BRIDGE LOAN AGREEMENT
Exhibit 4.93
THIS
BRIDGE LOAN AGREEMENT (the “Agreement”) is made
as of July ___, 2009, by and among Amarin Corporation plc (the “Company”) and the
Persons set forth on Exhibit A
attached hereto (the “Lenders”).
WHEREAS,
the Company desires to borrow from Midsummer and Midsummer is willing to make
available to the Company a bridge loan on the terms and conditions set forth in
this Agreement;
WHEREAS,
the Company, Kukes, Xxxxx and Sunninghill desire to amend and restate the Bridge
Loan Agreement, dated as of June 4, 2009, among the Company and the lenders
named therein (as amended, the “June Bridge”) on the
terms and conditions set forth in this Agreement;
NOW
THEREFORE, for consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree was follows:
ARTICLE
ONE
DEFINITIONS
SECTION
1.1. Defined
Terms. As used herein, the following terms shall have the
following meanings:
(a) “Agreement” has the
meaning set forth in the Preamble.
(b) “Business Day” means
any day (excluding Saturdays, Sundays and public holidays) on which banks
generally are open for business in Xxx Xxxx Xxxx xxx Xxxxxx,
Xxxxxxx.
(c) “Closing” has the
meaning set forth in Section 2.2.
(d) “Company” has the
meaning set forth in the Preamble.
(e) “Documents” means this
Agreement, the Notes, the Warrants and any other instruments or documents
required or contemplated hereunder or thereunder, whether now existing or at any
time hereafter arising.
(f) “Exchange Act” means
the Securities Exchange Act of 1934, as amended.
(g) “Indebtedness” means
(i) obligations for borrowed money, (ii) obligations evidenced by bonds,
debentures, notes or similar instruments, (iii) obligations under conditional
sale or other title retention agreements relating to acquired property or
assets, (iv) obligations in respect of the deferred purchase price of
property or services, (v) obligations for the reimbursement of any obligor on
any letter of credit, banker’s acceptance or similar credit transaction and (vi)
guarantees of the indebtedness of any other Person.
(h) “June Bridge” has the
meaning set forth in the Recitals.
(i) “Kukes” means Xx.
Xxxxx Xxxxx.
(j) “Lenders” has the
meaning set forth in the Preamble.
(k) “Lien” means any lien,
mortgage, deed of trust, pledge, security interest, charge or encumbrance of any
kind (including any conditional sale or other title retention agreement, any
lease in the nature thereof and any agreement to give any security
interest)
(l) “Loans” means,
collectively, the amount(s) loaned to the Company hereunder.
(m) “Xxxxx” means Xxxxxx
X. Xxxxx.
(n) “Midsummer” means
Midsummer Ventures, LP and Midsummer Investment, Limited.
(o) “Next Equity
Financing” means the next equity financing pursuant to which the Company
issues capital stock to one or more investors.
(p) “Notes” has the
meaning set forth in Section 2.3.
(q) “Ordinary Shares”
means the ordinary shares, par value ₤0.50 per share, of the
Company.
(r) “Permitted
Indebtedness” means (i) the Loans and other Indebtedness outstanding on
the date hereof, (ii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn against insufficient funds, (iii) Indebtedness in respect of performance
bonds, bankers’ acceptances, workers’ compensation claims, surety or appeal
bonds, payment obligations in connection with self-insurance or similar
obligations, (iv) Indebtedness consisting of guarantees, indemnities or
obligations in respect of purchase price adjustments in connection with the
acquisition or disposition of assets, (v) trade payables and other liabilities
arising in the ordinary course of business and (vi) Indebtedness in replacement
of Indebtedness otherwise permitted hereunder.
(s) “Permitted Liens”
means (i) Liens for taxes, assessments or governmental charges or claims or
statutory Liens of landlords, carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business, that are (a) not delinquent or (b) contested in good faith
by appropriate proceedings and as to which the Company has set aside on its
books such reserves as may be required pursuant to GAAP; (ii) Liens incurred or
deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security; (iii)
judgment Liens so long as such Liens are adequately bonded; (iv) easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering in any material respect with the
ordinary conduct of the business of the Company; (v) any interest or title of a
lessor under any capitalized lease obligation; (vi) Liens upon inventory or
other goods and proceeds in respect of indebtedness to facilitate the purchase,
shipment or storage of
such
inventory or other goods; (vii) Liens encumbering deposits made to secure
obligations arising from statutory, regulatory, contractual, or warranty
requirements of the Company, including rights of offset and set off; and (viii)
leases, subleases, licenses and sublicenses granted to others that do not
materially interfere with the ordinary conduct of business of the
Company.
(t) “Person” means any
individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, institution, entity,
party or government (whether national, federal, state, county, city, municipal
or otherwise including, without limitation, any instrumentality, division,
agency, body or department thereof).
(u) “Required Lenders”
means Lenders holding more than 50% of the Loans then outstanding; provided, that the
Required Lenders shall include both Midsummer and Sunninghill.
(v) “Securities” means the
Notes and the Warrants.
(w) “Securities Act” means
the Securities Act of 1933, as amended.
(x) “Sunninghill” means
Sunninghill Limited.
(y) “Warrants” has the
meaning set forth in Section 2.3.
ARTICLE
TWO
LOANS
SECTION
2.1. Loan
Amount. Subject to the terms and conditions of this Agreement,
at the Closing, each Lender shall make a Loan to the Company in the amount set
forth opposite such Lender’s name on Exhibit A attached
hereto. Each Lender shall make such Loan by means of a wire transfer
of immediately available funds to account of the Company set forth in Schedule 2.1 attached
hereto.
SECTION
2.2. Closing. The
closing under this Agreement (the “Closing”) shall take
place at 10:00 a.m. New York City time on the date hereof at the offices of
Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 or at such other time or place as the Company and the
Lenders may mutually agree.
SECTION
2.3. Promissory
Notes; Warrants. Each Loan shall be evidenced by a promissory
note (collectively, the “Notes”) in the form
of Exhibit B
attached hereto, dated the date of funding of the Loan in respect of which such
Note is issued in the principal amount thereof. The unpaid principal
amount from time to time outstanding the Loans shall bear interest, become
payable and be subject to the other terms and conditions as set forth in the
Notes. As a further inducement to the Lenders to make the Loans, at
the Closing the Company shall issue to the Lenders warrants (collectively, the
“Warrants”) to
purchase Ordinary Shares in the form of Exhibit C attached
hereto.
ARTICLE
THREE
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
SECTION
3.1. The
Company hereby represents and warrants to the Lenders as follows:
(a) Organization,
Etc. It is duly organized, validly existing and in good
standing under the laws of England and Wales and is duly qualified and in good
standing to do business in each jurisdiction where, because of the nature of its
activities or properties, such qualification is required.
(b) Authorization;
No Conflict. The execution and delivery of the Documents are
all within its corporate powers, have been duly authorized by all necessary
action, have, or by the time of their execution and delivery shall have,
received any necessary governmental or regulatory approval, and do not and will
not contravene or conflict with any provision of (i) law, rule, regulation or
ordinance, (ii) its certificate of incorporation or by-laws; or (iii) any
agreement binding upon it or any of its properties, as the case may
be.
(c) Enforceability. The
Documents executed by the Company are the legal, valid and binding obligations
of the Company, enforceable against it, in accordance with their respective
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and any other laws of general application
affecting enforcement of creditors’ rights generally, and as limited by laws
relating to the availability of a specific performance, injunctive relief, or
other equitable remedies.
(d) Securities
Representations. The Company has a sufficient number of
Ordinary Shares duly authorized and reserved for issuance upon conversion of the
Notes and exercise of the Warrants. The Ordinary Shares issued upon
conversion of the Notes and exercise of the Warrants in accordance with the
terms thereof will be validly issued, fully paid and nonassessable and free from
all taxes or liens created by the Company, with the holders being entitled to
all rights accorded to the holders of the Company’s Ordinary
Shares.
ARTICLE
FOUR
REPRESENTATIONS
AND WARRANTIES OF THE LENDERS
Each
Lender, severally and not jointly, hereby represents and warrants to the Company
as follows:
(a) Organization. It
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization.
(b) Authorization;
No Conflict. The execution and delivery of the Documents to
which such Lender is a party are all within such Lender’s corporate powers, have
been duly authorized by all necessary action, have, or by the time of their
execution and delivery shall have, received any necessary governmental or
regulatory approval, and do not and will not contravene or conflict with any
provision of (i) law, rule, regulation or ordinance, (ii) its
certificate
of
incorporation or by-laws; or (iii) any agreement binding upon it or any of its
properties, as the case may be.
(c) Enforceability. The
Documents executed and delivered by such Lender are the legal, valid and binding
obligations of such Lender, enforceable against it, in accordance with their
respective terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and any other laws of general
application affecting enforcement of creditors’ rights generally, and as limited
by laws relating to the availability of a specific performance, injunctive
relief, or other equitable remedies.
(d) Investment
Intent. Such Lender is acquiring the Securities for its own
account and not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales registered or
exempted under the Securities Act.
(e) Restricted
Securities; Legends. Such Lender understands that (i) the
Securities have not been and are not being registered under the Securities Act
or any state securities laws, and may not be offered for sale, sold, assigned or
transferred except pursuant to an effective registration statement under the
Securities Act or an exemption from such registration requirements and (ii) the
Securities may bear one or all of the following legends:
(x) “THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”) OR APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY,
MAY NOT BE OFFERED FOR SALE, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT THEREUNDER OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS THEREOF AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE
TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE
TO THE COMPANY.”
(y) Any
legend required by the Blue Sky laws of any state to the extent such laws are
applicable to the shares represented by the certificate so
legended.
(f) Investor
Status. At the time such Lender was offered the Securities, it
was, and at the date hereof it is, either (i) a “qualified institutional buyer”
as defined in Rule 144A(a) under the Securities Act, (ii) an institutional
“accredited investor” as defined in Rule 501(a)(1), (2) or (3) under the
Securities Act or (iii) a person who is not a “U.S. Person” (as defined in Rule
902(k) under the Securities Act).
(g) Experience. Such
Lender is knowledgeable, sophisticated and experienced in financial and business
matters, in making, and is qualified to make, decisions with respect to
investments like that involved in the purchase of the Securities and has the
ability to bear the economic risks of an investment in the
Securities. Such Lender is involved in and 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 to
acquire the Securities.
ARTICLE
FIVE
COVENANTS
SECTION
5.1. Affirmative
Covenants. Prior to the satisfaction of the Loans or the
conversion of the Notes, as applicable, and, as applicable, at all times
thereafter while the Lenders hold Warrants or Ordinary Shares (or corresponding
ADSs) issued and issuable upon conversion of the Notes or exercise of the
Warrants, the Company shall:
(a) use the
proceeds of the Loans for operating expenses as previously disclosed to the
Lenders;
(b) use its
reasonable best efforts to cause the depositary under the Company’s ADS facility
to (i) promptly issue to the applicable Lender ADSs (or, if applicable, an
account statement reflecting the issuance of uncertificated ADSs) in respect of
the Ordinary Shares issuable in connection with the conversion of the Notes and
the exercise of the Warrants and (ii) in connection with any eligible resale of
such ADSs by the Lender, deliver to the purchaser in such transaction
unrestricted ADSs (or, if applicable, an account statement reflecting the
issuance of uncertificated ADSs); and
(c) use its
commercially reasonable efforts to (i) become and remain current in the filings
and reports required to be made by it under the Exchange Act and (ii) maintain
the listing of its Ordinary Shares on NASDAQ, (it being acknowledged that, as of
the date hereof, the Company is not current in its Exchange Act filings and may
not become current until following the consummation of the Next Equity
Financing).
SECTION
5.2. Negative
Covenants. Prior to the satisfaction of the Loans or the
conversion of the Notes, as applicable, the Company shall not, directly or
indirectly:
(a) create,
incur, assume, guarantee, acquire, become liable, contingently or otherwise,
with respect to, or otherwise become responsible for payment of any Indebtedness
(other than Permitted Indebtedness or as permitted by clause (e)
below);
(b) declare
or pay any dividend or make any distribution (other than dividends or
distributions payable in capital stock of the Company) with respect to the
capital stock of the Company;
(c) purchase,
redeem or otherwise acquire or retire for value any of the capital stock of the
Company;
(d) create,
incur, assume or permit or suffer to exist any Liens other than Permitted Liens
against or upon any property or assets of the Company or any proceeds therefrom,
or assign or otherwise convey any right to receive income or profits therefrom
unless the Loans are equally and ratably secured; and
(e) enter
into any additional bridge loan financing without the prior written consent of
the Required Lenders. In the event, upon such written consent of the
Required Lenders, any additional bridge loan financing is entered into that
contains any terms (including economic terms) that are more favorable to the
lenders thereunder (on a “per loaned dollar” basis) than the Notes or the
Warrants are to the Lenders, then the Notes and/or the Warrants, as applicable,
shall be deemed to have been amended so as to reflect such more favorable
terms.
ARTICLE
SIX
MISCELLANEOUS
SECTION
6.1. Amendment;
Waiver. This Agreement may not be amended, modified or
otherwise altered in any manner, and the terms and conditions hereof may not be
waived, unless in writing signed by the Company and the Required
Lenders. Except as expressly provided to the contrary, the rights and
remedies provided herein shall be cumulative and not exclusive of any other
rights or remedies available to a party and the waiver or failure by a party to
exercise a right hereunder shall not operate as a waiver of a breach nor shall
it prevent such party from doing so later with respect to such breach or any
subsequent breach.
SECTION
6.2. Notices,
Etc. All notices or other communications required or permitted
to be given hereunder shall be in writing and shall be deemed to have been duly
given (i) when delivered personally, (ii) three Business Days after being
mailed by certified or registered mail, return receipt requested and postage
prepaid, (iii) when received, if sent by overnight delivery service or
international courier or (iv) when sent, if sent by fax. A Party may
change its address, email address or fax number for the purposes hereof upon
notice to the other Parties. Such notices or other communications
shall be sent to each Party as follows:
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If
to the Company:
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Amarin
Corporation plc
0
Xxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Xxxxxxx
Attention: Chief
Financial Officer
Fax: 00-00-0000-0000
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With
copies to:
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Xxxxxx
Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx
X. Xxx, Esq.
Fax:
(000) 000-0000
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If
to a Lender:
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To
the address of such Lender set forth on Exhibit
A
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SECTION
6.3. Governing
Law; Jurisdiction; Waiver of Jury Trial; Service of
Process. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT-OF-LAW PROVISIONS. IN CONNECTION WITH THE ADJUDICATION OF
ANY DISPUTES RELATING TO THIS AGREEMENT, EACH PARTY HEREBY IRREVO-
CABLY (A)
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN
NEW YORK, NEW YORK, BOROUGH OF MANHATTAN; PROVIDED, THAT EACH
PARTY SUBMITS TO THE JURISDICTION OF ANY OTHER COURT IN WHICH A CLAIM RELATING
TO THIS AGREEMENT IS VALIDLY BROUGHT BY ANY THIRD PARTY AGAINST THE OTHER PARTY;
(B) WAIVES, AND AGREES NOT TO ASSERT, (1) ANY CLAIM THAT IT IS NOT SUBJECT TO
THE JURISDICTION OF, OR ANY OBJECTION TO THE LAYING OF VENUE IN, ANY SUCH COURT
OR THAT SUCH ACTION HAS BEEN COMMENCED IN AN IMPROPER OR INCONVENIENT FORUM AND
(2) ANY RIGHT IT MAY HAVE TO TRIAL BY JURY; AND (C) AGREES THAT SERVICE OF ANY
PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PARTY’S
ADDRESS AS PROVIDED HEREIN SHALL BE EFFECTIVE WITH RESPECT TO ANY MATTER FOR
WHICH IT HAS SUBMITTED TO JURISDICTION HEREBY. A JUDGMENT IN ANY SUCH
ACTION MAY BE ENFORCED IN ANY OTHER COURTS TO WHOSE JURISDICTION THE APPLICABLE
PARTY MAY BE SUBJECT. EACH PARTY (X) CERTIFIES THAT NO AGENT OF ANY
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (Y)
ACKNOWLEDGES THAT IT AND EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THE
AGREEMENTS CONTEMPLATED HEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS,
AGREEMENTS AND CERTIFICATIONS IN THIS SECTION.
SECTION
6.4. Entire
Agreement. This Agreement and the other Documents (together
with all appendices, schedules, exhibits, annexes and attachments thereto)
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof and supersede all prior agreements and
undertakings, both written and oral, between the parties with respect to the
subject matter hereof and thereof.
SECTION
6.5. Assignment. Neither
this Agreement nor any of the rights, interests or obligations hereunder may be
assigned (i) by a Lender without the prior written consent of the Company and
(ii) by the Company without the prior written consent of the Required Lenders,
and any other purported assignment shall be void ab initio. Subject
to the preceding sentence, permitted assignments shall be binding upon, inure to
the benefit of and be enforceable by the parties and their respective heirs,
successors and assigns.
SECTION
6.6. Severability
SECTION
6.7. . Any
term or provision hereof that is held by a tribunal of competent authority to be
invalid or unenforceable shall not affect the validity or enforceability of the
remaining terms and provisions hereof and, within the jurisdiction of such
tribunal, the scope, duration, or applicability of the invalid or unenforceable
term or provision shall be amended to delete the necessary words or phrases, and
to replace such term or provision with a term or provision that is valid and
enforceable, so as to come as close as possible to achieving the economic,
legal, or other purposes of such unenforceable term or provision.
SECTION
6.8. No Third Party
Beneficiaries. This
Agreement shall not confer any legal or equitable rights or remedies upon any
Person other than the parties hereto and their permitted successors and
assigns.
SECTION
6.9. Further
Assurances. The Company agrees to do such further acts and
things and to execute and deliver to the Lenders such additional assignments,
agreements, powers, documents and instruments as the Lenders may reasonably
require or deem advisable to carry into effect the purposes of the
Documents.
SECTION
6.10. Headings. Captions
contained in this Agreement are inserted only as a matter of convenience and in
no way define, limit or extend the scope or intent of this Agreement or any
provision of this Agreement and shall not affect the construction of this
Agreement.
SECTION
6.11. Counterparts
. This
Agreement may be executed in counterparts and such counterparts may be delivered
in electronic format (including by fax and email). Such delivery of
counterparts shall be conclusive evidence of the intent to be bound hereby and
each such counterpart and copies produced therefrom shall have the same effect
as an original. To the extent applicable, the foregoing constitutes
the election of the parties to invoke any law authorizing electronic
signatures.
SECTION
6.12. June
Bridge
. Each
of Kukes, Xxxxx and Sunninghill hereby: (i) agrees that this Agreement and the
Securities issued hereunder shall amend and restate in their entirety the June
Bridge and the Securities issued thereunder and (ii) elects, pursuant to
Paragraph 4(a) of the Notes, to convert the applicable balance of such Lender’s
Note in the Next Equity Financing; provided, that, with
respect to Sunninghill, the foregoing clause (ii) shall only apply to the Note
being issued to it in the principal amount of $2,000,000, which represents the
current balance of its Loan under the June Bridge.
SECTION
6.13. Conversion
and Warrant Shares. For the avoidance of doubt, the parties
agree that the Ordinary Shares issuable pursuant to the conversion of the Notes
and the exercise of the Warrants shall be subject to the same terms, conditions,
rights and benefits as the Ordinary Shares issued to the investors in the Next
Equity Financing, including without limitation the registration rights set forth
on Exhibit D
hereto.
SECTION
6.14. Warrant
MFN. In the event the warrants, if any, issued to the
investors in the Next Equity Financing contain any terms that are more favorable
to the holders thereof than the Warrants are to the Lenders, then the Warrants
shall be deemed to have been amended so as to reflect such more favorable
terms.
[signature pages
follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
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COMPANY:
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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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LENDERS:
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SUNNINGHILL
LIMITED
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By:
__________________________
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Name:
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Title:
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MIDSUMMER
VENTURES, LP
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By:
__________________________
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Name:
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Title
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MIDSUMMER
INVESTMENT, LIMITED
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By:
___________________________
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Name:
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Title:
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| ___________________________ |
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Name: Xxxxx Xxxxxxxx
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| ___________________________ |
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Name: Xxxxx Xxxxxx
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| ___________________________ |
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Name: Xxxxxx X. Xxxxx
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| ___________________________ |
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Name: Xx.
Xxxxx Xxxxx
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| ___________________________ |
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Name: Maximus Xxxxxxx
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| ___________________________ |
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Name: Xxxxxx Xxxxxxx
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EXHIBIT
A
SCHEDULE
OF LENDERS
|
Name
and Address of Lender
|
Loan
Amount
|
|
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Sunninghill
Limited
Xx
Xxx 00
Kleinwort
Xxxxxx Xxxxx Xxxxx Xxxxxx
Xx.
Xxxxxx
Xxxxxx
XX0
0XX
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$3,000,000
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Midsummer
Ventures, LP
000
Xxxxxxx Xxxxxx
00xx
Xxxxx Xxx Xxxx
N.Y.
10017
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$750,000
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Midsummer
Investment, Limited
000
Xxxxxxx Xxxxxx
00xx
Xxxxx Xxx Xxxx
N.Y.
10017
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$750,000
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Xxxxx
Xxxxxxxx
00
Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx
0
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$175,000
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Xxxxx
Xxxxxx
Silvermere
Killiney
Heath
Killiney
Co
Dublin
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$175,000
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Xxxxxx
X. Xxxxx
Dalraida,
Xxxxxxxxx
Xxxx
Xxxxxxx
Xxxxxx
00
Xxxxxxx
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$250,000
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Xx.
Xxxxx Xxxxx
Xxxxxx
Nafta
Xxxxxxxxx
Blvd
4
Xxxxxx
000000
Xxxxxx
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$250,000
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A-1
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Maximus
Xxxxxxx
000
Xxxxxxxx Xxxx
Xxxxxxxxx
Xxx
Xxxxxx 00000, XXX
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$75,000
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Xxxxxx
Xxxxxxx
000
Xxxxxxxx Xxxx
Xxxxxxxxx
Xxx
Xxxxxx 00000, XXX
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$75,000
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A-2
EXHIBIT
B
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”) OR APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY,
MAY NOT BE OFFERED FOR SALE, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT THEREUNDER OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS THEREOF AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE
TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE
TO THE COMPANY.
AMARIN
CORPORATION PLC
[FORM
OF] PROMISSORY NOTE
Note
No.: [ ]
Principal
Amount: $[ ]
Date of
Issuance: July ___, 2009 (the “Original Issuance
Date”)
FOR VALUE
RECEIVED, Amarin Corporation plc, a company incorporated under the laws of
England and Wales (the “Company”), hereby
promises to pay, subject to the terms and conditions of this Promissory Note
(this “Note”)
to the order of [ ] (together with any permitted transferee or
assignee, the “Holder”), the
principal sum of [ ] U.S. dollars (US$[ ]).
1. Definitions. Undefined
capitalized terms used herein have the meanings ascribed thereto in the Loan
Agreement. As used herein, the following terms shall have the
following meanings:
(a) “Business Day” means
any day (excluding Saturdays, Sundays and public holidays) on which banks
generally are open for business in Xxx Xxxx Xxxx xxx Xxxxxx,
Xxxxxxx.
(b) “Company” has the
meaning set forth in the Preamble.
(c) “Equity Financing
Warrants” has the meaning set forth in Section 4(a).
(d) “Event of Default”
means: (a) the taking of any steps or preparations by the Company
(including the filing of any documents or applications) to commence a proceeding
in bankruptcy, (b) the consent by the Company to a proceeding in bankruptcy
filed against it by another party, (c) the taking of any steps to appoint or the
appointment of a receiver, liquidator, assignee or trustee of the Company’s
assets for the benefit of creditors, (d) the taking of any steps by the Company
(including the filing of any documents or applications) to commence a
liquidation, dissolution or winding-up of the Company, (e) the inability of the
Company to pay its debts as they become due, (f) the failure
B-1
of the
Company to effect an equity conversion of this Note required by the terms hereof
or (g) a breach by the Company of any covenant under the Loan
Agreement.
(e) “Holder” has the
meaning set forth in the Preamble.
(f) “Investor Warrants”
has the meaning set forth in Section 4(a).
(g) “Loan Agreement” means
the Bridge Loan Agreement, dated as of July ___, 2009, among the Company and the
Lenders party thereto.
(h) “Note” has the meaning
set forth in the Preamble.
(i) “Original Issuance
Date” has the meaning set forth in the Preamble.
(j) “Term Date” means
September 30, 2009; provided, that with
the written consent of the Required Lenders, the Company may elect to cause the
Term Date to be extended by an additional one month.
2. Ranking;
Payments. This Note may be one of a series of notes having
like tenor and effect (except for variations necessary to express the name of
the Holder and the principal amount of each of the Notes) issued by the Company
pursuant to the Loan Agreement. The Notes shall rank equally, without
preference or priority of any kind over one another and all other unsecured debt
of the Company, and shall rank senior to all issued and outstanding share
capital of the Company. All payments on the account of the principal
amount with respect to any of the Notes shall be applied ratably and
proportionately on all outstanding Notes on the basis of the principal amount of
the outstanding indebtedness represented thereby.
3. Interest;
Maturity. Interest shall accrue on the unpaid principal amount
of this Note from the Original Issuance Date at a rate equal to 8.00% per annum,
compounded annually. Subject to Section 4, principal and any accrued
but unpaid interest on this Note shall be due and payable on the earliest to
occur of (a) the Term Date, (b) the closing of the Next Equity Financing and
(c) receipt by the Company of written notice of the election of the
Required Lenders to accelerate the Loans following the occurrence of an Event of
Default.
4. Conversion.
(a) Conversion
Terms. At the written election of the Holder delivered to the
Company prior to the maturity or acceleration hereof (subject to the proviso in
the following sentence), the entire principal amount of and (at the Company’s
election) accrued
interest on this Note shall be converted into Ordinary Shares. At
least three days prior to the closing of the Next Equity Financing, the Company
shall notify the Holder in writing of the material terms thereof; provided, that any
material amendment subsequently made to such terms less than three days prior to
the closing of the Next Equity Financing shall require a new notification and
the Holder shall have the right to elect to convert this Note during the three
days following such new notification. In the event the Holder elects
to convert this Note, the number of Ordinary Shares to be issued upon such
conversion shall be equal to the quotient obtained by dividing (i) the entire
principal amount of this Note plus (if applicable) accrued interest by (ii) the
lesser of (x) the vol-
B-2
ume
weighted average price of the Company’s ADSs on Nasdaq for the 30 consecutive
trading days immediately prior to the Original Issuance Date and (y) if the
conversion is being made in connection with the Next Equity Financing, 90% of
the price per Ordinary Share paid by the investors in such Next Equity
Financing, rounded down to the nearest whole share. If the conversion
is being made in connection with the Next Equity Financing, the Holder will
participate in such Next Equity Financing on the same terms and conditions as
any other cash investor, including to receive, in addition to the Ordinary
Shares of the Company issuable upon conversion of the Note, warrants (the “Equity Financing
Warrants”) having the same terms as those, if any, issued to the
investors in the Next Equity Financing (the “Investor Warrants”),
representing a number of Ordinary Shares of the Company equal to the product of
(i) the number of Ordinary Shares of the Company represented by the Investor
Warrants, multiplied by (ii) the quotient of (x) the principal amount of and (if
applicable) interest on such Holder’s Note then being converted, divided by (y)
the aggregate gross proceeds received by the Company in such Next Equity
Financing. If the Company elects to convert accrued interest into
Ordinary Shares, such election shall apply equally to all of the
Notes. Upon such conversion, the Holder shall execute and deliver to
the Company all transaction documents related to the Next Equity Financing,
including a purchase agreement and other ancillary agreements, with customary
representations and warranties and transfer restrictions, and having the same
terms and conditions as those agreements entered into by the other purchasers in
the Next Equity Financing. For purposes of clarification, if a
conversion is done in connection with a Next Equity Financing (and 90% of the
price per Ordinary Share paid by the investors in such Next Equity Financing is
lower than the volume weighted average price of the Company’s ADSs on Nasdaq for
the 30 consecutive trading days immediately prior to the Original Issuance
Date), for each $0.90 of principal amount of Note so converted, the Holder shall
receive an amount of securities (units if applicable) equal to such amount that
would otherwise be issued to a purchaser in the Next Equity Financing if such
purchaser had paid $1.00 cash consideration. Under no circumstances
shall the Holder be required to surrender any outstanding warrants then held by
the Holder, including the Warrants issued in connection herewith, nor shall the
amount of securities issued in the Next Equity Financing made in connection with
a conversion hereunder be offset by such outstanding warrants.
(b) Payment of
Interest. Upon conversion of the principal amount of this Note
into the Company’s Ordinary Shares, any interest accrued on this Note that is
not converted into Ordinary Shares shall be promptly paid to the
Holder.
(c) Mechanics and Effect of
Conversion. No fractional shares of the Company’s capital
stock will be issued upon conversion of this Note. In lieu of any
fractional share to which the Holder would otherwise be entitled, the Company
will pay to the Holder in cash the amount that would otherwise be converted into
such fractional share. Upon conversion of this Note pursuant to this
Section 4, the Holder shall surrender this Note, duly endorsed to the
Company. At its expense, the Company will, as soon as practicable
thereafter, issue and deliver to (i) the Company’s ADS depositary, with a copy
to the Holder, irrevocable instructions to issue to the Holder one or more
account statements in the name of the Holder reflecting the issuance of ADSs
covering the number of Ordinary Shares into which this Note is converted and
(ii) the Holder payment for any cash amounts payable as described
herein. Upon conversion of this Note, the Company will be forever
released from all of its obligations and liabilities under this Note with regard
to that portion of the principal amount and (if applicable) accrued interest
being
B-3
converted
including without limitation the obligation to pay such portion of the principal
amount and accrued interest.
5. Registration
and Transfer of Note. The Company shall keep at its principal
office a register in which the Company shall provide for the registration and
transfer of this Note, in which the Company shall record the name and address of
the Holder and the name and address of each permitted transferee and prior owner
of the Note. The Holder shall notify the Company of any change of
name or address and promptly after receiving such notification the Company shall
record such information in such register. Prior to the maturity,
acceleration or conversion hereof, neither this Note nor any rights or interests
hereunder may be transferred in whole or in party by the Holder without the
prior written consent of the Company.
6. Loss or
Mutilation. Upon receipt of evidence reasonably satisfactory
to the Company of the ownership of and the loss, theft, destruction or
mutilation of this Note, and of indemnity reasonably satisfactory to it, and (in
the case of mutilation) upon surrender and cancellation of this Note, the
Company will execute and deliver in lieu thereof a new Note of like tenor as the
lost, stolen, destroyed or mutilated Note.
7. Payment
and Taxation. All payments to the Holder under this Note shall
be made in United States dollars, by remittance to such bank account as the
Holder may notify the Company in writing from time to time. Except as
otherwise required by law, the Company shall make all payments in respect of
this Note without withholding or deduction of or on account of any present or
future taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of the relevant governmental authority therein
or thereof. The Company shall pay any and all taxes (other than
income taxes) that may be payable in respect of the issuance or delivery of
Ordinary Shares upon conversion of this Note.
8. Governing
Law. THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICTS-OF-LAW PRINCIPLES THEREOF.
[signature page
follows]
IN
WITNESS WHEREOF, the Company has executed this Promissory Note as of the
Original Issuance Date set out above.
|
COMPANY:
|
|
AMARIN
CORPORATION PLC
|
|
By:
___________________________
|
|
Name:
|
|
Title:
|
B-4
EXHIBIT
C
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”) OR APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY,
MAY NOT BE OFFERED FOR SALE, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT THEREUNDER OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS THEREOF AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE
TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE
TO THE COMPANY.
AMARIN
CORPORATION PLC
[FORM
OF] WARRANT TO PURCHASE ORDINARY SHARES
Warrant
No.: [ ]
Date of
Issuance: July ___, 2009 (the “Original Issuance
Date”)
FOR VALUE
RECEIVED, Amarin Corporation plc, a company incorporated under the laws of
England and Wales (the “Company”),
hereby certifies
that [ ], the registered holder hereof or its permitted assigns (the
“Holder”),
is entitled,
subject to the terms set forth below, to purchase from the Company, at the
Exercise Price then in effect, upon surrender of this Warrant to Purchase
Ordinary Shares (including any Warrants to Purchase Ordinary Shares issued in
exchange, transfer or replacement hereof, the “Warrant”), at any time or times on
or after the date hereof, but not after 5:00 p.m., New York City Time, on the
Expiration Date, a number of fully paid nonassessable Ordinary Shares (the
“Warrant
Shares”) equal to the Initial Warrant Share Number, as may be adjusted
pursuant to the terms hereof.
1. Exercise
of Warrant.
(a) Mechanics of
Exercise. Subject to the terms and conditions hereof, this
Warrant may be exercised by the Holder on any day on or after the date hereof,
in whole or in part, by (i) delivery of this Warrant, together with a written
notice, in the form attached hereto as Annex I (the “Exercise
Notice”), of the Holder’s
election to exercise this Warrant and (ii) payment to the Company of an amount
equal to the applicable Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (the “Aggregate Exercise
Price”) in
cash or wire transfer of immediately available funds. Execution and
delivery of the Exercise Notice with respect to less than all of the Warrant
Shares shall have the same effect as cancellation of the original Warrant and
issuance of a new Warrant evidencing the right to purchase the remaining number
of Warrant Shares. As soon as practicable following the date on which
the Company has received each of the Exercise Notice and the Aggregate Exercise
Price (the “Exercise Delivery
Documents”), the Company shall
confirm receipt of the Exercise Delivery Documents to the Holder and deliver to
the Company’s ADS depositary, with a copy to the Holder, irrevocable
instructions to issue to the Holder one or more account statements in the name
of the Holder reflecting the issuance of ADSs covering the number of Ordinary
Shares for
C-1
which
this Warrant is exercised. Upon delivery of the Exercise Delivery
Documents, the Holder shall be deemed for all corporate purposes to have become
the holder of record of the Warrant Shares with respect to which this Warrant
has been exercised, irrespective of the date of delivery of the certificates
evidencing such Warrant Shares. If the number of Warrant Shares
represented by this Warrant submitted for exercise is greater than the number of
Warrant Shares being acquired upon such exercise, then the Company shall, not
later than five Business Days thereafter and at its own expense, issue a new
Warrant representing the right to purchase the number of Warrant Shares
purchasable immediately prior to such exercise under this Warrant, less the
number of Warrant Shares with respect to which this Warrant is
exercised. No fractional Ordinary Shares are to be issued upon the
exercise of this Warrant and in lieu of any such fraction the Company shall pay
the Holder an amount in cash equal to such fraction of the current fair market
value of the Ordinary Shares on the date of the Exercise Notice. The
Company shall pay any and all taxes which may be payable with respect to the
issuance and delivery of Warrant Shares upon exercise of this
Warrant.
(b) Insufficient Authorized
Shares. If at any time prior to the Expiration Date and while
the Warrant remains outstanding the Company does not have a sufficient number of
authorized and unissued Ordinary Shares to satisfy its obligation to reserve for
issuance upon exercise of the Warrant at least a number of Ordinary Shares (the
“Required Reserve
Amount”) equal to the number of Ordinary Shares for which the outstanding
Warrant is then exercisable, the Company shall promptly use its commercially
reasonable efforts to increase the Company’s authorized Ordinary Shares to an
amount sufficient to allow the Company to reserve the Required Reserve
Amount.
2. Adjustment
of Exercise Price and Number of Warrant Shares.
(a) In
the event of changes in the outstanding Ordinary Shares of the Company, on or
after the Original Issuance Date, by reason of a stock dividend, subdivision,
split-up, or combination of shares, the number of shares purchasable under the
Warrant in the aggregate and the Exercise Price shall be correspondingly
adjusted to give the Holder, on exercise for the same aggregate Exercise Price,
the total number of shares as the Holder would have owned had the Warrant been
exercised prior to the event requiring adjustment and had the Holder continued
to hold such shares until after such event. The form of this Warrant
need not be changed because of any adjustment in the Exercise Price and/or
number of Warrant Shares. 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 describe the event giving rise to the
adjustment and specify the Exercise Price and number of shares purchasable under
this Warrant after giving effect to such adjustment.
(b) If,
for any reason, prior to the exercise of the Warrant in full, the Company spins
off or otherwise divests itself of a part of its business or operations or
disposes all or a part of its assets (the “Spin Off”), in each
case in a transaction in which the Company does not receive compensation for
such business, operations or assets, but causes securities of another entity
(the “Spin Off
Securities”) to be issued to security holders of the Company, then the
Exercise Price of the Outstanding Warrant shall be adjusted immediately after
consummation of the Spin Off by multiplying the Exercise Price in effect
immediately prior to the Spin Off by a fraction (if,
C-2
but only
if, such fraction is less than 1.0), the numerator of which is the average
closing bid price of the Company’s ADSs for the five trading days immediately
following the fifth trading day after the record date (the “Record Date”) for
determining the amount and number of Spin Off Securities to be issued to
security holders of the Company, and the denominator of which is the average
closing bid price of the ADSs for the five trading days immediately preceding
the Record Date; and such adjusted Exercise Price shall be deemed to be the
Exercise Price with respect to the outstanding Warrant after the consummation of
the Spin Off.
3. Fractional
Shares. No fractional shares shall be issued upon the exercise
of this Warrant as a consequence of any adjustment pursuant
hereto. All Ordinary 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 Ordinary Share by such fraction
4. Certain
Events. In the event that, prior to the Expiration Date, 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 subsidiaries, 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 (10) 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. This Warrant will be binding upon the successors and
assigns of the Company upon an Event.
5. Other
Agreements of the Company.
(a) Notices of Corporate
Events. 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 (10) days prior to the date specified therein, 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.
C-3
(b) No
Impairment. Except and to the extent as waived or consented to
by the Holder in writing, the Company will not, by amendment of its
organizational documents or through any consolidation, merger, reorganization,
transfer of assets, dissolution, issuance or sale of securities or any other
action, avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed hereunder, and 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.
(c) Reservation of Ordinary
Shares. The Company agrees that it will at all times prior to
the Expiration Date, maintain and reserve a sufficient number of authorized but
unissued Ordinary Shares to provide for the full exercise of the
Warrant.
6. Transfers.
(a) Transfer
Restrictions. This Warrant may only be disposed of in
compliance with state and federal securities laws. In connection with
any transfer of this Warrant other than pursuant to an effective registration
statement or Rule 144 or to the Company, the Company may require the transferor
thereof to provide to the Company an opinion of counsel selected by the
transferor and reasonably acceptable to the Company, the form and substance of
which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of this Warrant under the
Securities Act. Subject to the foregoing, 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 Assignment Form attached hereto
as Annex II to
any authorized transferee designated by the Holder with a copy to the
Company
(b) Legend. The
Holder agrees to the imprinting, so long as is required by this Section 6, of a
legend on the Warrant or any of the Warrant Shares, in the following
form:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”) OR APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY,
MAY NOT BE OFFERED FOR SALE, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT THEREUNDER OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS THEREOF AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE
TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE
TO THE COMPANY.
(c) Legend
Removal. The Company shall, promptly following delivery by the
Holder of the certificate for this Warrant bearing a restrictive legend, issue a
certificate without such legend if, unless otherwise required by state
securities laws, (i) this Warrant is registered for resale under the Securities
Act, (ii) this Warrant is eligible to be freely sold without restriction under
Rule 144, or (iii) such legend is not required under applicable requirements of
the Securities Act (including judicial interpretations and pronouncements issued
by the staff of the Commission).
C-4
(d) Permitted
Transfers. If this Warrant is to be transferred, the Holder
shall surrender this Warrant to the Company, whereupon the Company will forthwith
issue and deliver
upon the order of the Holder a new Warrant, registered as the Holder may
request, representing the right to purchase the number of Warrant Shares being
transferred by the Holder and, if less then the total number of Warrant Shares
then underlying this Warrant is being transferred, a new Warrant to the Holder
representing the right to purchase the number of Warrant Shares not being
transferred.
(e) Loss or
Mutilation. Upon receipt of evidence reasonably satisfactory
to the Company of the ownership of and the loss, theft, destruction or
mutilation of this Warrant, and of indemnity reasonably satisfactory to it, and
(in the case of mutilation) upon surrender and cancellation of this Warrant, the
Company will execute and deliver in lieu thereof a new Warrant of like tenor as
the lost, stolen, destroyed or mutilated Warrant.
(f) Exchange for Multiple
Warrants. This Warrant is exchangeable, upon the surrender
hereof by the Holder at the principal office of the Company, for a new Warrant
or Warrants representing in the aggregate the right to purchase the number of
Warrant Shares then underlying this Warrant, and each such new Warrant will
represent the right to purchase such portion of such Warrant Shares as is
designated by the Holder at the time of such surrender; provided, that no
Warrants for fractional Ordinary Shares shall be given.
(g) Issuance of New
Warrants. Whenever the Company is required to issue a new
Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of
like tenor with this Warrant, (ii) shall represent, as indicated on the face of
such new Warrant, the right to purchase the Warrant Shares then underlying this
Warrant (or the Warrant Shares designated by the Holder which, when added to the
number of Ordinary Shares underlying the other new Warrants issued in connection
with such issuance, does not exceed the number of Warrant Shares then underlying
this Warrant), (iii) shall have an issuance date, as indicated on the face of
such new Warrant, which is the same as the Original Issuance Date, and (iv)
shall have the same rights and conditions as this Warrant.
7. Definitions. Undefined
capitalized terms used herein have the meanings ascribed thereto in the Loan
Agreement. As used herein, the following terms shall have the
following meanings:
(a) “Aggregate Exercise
Price” has the meaning set forth in Section 1(a).
(b) “Board” means the
board of directors of the Company.
(c) “Business Day” means
any day (excluding Saturdays, Sundays and public holidays) on which banks
generally are open for business in Xxx Xxxx Xxxx xxx Xxxxxx,
Xxxxxxx.
(d) “Company” has the
meaning set forth in the Preamble.
(e) “Control” means, with
respect to a Person, the possession, directly or indirectly, of (i) the power to
direct or cause the direction of the management and policies of such Person or
(ii) more than 50% of the aggregate voting power with respect to
such
C-5
Person,
in each case whether through the ownership of securities, by contract or
otherwise.
(f) “Distribution” has the
meaning set forth in Section 3.
(g) “Exercise Delivery
Documents” has the meaning set forth in Section 1(a).
(h) “Exercise Notice” has
the meaning set forth in Section 1(a).
(i) “Exercise Price” means
the price per Ordinary Share paid by the investors in the Next Equity
Financing.
(k) “Expiration Date” means the fifth
anniversary of the Original Issuance Date.
(k) “Event” has the
meaning set forth in Section 4.
(l) “Holder” has the
meaning set forth in the Preamble.
(m) “Initial Warrant Share
Number” means that number of Ordinary Shares equal to 50% (rounded down
to the nearest whole Ordinary Share) of the highest number of Ordinary Shares
into which the Note issued to the Holder is convertible from time to time
pursuant to Section 4(a) thereof. For the avoidance of doubt, the
Initial Warrant Share Number shall not include any Equity Financing Warrants (as
defined in the Notes).
(n) “Loan Agreement” means
the Bridge Loan Agreement, dated as of July ___, 2009, among the Company and the
Lenders party thereto.
(o) “Original Issuance
Date” has the meaning set forth in the Preamble.
(p) “Record Date” has the
meaning set forth in Section 2(b).
(q) “Required Reserve
Amount” has the meaning set forth in Section 1(b).
(r) “Securities Act” means
the Securities Act of 1933, as amended.
(s) “Spin-Off” has the
meaning set forth in Section 2(b).
(t) “Spin-Off Securities”
has the meaning set forth in Section 2(b).
(u) “Warrant” has the
meaning set forth in the Preamble.
(v) “Warrant Shares” has
the meaning set forth in the Preamble.
8. Miscellaneous. The
provisions of Article Six of the Loan Agreement are hereby incorporated, mutatis mutandis, by
reference.
[Signature Page
Follows]
C-6
IN
WITNESS WHEREOF, the Company has executed this Warrant as of the Original
Issuance Date set out above.
|
COMPANY:
|
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AMARIN
CORPORATION PLC
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By:
____________________________
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Name:
|
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Title:
|
ANNEX
I
EXERCISE
NOTICE
TO
BE EXECUTED BY THE HOLDER TO EXERCISE THIS
WARRANT
TO PURCHASE ORDINARY SHARES
AMARIN
CORPORATION PLC
This
notice constitutes the election of the undersigned holder to exercise the right
to purchase Ordinary Shares (“Warrant Shares”) of Amarin Corporation
plc, a company incorporated under the laws of England and Wales (the “Company”) pursuant to
the attached Warrant to Purchase Ordinary Shares (the “Warrant”). Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Warrant.
1. Form of Exercise
Price. The Holder hereby exercises the Warrant with respect to
_________________ Warrant Shares.
2. Payment of Exercise
Price. The holder hereby agrees to pay the Aggregate Exercise
Price in the sum of $_________________ to the Company in accordance with the
terms of the Warrant.
Date: _________________
___, ______
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________________________________
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Name
of Holder
|
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By:
________________________________
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Name:
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Title:
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ANNEX
II
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, subject to compliance with 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: ____________________________
|
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Title:
____________________________________
|
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Holder’s
Address: __________________________
|
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Holder’s
Telephone: ________________________
|
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Facsimile:
________________________________
|
|
Assignee
Tax ID No.:_______________________
|
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Assignee
Telephone: _______________________
|
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Assignee
Facsimile: ________________________
|
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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.
EXHIBIT D
REGISTRATION
RIGHTS
The
common shares and the warrant shares acquired by the investors at each closing
of the Next Equity Financing (the “Registrable Securities”) will be registered
for resale promptly following such closing. Accordingly, the purchase
agreement for the Next Equity Financing will provide that, among other things, a
registration statement would be filed within 60 days following each closing, and
the Company would use its best efforts to cause the registration statement to
become effective within 90 days following the date of filing of the relevant
registration statement. The Company will cause the registration
statement to remain effective until all of the Registrable Securities registered
under such registration statement are available for resale through Rule 144
under the Securities Act of 1933, as amended, or any successor provision
thereto, without any volume limitations.
The
holders of Registrable Securities will be entitled to unlimited piggyback
registration rights, subject to pro rata cutback, if applicable. All
expenses (including reasonable expenses of one counsel to the selling Investors)
will be paid by the Company (excluding underwriting commissions).
Until the
Registrable Securities are registered, the Company will not grant any additional
registration rights without the approval of the holders of a majority of the
Registrable Securities unless such rights are subordinate to the rights of the
investors.
D-1
SCHEDULE
2.1
COMPANY
WIRE INSTRUCTIONS
Lloyds
TSB
Xxxxxxx
Xxxxx
Xxx,
Xxxxxxxxx
XX0
0XX
Xxxxxx
Xxxxxxx
Account
Name: Amarin Corporation plc
Account
# 00000000
Swift
code: XXXXXX00000
Sort
Code: 30 - 93 - 05
IBAN
No: XX00 XXXX 0000 0000 0000 00
