or to his estate or conservatorship as follows:
(a) continued
payment of the Executive’s annual salary, $381,705, inclusive of bonus
and associated Medicare tax, from the Termination Date for a period
of six (6) months thereafter in accordance with normal payroll
practice. All post-calendar year 2008 payments shall be paid in
a lump sum prior to December 31, 2008;
(b) reimburse
100% of all insurance premiums paid by the Executive to retain group health
benefits pursuant to COBRA for a period not to exceed 18 months following the
Termination Date, such reimbursement shall be within thirty days (30) of the
submission of receipts;
(c) reimburse
the Executive for insurance related payments to cover all out-of-pocket medical,
dental and vision expenses not otherwise covered by qualifying Company insurance
programs for a period not to exceed 18 months following the
Termination Date, such reimbursement shall be within thirty days (30) of the
submission of receipts;;
(d) continued
payment of the employer pension contribution at 6% of monthly base salary from
the Termination Date for a period of twelve (12) months thereafter in accordance
with normal payroll practice;
(e) a car
allowance of $1,500 (plus associated employer social security tax and Medicare
tax) per month for a period of twelve (12) months following the Termination
Date; and
(f) a
one-time lump sum payment in the amount of $31,000 (plus associated employer
social security tax and Medicare tax) as consideration for the Executive’s
thirteen and twenty remaining vacation days for 2007 and 2008
respectively which payment shall be made by the Company on the
Termination Date
The
Executive currently holds share options (“Options”) under the Company’s 2002
Stock Option Plan (the “Plan”) and the Executive’s options which will vest as at
the Termination Date (“Vested Options”) are set out in Schedule 1 to this
Agreement. The Executive hereby confirms that Schedule 1 sets forth
an accurate calculation of the Executive’s vested options.
The
Executive and the Company agree and acknowledge that
(i) the
Executive’s Vested Options will be exercisable for a period of 12 months
following the Termination Date in accordance with the terms of the Plan and upon
the
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expiration
of such 12 month period, the Executive’s Vested Options shall cease to be
exercisable and shall expire; and
(ii) the
Executive’s Options which have not vested as at the Termination Date will vest
on the Termination Date and will be exercisable for a period of 12 months
following the Termination Date and upon the expiration of such 12 month period,
such Options shall cease to be exercisable and shall expire.
For
purposes of this Agreement, an "Affiliate" of the Company or any other person or
entity includes any person, directly or indirectly, through one or more
intermediaries, controlling, controlled by, or under common control with the
Company or such other person or entity, as the case may be.
3. The
Executive acknowledges and agrees that, following the Termination Date, he will
not entitled to any salary, bonuses, long-term or short-term incentive
compensation or other compensation, payments or benefits of any kind in respect
of his employment with the Company and/or other positions with its Affiliates,
the termination of such employment and/or other positions, or under any of the
compensation or benefit plans of the Company or its Affiliates, except as
provided by this Agreement.
4. Mutual
Releases
(a) In
consideration of the above, the sufficiency of which the Executive hereby
acknowledges, the Executive, on behalf of the Executive and the Executive's
heirs, executors, administrators, representatives, agents and assigns
(collectively, the “Releasors”) hereby irrevocably and unconditionally releases
and forever discharges the Company and its members, partners, shareholders,
parents, Affiliates, subsidiaries, divisions, any and all current and former
directors, officers, employees, and agents, and their heirs and assigns,
(collectively, the "Releasees"), from all claims, actions, causes of action,
rights, judgments, obligations, damages, charges, accountings, demands or
liabilities of whatever kind or character, in law or in equity, whether known or
unknown, (collectively, the “Claims”) which may have existed or which may now
exist, from the beginning of time through the date of this Agreement including,
without limitation, (a) any Claims the Releasors may have for wrongful
discharge, breach of contract, torts or any other Claims in any way arising from
or relating to the Executive's employment or termination from employment with
the Company or its Affiliates or relating to the Employment Agreement or any
other agreement between the Executive and the Company or an Affiliate, and (b)
any Claims the Releasors may have under: the Civil Rights Act of 1964, as
amended, and the Civil Rights Act of 1991 (which prohibit discrimination in
employment based upon race, color, sex, religion and national origin); the
Americans with Disabilities Act of 1990, as amended, and the Rehabilitation Act
of 1973 (which prohibit discrimination based upon disability); the Family and
Medical Leave Act of 1993 (which prohib-
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its
discrimination based on requesting or taking a family or medical leave); Section
1981 of the Civil Rights Act of 1866 (which prohibits discrimination based upon
race); Section 1985(3) of the Civil Rights Act of 1871 (which prohibits
conspiracies to discriminate); or any other federal, state, local or
foreign statute, or common law relating to discrimination, employment, wages,
hours, or any other terms and conditions of employment. This release
also includes a release of any Claims for age discrimination under the Age
Discrimination in Employment Act of 1967, as amended by the Older Workers’
Benefit Protection Act and the applicable rules and regulations promulgated
thereunder ("ADEA") from the beginning of time through the date of this
Agreement. The ADEA requires that the Executive be advised to consult
with an attorney before the Executive waives any claim under ADEA. In
addition, the ADEA provides the Executive with at least twenty-one (21) days to
decide whether to waive claims under ADEA and seven (7) days after the Executive
signs the Agreement to revoke that waiver. Notwithstanding anything
to the contrary herein, this Agreement shall not: (i) apply to any Claims which,
by law, may not be waived by the Executive; (ii) apply to any Claims by the
Executive arising out of or based upon acts, omissions or events
occurring after the date hereof; (iii) apply to Claims by the Executive arising
out of or based upon any of the Company’s employee benefit plans; (iv) prevent
the Executive from participating in an investigation by a federal, state or
local agency (each a “Governmental Proceeding”) or (iv) apply to
Claims by the Executive for breach of this Agreement.
(b) In
return for the consideration and other promises by the Executive described in
this Agreement, the Company, for itself and on behalf of each of its Affiliates,
parents, subsidiaries, predecessors, successors and assigns, and any person or
entity claiming by or through any of them (individually or collectively “Company
Releasor”) hereby releases and discharges the Executive and his legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees from all Claims that the Company and/or any Company Releasor may have
against the Executive, including but not limited to, Claims that in any manner
relate to, arise out of or involve any aspect of his employment with the Company
or any Affiliate. This release includes any and all Claims concerning
attorney fees, costs, and any and all other expenses related to the Claims
released herein; provided, however, that this release and discharge shall not
apply to any rights which, by law, may not be waived or to rights and claims
which arise from acts or events occurring after the date hereof; or to claims
for breach of this Agreement.
5. Governmental
Proceedings.
The
Executive understands that by signing this Agreement the Executive is prevented
from filing, commencing or maintaining any action, complaint, or proceeding with
regard to any of the Claims released hereby. However, nothing in this
Agreement precludes the Executive from participating in a Governmental
Proceeding. .Moreover, nothing in this Agreement prevents the
Executive from challenging the validity of his release as set forth
in
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Section 4
above solely as it relates to the ADEA. This Section shall not apply
to any rights or claims that the Executive may have for a breach of this
Agreement.
6. Future
Employment. The Executive waives any right to reinstatement or
future employment with the Company following the Executive's separation from the
Company.
7 Disparagement The Executive
agrees not to make any disparaging statements about the Company, its Affiliates
or their current officers, directors and/or employees, to anyone, including but
not limited to the Company’s customers, competitors, suppliers, employees,
former employees or the press or other media, unless placed under legal
compulsion to do so by a court or other governmental authority or in connection
with a Governmental Proceeding. Further, the Company and its
Affiliates, subsidiaries, directors and officers agree not to make any
disparaging statements about the Executive, unless placed under legal compulsion
to do so by a court or other governmental authority.
8. Developments and
Noncompetition/Non-Solicitation.
(a) For the purposes of this
Agreement, Developments shall mean any discovery, invention, process, method and
improvement, conception, development or otherwise made by the Executive during
the course of his employment with the Company or its Affiliates that relate to
the business of the Company, whether patentable or subject to copyright protect
and whether or not reduced to practice. The Company and the Executive
each agree that the Executive did not make any Developments during his
employment with the Company.
(b) In
consideration of the payments to the Executive set forth herein and since the
Executive has obtained in the course of the Executive's employment with the
Company and its Affiliates knowledge of confidential trade names, trade secrets,
know-how, products and services (including confidential products and services
under development), confidential techniques, methods, lists, computer
programs and software, confidential financial information and other confidential
information relating to the Company and its Affiliates, the Executive
hereby undertakes that for the period from the Termination Date through the
first anniversary of the Termination Date, the Executive, without the prior
written consent of the Company, shall not:
(i) be an
employee or consultant of, or provide services to any competitor of the Company
and any Affiliates (collectively, the “Amarin Companies” and individually, an
“Amarin Company”) operating as of the date hereof, an exclusive list of which
competitors is set forth in Exhibit A hereto (each, an “Amarin Competitor”);
or
(ii) have an
interest in any Amarin Competitor in any capacity including, without limitation,
as a partner, shareholder, officer, director, principal, agent,
employee,
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trustee
or consultant or any other relationship or capacity; provided, however, the
Executive may own, directly or indirectly, solely as an investment, securities
of any Amarin Competitor which is publicly traded if the Executive (A) is not a
controlling person of, or a member of a group which controls, such entity, and
(B) does not, directly or indirectly, own 5% or more of any class of securities
of such entity.
Nothing
contained in this Agreement shall be construed so as to prohibit the Executive
from becoming an employee of or consultant to any division or affiliate of an
Amarin Competitor so long as such associated employer social security tax and
Medicare tax division or affiliate does not directly compete with an
Amarin Company and so long as Executive gives no information to and receives no
salary from a division or affiliate of an Amarin Competitor
that directly competes with an Amarin Company
(c) For
the period from the Termination Date through the first anniversary of the
Termination Date, the Executive shall not (i) hire or attempt to hire, or (ii)
solicit or attempt to solicit any person who is a current officer, managerial
employee or consultant of any of the Amarin Companies either for his own account
or for any individual, firm or corporation, whether or not such person would
commit any breach of his contract or employment by reason of leaving the service
of any of the Amarin Companies.
9 Confidentiality
(a) In
consideration of the payments to the Executive set forth herein, the Executive
shall treat as confidential and not disclose, publish or otherwise make
available to the public or to any individual, firm or corporation, other than
any of the Amarin Companies, any Confidential Information (as hereinafter
defined). The Executive agrees that all Confidential Information,
together with all records of the Executive relating thereto, and all copies or
facsimiles thereof in the possession of the Executive, are the exclusive
property of the Company and the Executive agrees to return such material to the
Company on the Termination Date. For the purposes hereof,
“Confidential Information” shall mean all confidential information acquired by
the Executive in the course of the Executive’s employment with the Company
concerning the products, projects, activities, business or affairs of the
Company and/or any Amarin Company, including without limitation, all
confidential information concerning trade secrets and the products or projects
of the Company and/or any improvements therein, all confidential sales and
financial information concerning the Company, all confidential customer and
supplier lists, all confidential information concerning projects in research and
development or confidential marketing plans for any such products or projects,
and all confidential information concerning technical data, designs, patterns or
formulae, which is furnished to the Executive by any Amarin Company; provided,
however, that the term “Confidential Information” shall not include information
which (i) becomes generally available to the public and/or the Company’s
industry other than as a result of disclosure by the Executive, (ii) was
available to the Executive prior to his employment with the Company (iii)
becomes available to the Executive on a non-confidential basis from a source
other than an Amarin Company provided
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that such
source is not bound by a confidentiality agreement with any Amarin Company; or
(iv) is ordered to be disclosed by a court of competent jurisdiction or is
disclosed in connection with a Governmental Proceeding.
(b) In
the event that the Executive is requested or required (by deposition,
interrogatories, requests for information or documents in legal proceedings,
subpoenas, civil investigative demand or similar process), in connection with
any legal proceeding, to disclose any Confidential Information, the Executive
will give the Company prompt written notice of such request or requirement so
that the Company may (at its sole expense) seek an appropriate order or other
remedy and Executive will reasonably cooperate with the Company in an effort to
obtain such protective order. Provided the Executive provides the
Company with prompt written notice of such request or requirement and reasonably
cooperates with the Company in an effort to obtain a protective order, the
Executive may disclose the applicable Confidential Information without liability
hereunder ((even if the Company fails to obtain a protective
order).Notwithstanding anything to the contrary herein, this Agreement shall not
in any way preclude the Executive from participating in any Governmental
Proceeding and the Executive shall have no liability hereunder arising from,
based upon, or relating in any way to such Governmental Proceeding.
10 Company
Property.
On or
before the date hereof, the Executive shall return all property of the Company
and its Affiliates in the Executive's possession, including, but not limited to,
the Company’s credit, telephone, identification and similar cards, keys,
cellular phones, computer equipment, software and peripherals and originals and
copies of books, records, and other information pertaining to the business of
the Company or its Affiliates. All such property to be returned, at
the Company’s expense, to the offices of Xxxxxx Xxxxxx & Xxxxxxx llp, c/o Xxxxxxx
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
11 Litigation.
The
Executive shall, at the request of the Company, cooperate with the Company in
the defense and/or investigation of any third party claim, dispute or any
investigation or proceeding, whether actual or threatened, including, without
limitation, meeting with attorneys and/or other representatives of the Company
at mutually agreeable times and at mutually agreeable locations to provide
reasonably requested information regarding same and/or participating as a
witness in any litigation, arbitration, hearing or other proceeding between the
Company and a third party or any government body. The Company shall
reimburse the Executive for all reasonable expenses incurred by him in
connection with such assistance including, without limitation, reasonable travel
expenses.
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12 Enforcement.
In
addition to any other remedies that the Company may have at law or in equity,
the Company will have the right to seek preliminary and permanent injunctive
relief, without the necessity of posting bond, to prevent a breach or
contemplated breach of this Agreement by the Executive.
13 Law.
This
Agreement shall be governed by and construed in accordance with the laws of New
York, without reference to the principles of conflict of laws
thereof.
14 Arbitration.
Subject
to the rights of the parties to seek injunctive relief , any controversy
or claim arising out of, based upon at least in part or relating in any
way to this Agreement (including its formation and validity) shall be
settled by binding arbitration in accordance with applicable law by three
arbitrators, one of whom shall be appointed by the Company, one of whom
shall be appointed by the Executive, each party giving written notice of
such appointment to the other party within twenty business days of
receiving notice of the appointment of the initial arbitrator, and the
third arbitrator who shall be appointed by the first two
arbitrators. If the first two arbitrators cannot agree on the
appointment of a third arbitrator within twenty business days of the latter
of the dates of their respective appointments, then the third arbitrator
shall be appointed by the American Arbitration Association in New York
City. The arbitrators shall not be under the control of either party,
and shall have no financial interest in the outcome of the arbitration.
Such arbitration shall be conducted in New York City in accordance with
the rules of the American Arbitration Association, except with respect to
the selection of arbitrators, which shall be as provided in this
Section.
The
prevailing party in such arbitration proceeding shall be entitled to
reimbursement by the other party of all reasonable legal fees and other
costs incurred by the prevailing party in connection with such proceeding,
including any legal fees and costs incurred in connection with the
enforcement of any award.
The decision
of the arbitrators shall be rendered in writing and be final and binding,
except to the extent otherwise provided under the Federal
Arbitration Act. Judgment upon the award may be entered in any
court having jurisdiction thereof.
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15 Complete
Agreement.
This
Agreement, the Executive Employment Agreement and the Deed of Indemnity
represent the complete agreement between the Executive and the Company
concerning the subject matter in this Agreement and supersedes all prior
agreements or understandings, written or oral. This Agreement may not be amended
or modified otherwise than by a written agreement executed by the parties hereto
or their respective successors and legal representatives.
16 Severability
Each of
the sections contained in this Agreement shall be enforceable independently of
every other section or portion thereof in this Agreement, and the invalidity or
non-enforceability of any section or portion thereof shall not invalidate or
render unenforceable any other section contained in this Agreement.
17 Revocation
For a
period of seven (7) days following the execution of this Agreement, the
Executive may revoke this Agreement, and this Agreement shall not become
effective or enforceable until the revocation period has expired. Any
such revocation must be effected by delivery of a written notification of
revocation of the Agreement to the General Counsel of the Company prior to the
end of such seven (7) day revocation period. In the event that the
Agreement is revoked by the Executive, the Company shall have no obligations
under the Agreement, no amounts will be payable under this Agreement, and this
Agreement shall be deemed to be void ab initio and of no
further force or effect.
18 Executive
Understanding.
This
Agreement has been entered into voluntarily and not as a result of coercion,
duress, or undue influence. The Executive acknowledges that he has
read and fully understands the terms of this Agreement and has been advised to
consult with, and has consulted with, an attorney before executing this
Agreement. Additionally, the Executive acknowledges that he has been
afforded the opportunity of at least 21 days to consider this Agreement, and the
Executive hereby waives such opportunity.
19 Successors of
Company.
This
Agreement will be binding up any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, of all, or
substantially all, of the business and/or assets of the Company and each such
successor or assignee is hereby bound
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to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if such succession or assignment had not
taken place.
21 Binding Nature and Inuring
Benefit.
This
Agreement shall inure to the benefit of and be enforceable by the Executive's
personal and legal representatives, executors, administrators, heirs,
distributees, devisees and legatees. If the Executive dies or becomes
incapacitated in any way while any amounts are still payable to him hereunder,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's
estate. This Agreement shall bind the Company, each Affiliate,
parent, subsidiary, predecessor, successor and assign of the Company, and any
person or entity claiming by or through any of them.
22
Indemnity.
(a)
The Company confirms that the terms of the Deed of Indemnity dated April
30, 2007 providing an indemnity in the Executives favor during any period
in which the Executive was an employee of the Company will,
notwithstanding the provisions of this Agreement or otherwise, remain in
full force and effect without limit in time following the Termination
Date.
(b)To
the fullest extent permitted by law, the Company shall also indemnify the
Executive and each of his representatives, executors, administrators,
heirs, distributees, devisees and legatees with respect to any actions or
claims commenced or brought against the Executive in his capacity as an officer,
director, employee, agent or fiduciary, or former officer, director,
employee, agent or fiduciary of the Company or any Affiliate, and the
Company shall advance to the Executive on a timely basis an amount equal
to the reasonable fees and expenses (of every nature) incurred in
defending such actions or claims, after receipt of an itemized request for
such advance, and an undertaking from the Executive to repay the amount of
such advance, with interest at a reasonable rate from the date of such
request, as determined by the Company, if it shall ultimately be
determined by a court of competent jurisdiction that the Executive is not
entitled (as a matter of law or judicial determination) to be indemnified
against such expenses. This indemnity is in addition to any other
right to indemnification or exoneration to which the Executive is entitled
by law, the Deed of Indemnity or under the governing or charter documents
of the Company.
(c) The
Company shall also indemnify and hold harmless the Executive,
and each of his representatives, executors,
administrators, heirs, distributees, devisees and legatees against any and
all personal income taxes, customs, duties, debts, claims, obligations,
losses, liabilities, penalties, expenses, judgments, settlements, and any
other damages and costs (including but not limited to all interest,
penalties, assessments and deficiencies related thereto, and any and all
reasonable legal fees, expert witness fees and expenses) arising out
of
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or based
in any part upon any claim or assessment (of any nature whatsoever)
against the Executive: (i) by a United Kingdom taxing authority; and/or
(ii) by a United States taxing authority, in connection with his filing status
or the accuracy of his stated income.
23 It
is intended that this Agreement will comply with Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) (and any regulations and
guidelines issued thereunder), to the extent the Agreement is subject thereto,
and the Agreement shall be interpreted on a basis consistent with such
intent. If an amendment of the Agreement is necessary in order for it
to comply with Section 409A, the parties hereto will negotiate in good faith to
amend the Agreement in a manner that preserves the original intent of the
parties to the extent reasonably possible. Notwithstanding any
provision to the contrary in this Agreement, if the Executive is deemed on the
date of his “separation from service” (within the meaning of Treas. Reg.
Section 1.409A-1(h)) to be a “specified employee” (within the meaning of
Treas. Reg. Section 1.409A-1(i)), then with regard to any payment that is
required to be delayed pursuant to Section 409A(a)(2)(B) of the Code (after
taking into account any applicable exceptions to such requirement), such payment
shall not be made prior to the earlier of (i) the expiration of the six
(6)-month period measured from the date of the Executive’s “separation from
service,” or (ii) the date of the Executive’s death (the “Delay
Period”). Upon the expiration of the Delay Period, all payments
delayed pursuant to this Section 22 (whether they would
have otherwise been payable in a single sum or in installments in the absence of
such delay) shall be paid to the Executive in a lump sum and any remaining
payments due under this Agreement shall be paid in accordance with the normal
payment dates specified for them herein. Notwithstanding any
provision of this Agreement to the contrary, for purposes of this Agreement, the
Executive’s employment will be deemed to have terminated on the date of the
Executive’s “separation from service” (within the meaning of Treas. Reg. Section
1.409A-1(h)) with the Company. Whenever payments under this Agreement
are to be made in installments, each such installment shall be deemed to be a
separate payment for purposes of Section 409A. No action or failure
to act, pursuant to this Section 23 shall subject the Company to any claim,
liability, or expense, and the Company shall not have any obligation to
indemnify or otherwise protect the Executive from the obligation to pay any
taxes, interest or penalty pursuant to Section 409A of the Code.
24 Counterparts.
This
Agreement may be executed and delivered (including by facsimile transmission) in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
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(i) The
Company represents and warrants that this Agreement has been duly authorized,
executed and delivered by once or more officers with full power to execute and
deliver the Agreement.
The
parties to this Agreement have executed this Agreement as of the day and year
first written above.
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Amarin
Corporation plc
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By:
_______________________________
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|
Name:
|
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Title:
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XXXX
XXXXX
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| __________________________________ |
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EXHIBIT
A
COMPETITORS
Acorda
Cytrx
Medication
Memory
Neurochem
Prana
Schedule
1
Share
Options
Number of Options:
60,000
Date of Grant: 2 April
2007
Exercise Price:
$4.40
Vesting Period: All
options vested
