Execution Copy
AMARIN CORPORATION PLC
0 XXXXXX XXXXXX
XXXXXX X0X 0XX
As of Xxxxx 00, 0000
Xxxxxxxx, N.A. - ADR Department
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Restricted ADSs
Ladies and Gentlemen:
Reference is made to the Deposit Agreement, dated as of March 29,
1993, as amended by Amendment No. 1 to Deposit Agreement, dated as of October 8,
1998, and as further amended by Amendment No. 2 to Deposit Agreement, dated as
of September 25, 2002 (the Deposit Agreement as amended by Amendment No.1 to
Deposit Agreement and Amendment No. 2 to Deposit Agreement, the "Deposit
Agreement"), by and among Amarin Corporation plc (formerly known as "Ethical
Holdings plc"), a corporation organized and existing under the laws of England
and Wales (the "Company"), Citibank, N.A., as Depositary (the "Depositary"), and
all Holders from time to time of American Depositary Receipts ("ADRs")
evidencing American Depositary Shares ("ADSs") issued thereunder. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Deposit Agreement.
The Company wishes establish a procedure to enable owners of its
ordinary shares, par value (pound)0.05 per share (the "Shares"), that constitute
"Restricted Securities" (as hereinafter defined and hereinafter used as so
defined) to hold such Shares in the form of ADSs and the Company may wish to
identify certain owners of Shares (directly or indirectly) that are Restricted
Securities (collectively, the "Share Owners"). The Company wishes to provide for
the issuance of ADSs representing Shares that are Restricted Securities provided
(a) the terms of deposit of such Shares and the ownership of ADSs by the Share
Owners neither (i) prejudice any substantial rights of existing Holders of ADSs
under the Deposit Agreement nor (ii) violate or conflict with any law, rule or
administrative position applicable to the ADSs, and (b) the Depositary agrees to
supplement the terms of the Deposit Agreement to accommodate a deposit of such
Shares by the Share Owners.
The purpose and intent of this Letter Agreement (the "Letter Agreement")
is to supplement the Deposit Agreement for the purpose of accommodating the (i)
issuance of "Restricted ADSs" (as hereinafter defined and hereinafter used as so
defined) at the request of the Company from time to time, (ii) the transfer and
sale of Restricted ADSs and (iii) certain ancillary transactions further
described below. The Company and the Depositary agree that this Letter Agreement
shall be filed as an exhibit under Item 3(c) of Form F-6 under the Securities
Act of 1933, as amended (the "Securities Act"), to the next Registration
Statement on Form F-6 filed with the Commission in respect of the ADSs after the
execution of this Letter Agreement.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Depositary hereby agree,
notwithstanding the terms of the Deposit Agreement, as follows:
1. Authority to Issue Restricted ADSs. The Deposit Agreement is
hereby supplemented to authorize the Depositary to establish, under the terms of
the Deposit Agreement and upon the written request and at the expense of the
Company, procedures enabling the deposit of Shares that constitute Restricted
Securities into the depositary receipts facility in order to permit the Share
Owners (such Shares, the "Restricted Shares" to hold their ownership interests
in such Restricted Shares in the form of ADSs issued under the terms of the
Deposit Agreement as supplemented hereby. The Depositary agrees to establish
procedures permitting the deposit of Restricted Shares into the depositary
receipts facility and the issuance of ADSs representing deposited Restricted
Shares (such ADSs, the "Restricted ADSs", and the ADRs evidencing such
Restricted ADSs, the "Restricted ADRs"), upon receipt of a written request from
the Company to accept certain specified Restricted Shares for deposit or as
otherwise set forth in this Letter Agreement. The Company agrees to assist the
Depositary in the establishment of such procedures and agrees that it shall take
all steps reasonably requested by the Depositary to ensure that the
establishment of such procedures does not prejudice any substantial rights of
existing Holders of ADSs and does not violate the provisions of the Securities
Act or any other applicable laws, rules or administrative positions applicable
to the ADSs including, without limitation, by entering into letter agreements
with the Depositary (each a "Supplemental Letter Agreement") to set forth the
specific terms of the procedures applicable to any specific deposit of
Restricted Shares and issuance and transfer of Restricted ADSs. The provisions
of this Letter Agreement shall apply to each tranche of Restricted ADSs and the
Restricted ADRs evidencing such Restricted ADSs. Each Supplemental Letter
Agreement shall apply only to the tranche of Restricted ADSs and the Restricted
ADRs evidencing such Restricted ADSs to which such Supplemental Letter Agreement
specifically relates. In the event that any conflict or inconsistency exists
between the terms of this Letter Agreement and the terms of any Supplemental
Letter Agreement, unless expressly agreed to in writing by the parties in such
Supplemental Letter Agreement, the terms of this Letter Agreement shall be
controlling.
Notwithstanding any other provisions of this Letter Agreement, the
depositors of the Restricted Shares and the holders of the Restricted ADSs may
be required to provide such additional written certifications, agreements or
other documents as the Depositary or the Company may deem reasonably necessary
or reasonably appropriate prior to (i) the deposit of Restricted Shares, (ii)
the transfer and sale of the Restricted ADRs and the Restricted ADSs evidenced
thereby, (iii) the removal of the transfer and other restrictions with respect
to Restricted ADSs/Restricted ADRs in order to create unrestricted ADSs/ ADRs,
or (iv) the withdrawal of the Restricted Shares represented by Restricted ADSs.
The Company shall provide to the Depositary in writing the legend(s) to be
affixed to the Restricted ADRs, which legend(s) shall (i) be in a form
reasonably satisfactory to the Depositary and (ii) set forth the specific
circumstances under which the Restricted ADRs and the Restricted ADSs evidenced
thereby may be transferred or sold, and the Restricted Shares withdrawn.
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Each tranche of Restricted ADSs issued upon the deposit of
Restricted Shares shall be separately identified on the books of the Depositary
under a unique CUSIP Number and the Restricted Shares on deposit in respect of
any tranche of Restricted ADSs shall be held separate and distinct by the
Custodian from the other Deposited Securities held by the Custodian in respect
of (i) the ADSs issued under the Deposit Agreement that are not Restricted ADSs,
and (ii) the Restricted ADSs of any separate tranche. Notwithstanding any other
provisions of this Letter Agreement or any provisions of the Deposit Agreement
to the contrary, each of the Restricted ADRs evidencing Restricted ADSs will be
substantially in the form attached hereto as Exhibit B (the "Form of Restricted
ADR"), and shall be registered initially in the name of the Share Owner or a
person designated by the Share Owner to hold the Restricted ADR for the benefit
of the such Share Owner, except, in each case, as the Depositary and the Company
may otherwise agree in writing.
The Restricted Shares and the Restricted ADSs shall not be eligible
for the prerelease transactions set forth in Section 5.11 of the Deposit
Agreement. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, The Depository
Trust Company ("DTC"). The Restricted ADSs shall not in any way be fungible with
the ADSs that are not Restricted ADSs issued under the terms of the Deposit
Agreement. Except as set forth in this Letter Agreement and except as required
by applicable law, the Restricted ADRs and the Restricted ADSs evidenced thereby
shall be subject to the terms of the Deposit Agreement and shall, to the maximum
extent permitted by law and to the maximum extent practicable, be treated as
ADRs and ADSs, respectively, issued and outstanding under, the terms of the
Deposit Agreement. In the event that, in determining the rights and obligations
of parties hereto or any holder of Restricted ADSs, any conflict arises between
(a) the terms of the Deposit Agreement and (b) the terms of this Letter
Agreement, the terms and conditions set forth in this Letter Agreement shall be
controlling and shall govern the rights and obligations of the parties
pertaining to the deposited Restricted Shares, the applicable Restricted ADSs
and the applicable Restricted ADRs.
The term "Restricted Securities" when used herein shall mean Shares
(and any ADSs representing such Shares) which (i) have been acquired directly or
indirectly from the Company or any of its Affiliates (as defined in Rule 144
under the Securities Act and hereinafter used as so defined) in a transaction or
chain of transactions not involving any public offering and are subject to
resale limitations under the Securities Act or the rules issued thereunder, or
(ii) are held by an officer or director (or persons performing similar
functions) or other Affiliate of the Company, or (iii) are subject to other
restrictions on sale or deposit, including, without limitation, restrictions on
sale or deposit under the laws of the United States, England, or under any
agreement applicable to the Shares and/or to the owner of such Shares, or the
Articles of Association of the Company or under the regulations of an applicable
securities exchange unless, in each case, such Shares (and any ADSs representing
such Shares) are being transferred or sold to persons other than an Affiliate of
the Company in a transaction (a) covered by an effective registration statement
under the Securities Act, or (b) exempt from the registration requirements of
the Securities Act and the Shares (and any ADSs representing such Shares) are
not, when held by such person(s), otherwise Restricted Securities.
2. Share Owner Deposits. The Company hereby consents, under Section
2.02 of the Deposit Agreement and Section 1 of this Letter Agreement, to the
deposit by the Share Owners (the list of Share Owners attached hereto as Exhibit
3
A, the "List of Initial Share Owners") of 26,940,098 Restricted Shares and the
issuance and delivery by the Depositary of the corresponding number of
Restricted ADSs (CUSIP No.: 0000000X0) in respect thereof, upon the terms of
this Letter Agreement, to the Share Owners or their respective designees
specified therein. The Restricted ADSs described in the immediately preceding
sentence, the Restricted Shares represented thereby, the Restricted ADRs
evidencing such Restricted ADSs and the Share Owners specified on the List of
Initial Share Owners are referred to herein as the "Designated Restricted ADSs",
the "Designated Shares", the "Designated Restricted ADRs", and the "Designated
Shareholders", respectively.
In furtherance of the foregoing, the Company requests the
Depositary, and the Depositary agrees upon the terms and subject to the
conditions set forth in this Letter Agreement, to (i) establish procedures to
enable (x) the deposit of the Shares with the Custodian by Share Owners (or
their designees, including as specified in the List of Initial Shareholders) in
order to enable the issuance and delivery by the Depositary to the Share Owners
(or their designees) of Restricted ADRs evidencing Restricted ADSs issued under
the terms of this Letter Agreement or any Supplemental Letter Agreement, and (y)
the transfer of the Restricted ADSs, the removal of the transfer and other
restrictions with respect to Restricted ADSs in order to create unrestricted
ADSs, and the withdrawal of the Shares, in each case upon the terms and
conditions set forth in the Deposit Agreement as supplemented by the terms of
this Letter Agreement and any such Supplemental Letter Agreement, and (ii) issue
Restricted ADSs evidenced by Restricted ADRs and to deliver such Restricted
ADRs, in each case upon the terms set forth herein and any applicable
Supplemental Letter Agreement, including, without limitation, the terms and
conditions set forth in Section 1 hereof.
The Company and the Depositary hereby acknowledge and agree that for
all purposes under Section 4.07 of the Deposit Agreement, the Holders of
Restricted ADSs shall be treated as Holders of ADSs and the voting instructions
of Holders of Restricted ADSs shall be considered voting instructions received
from Instructing Holders (as defined in Section 4.07 of the Deposit Agreement).
3. Company Assistance.
(a) The Company agrees to (i) provide commercially reasonable
assistance upon the request of and to the Depositary in the establishment of
such procedures to enable the acceptance of the deposit by the Share Owners of
Restricted Shares, the issuance of Restricted ADSs to the Share Owners or their
respective listed designees, the delivery of Restricted ADRs to the Share Owners
or their respective listed designees, the transfer of Restricted ADSs by the
Share Owners, the removal of the transfer and other restrictions with respect to
Restricted ADSs in order to create unrestricted ADSs, and the withdrawal of
Restricted Shares, and (ii) take all commercially reasonable steps requested by
the Depositary to ensure that the acceptance of the deposit of Restricted
Shares, the issuance of Restricted ADSs, the issuance and delivery of Restricted
ADRs, the transfer of Restricted ADSs, the removal of the transfer and other
restrictions with respect to Restricted ADSs in order to create unrestricted
ADSs, and the withdrawal of Restricted Shares, in each case upon the terms and
conditions set forth herein, do not prejudice any substantial existing rights of
Holders of ADSs and do not violate the provisions of the Securities Act or any
other applicable laws, rules or administrative positions.
4
In furtherance of the foregoing, at the time of the execution of this Letter
Agreement and each Supplemental Letter Agreement, the Company shall cause (A)
its U.S. counsel to deliver an opinion to the Depositary stating that the
deposit of the Shares by the Share Owners and the issuance and delivery of the
Restricted ADSs to the Share Owners (or their designees), in each case upon the
terms contemplated herein or therein, do not require registration under the
Securities Act, (B) its English counsel (which may be in-house counsel to the
Company) to deliver an opinion to the Depositary as to English law stating,
subject to such customary assumptions and reservations as they shall consider
necessary or appropriate, that (i) the Company has duly authorised, executed and
delivered the Letter Agreement or the Supplemental Letter Agreement, as
applicable, (ii) the Letter Agreement or the Supplemental Letter Agreement, as
applicable is a valid and binding agreement of the Company, (iii) the Company
has the necessary corporate power and authority to exercise its rights and
perform its obligations contained therein, (iv) the indemnity given by the
Company in the Letter Agreement or the Supplemental Letter Agreement, as
applicable, is an enforceable obligation of the Company and (v) the agreement in
the Letter Agreement or the Supplemental Letter Agreement, as applicable, to
permit the deposit of Shares constituting Restricted Securities into the
depositary receipts facility in order to permit the Share Owners to hold their
ownership interests in such Shares in the form of Restricted ADSs does not, by
reason of the Shares being Restricted Securities, violate any English corporate
or securities laws, and (C) an officer of the Company to deliver a certificate
stating that (i) none of the terms of this Letter Agreement or the Supplemental
Letter Agreement, as applicable, and none of the transactions contemplated
therein, conflict with any agreement to which the Company is a party, (ii) the
Shares being deposited are free of all liens, security interests and
encumbrances that have been noted in the Company's share register, and (iii) all
governmental approvals, permits, consents and authorizations known by the
Company to be required to be obtained by it in England for the transactions
contemplated in the Letter Agreement or the Supplemental Letter Agreement, as
applicable, have been obtained and are in full force and effect.
(b) In addition, (I) as soon as practicable after the date that a
registration statement under the Securities Act covering the resale of any of
the Restricted Shares has been declared effective by the Commission, the Company
may cause its U.S. counsel to deliver an opinion to the Depositary stating that
the resale of such Restricted Shares is covered by a registration statement
under the Securities Act that has been declared effective by the Commission and
(II) in the event that the effectiveness of such registration statement referred
to in (I) above has been terminated or suspended, the Company shall immediately
(i) notify the Depositary in writing of such suspension or termination and (ii)
instruct the Depositary as to the actions to be taken in respect of the
Restricted Shares and the Restricted ADSs affected by such suspension or
termination.
4. Limitations on Issuance of Desi2nated Restricted ADSs. In
connection with the transactions contemplated in Section 2 above, the Company
hereby instructs the Depositary, and the Depositary hereby agrees, upon the
terms and subject to the conditions set forth in this Letter Agreement, to issue
and deliver Designated Restricted ADSs only (x) upon receipt of (i) the
requisite number of Designated Shares, (ii) the opinions of counsel and
certificate identified in Section 3(b) hereof, and (iii) confirmation of the
payment by the Company of the applicable UK stamp duty taxes payable upon the
deposit of the Designated Shares, and (y) in the event of any corporate action
of the Company which results in the issuance of Restricted ADSs to the Holder(s)
of the Designated Restricted ADSs.
5
5. Stop Transfer Notation and Legend. The books of the Depositary
shall identify the Designated Restricted ADSs as "restricted" and shall contain
a "stop transfer" notation to that effect. The Designated Restricted ADRs shall
contain the following legend:
"THIS RESTRICTED AMERICAN DEPOSITARY RECEIPT ("RESTRICTED ADR"), THE
RESTRICTED AMERICAN DEPOSITARY SHARES ("RESTRICTED ADSs") EVIDENCED
HEREBY AND THE UNDERLYING RESTRICTED SHARES ("RESTRICTED SHARES") OF
THE COMPANY ARE SUBJECT TO THE TERMS OF THE LETTER AGREEMENT, DATED
AS OF MARCH 29, 2006 (THE "LETTER AGREEMENT"), AND THE DEPOSIT
AGREEMENT, DATED AS OF MARCH 29, 1993, AS AMENDED (AS SO AMENDED,
THE "DEPOSIT AGREEMENT"). ALL TERMS USED BUT NOT OTHERWISE DEFINED
HEREIN SHALL, UNLESS OTHERWISE SPECIFICALLY DESIGNATED HEREIN, HAVE
THE MEANING GIVEN TO SUCH TERMS IN THE LETTER AGREEMENT, OR IF NOT
DEFINED THEREIN, IN THE DEPOSIT AGREEMENT.
HOLDERS AND BENEFICIAL OWNERS OF THE RESTRICTED ADSs EVIDENCED BY
THIS RESTRICTED ADR BY ACCEPTING AND HOLDING THE RESTRICTED ADSs,
AND ANY INTEREST THEREIN, SHALL BE BOUND BY THE TERMS OF THE DEPOSIT
AGREEMENT AND THE LETTER AGREEMENT. AT THE TIME OF ISSUANCE OF THIS
CERTIFICATE, THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAD NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER ANY
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
(A) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT IN
A TRANSACTION REGISTERED OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS, OR (B) AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION OR QUALIFICATION REQUIREMENTS.
AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, EACH
OF THE DEPOSITARY AND THE COMPANY MAY REQUIRE THAT IT BE FURNISHED
WITH (i) A RESALE CERTIFICATION IN THE FORM ATTACHED TO THE LETTER
AGREEMENT, AND (ii) UNLESS A REGISTRATION STATEMENT IS EFFECTIVE
WITH RESPECT TO THE SECURITIES, AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE DEPOSITARY AND THE COMPANY TO THE EFFECT THAT NO
REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED FOR SUCH TRANSFER.
PRIOR TO THE WITHDRAWAL OF THE RESTRICTED SHARES, A HOLDER OF
6
RESTRICTED ADSs WILL BE REQUIRED TO PROVIDE TO THE DEPOSITARY AND TO
THE COMPANY A WITHDRAWAL CERTIFICATION IN THE FORM ATTACHED TO THE
LETTER AGREEMENT. THE FORM OF WITHDRAWAL CERTIFICATION AND RESALE
CERTIFICATION MAY BE OBTAINED FROM THE DEPOSITARY UPON REQUEST.
THE TRANSFER AND OTHER RESTRICTIONS SET FORTH HEREIN AND IN THE
LETTER AGREEMENT SHALL REMAIN APPLICABLE WITH RESPECT TO THESE
SECURITIES UNTIL SUCH TIME AS THE PROCEDURES SET FORTH IN THE LETTER
AGREEMENT FOR REMOVAL OF RESTRICTIONS ARE SATISFIED. NEITHER THE
COMPANY NOR THE DEPOSITARY MAKES ANY REPRESENTATION AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT FOR RESALE OF THE RESTRICTED SHARES OR THE RESTRICTED
ADSs. A COPY OF THE DEPOSIT AGREEMENT AND OF THE LETTER AGREEMENT
MAY BE OBTAINED FROM THE DEPOSITARY OR THE COMPANY UPON REQUEST."
6. Limitations on Transfer and Cancellation of Restricted ADSs. The
Restricted ADSs shall be transferable and eligible for cancellation only (i) in
the circumstances described in Sections 7, 8, 9 and 10 below, or (ii) as
otherwise contemplated in a Supplemental Letter Agreement. Transfers or
cancellations described in clause (ii) above shall, unless otherwise specified
in the applicable Supplemental Letter Agreement, also require the delivery to
the Depositary, (x) all applicable documentation otherwise contemplated by the
Deposit Agreement, this Letter Agreement and the Restricted ADR evidencing the
Restricted ADSs (including, without limitation, signature guarantees and
opinions of U.S. counsel), and (y) such other documents as may reasonably be
requested by the Depositary under the terms of the applicable Supplemental
Letter Agreement.
7. Limitations On Cancellation of Restricted ADSs. The Company
instructs the Depositary, and the Depositary agrees, except as may be
contemplated in a Supplemental Letter Agreement, not to release any Restricted
Shares or cancel any Restricted ADSs for the purpose of withdrawing the
underlying Restricted Shares unless (i) the conditions applicable to the
withdrawal of Restricted Shares from the depositary receipts facility created
pursuant to the terms of the Deposit Agreement have been satisfied (except for
any conditions relating to the Shares not being Restricted Securities),
including, without limitation, the Depositary's receipt of the Restricted ADRs
(duly endorsed and accompanied by the requisite signature guarantees, if so
required under the terms of the Deposit Agreement) evidencing such Restricted
ADSs and the applicable ADS cancellation fees payable under the terms of the
Deposit Agreement, and (ii) the Depositary shall have received from the person
requesting the withdrawal of the Restricted Shares a duly completed and signed
Withdrawal Certification substantially in the form attached hereto as Exhibit C
(such certification, a "Withdrawal Certification").
8. Exchange of Restricted ADSs for ADSs Upon Resale Covered by a
Resale Registration Statement. The Company instructs the Depositary, and the
Depositary agrees, except as may be contemplated in a Supplemental Letter
7
Agreement, to cancel Restricted ADRs and the Restricted ADSs evidenced thereby
and to issue and deliver freely transferable ADSs in respect thereof upon
receipt of (i) such Restricted ADRs (duly endorsed and accompanied by the
requisite signature guarantees, if so required under the terms of the Deposit
Agreement), and (ii) a duly completed and signed Resale Certification and
Issuance Instruction with respect to such Restricted ADSs, substantially in the
form attached hereto as Exhibit D (the "Resale Certification and Issuance
Instruction"), if the Depositary (x) shall prior thereto have received the
opinion of counsel specified in Section 3( c )(I) and (y) shall not prior
thereto have received notification from the Company described in Section
3(c)(II) above (or, after having received such notification, have received from
the Company a notification that the suspension referenced in a prior notice has
been lifted).
9. Exchange of Restricted ADSs for ADSs Pursuant to Rule 144(k). The
Company instructs the Depositary, and the Depositary agrees, except as may be
contemplated in a Supplemental Letter Agreement, to cancel Restricted ADRs and
the Restricted ADSs evidenced thereby and to issue and deliver freely
transferable ADSs in respect thereof, upon receipt of (i) such Restricted ADRs
(duly endorsed and accompanied by the requisite signature guarantees, if so
required under the terms of the Deposit Agreement), (ii) a duly completed and
signed Resale Certification and Issuance Instruction containing representations
of the transferor relating to the transfer of ADSs pursuant to Rule 144(k) of
the Securities Act, if prior thereto, the Depositary shall have received a legal
opinion of U.S. counsel reasonably satisfactory to the Depositary stating that
as of the date thereof a resale satisfying the conditions enumerated in Rule
144(k) of the Securities Act is exempt from registration under the Securities
Act and that the ADSs, upon transfer, will not be Restricted Securities.
10. Transfers and Cancellations of Restricted ADSs in Circumstances
Not Covered by Sections 7, 8 or 9. The Company instructs the Depositary, and the
Depositary agrees, except as may be contemplated in a Supplemental Letter
Agreement, to cancel Restricted ADRs and the Restricted ADSs evidenced thereby
and to issue and deliver freely transferable ADSs (or Shares, if applicable) in
respect thereof in circumstances not covered by Sections 7, 8 or 9, only (x)
upon receipt of (i) such Restricted ADRs (duly endorsed and accompanied by the
requisite signature guarantees, if so required under the terms of the Deposit
Agreement), (ii) a legal opinion of the Restricted ADR owner's U.S. counsel
stating that the transfer is exempt from registration under the Securities Act
and that the ADSs (or Shares, if applicable), upon transfer, will not be
Restricted Securities, and (iii) in the case of a transfer to a purchaser who
will receive freely transferable ADSs, a duly completed and signed Resale
Certification and Issuance Instruction containing the applicable representations
of the transferor, and (y) in the case of cancellation of Restricted ADSs, if
the conditions for cancellation of ADSs and withdrawal of Shares from the
depositary receipts facility created pursuant to the terms of the Deposit
Agreement have been satisfied upon receipt of a duly completed withdrawal
certification (containing such terms and conditions as the Company and
Depositary may agree are reasonably necessary for the cancellation being
contemplated).
11. Fungibility. Except as contemplated herein and in the applicable
Restricted ADR evidencing the Restricted ADSs and except as required by
applicable law, the Restricted ADSs shall, to the maximum extent permitted by
law and to the maximum extent practicable, be treated as ADSs issued and
8
outstanding under the terms of the Deposit Agreement that are not Restricted
ADSs, respectively. Nothing contained herein shall obligate the Depositary to
treat Holders of Restricted ADSs on terms more favorable than those accorded to
Holders of ADSs under the Deposit Agreement.
12. Certain Fees. In connection with the establishment and
maintenance by the Depositary of the Restricted ADS facility contemplated
herein, the Company and the Depositary have entered into a separate letter
agreement covering the Depositary's fees and reimbursable expenses.
13. Representations and Warranties. The Company hereby represents
and warrants that (a) the Designated Shares being deposited by the Share Owners
for the purpose of the issuance of Designated Restricted ADSs are validly
issued, fully paid and non-assessable, and free of any preemptive rights of the
holders of outstanding Shares, and (b) the Designated Shares are of the same
class as, and rank pari passu with, the other Shares on deposit under the
Deposit Agreement. Such representations and warranties shall survive the deposit
of the Designated Shares and the issuance of the Designated Restricted ADSs.
14. Indemnity. Each of the Company and the Depositary acknowledges
and agrees that the indemnification and other provisions of Section 5.08 of the
Deposit Agreement shall apply to the acceptance of Restricted Shares, including,
without limitation, Designated Shares for deposit, the issuance of Restricted
ADSs, including, without limitation, Designated Restricted ADSs, the delivery of
Restricted ADRs, including, without limitation, the Designated Restricted ADRs,
the transfer of such Restricted ADRs and of the Restricted ADSs evidenced
thereby, the addition/removal of the transfer and other restrictions set forth
herein with respect to ADSs/ADRs/Restricted ADSs/Restricted ADRs, and the
withdrawal of Restricted Shares, in each case upon the terms set forth herein,
as well as to any other acts performed or omitted by the Depositary as
contemplated by this Letter Agreement.
This Letter Agreement shall be interpreted and all the rights and
obligations hereunder shall be governed by the laws of the State of New York
without regard to the principles of conflicts of law thereof.
9
The Company and the Depositary have caused this Letter Agreement to
be executed and delivered on their behalf by their respective officers thereunto
duly authorized as of the date set forth above.
CITIBANK, N.A.
as Depositary
By:
-----------------------
Name:
Title:
AMARIN CORPORATION PLC
By: /s/ Xxxx Xxxxx
-----------------------
Name: XXXX XXXXX
Title: CFO
EXHIBITS
A List of Initial Share Owners
B Form of Restricted ADR
C Withdrawal Certification
D Resale Certification and Instruction Letter
The Company and the Depositary have caused this Letter Agreement to
be executed and delivered on their behalf by their respective officers thereunto
duly authorized as of the date set forth above.
CITIBANK, N.A.
as Depositary
By: /s/ Xxxx Xxxxxx
-----------------------
Name: XXXX XXXXXX
Title: VICE PRESIDENT
AMARIN CORPORATION PLC
By:
-----------------------
Name:
Title:
EXHIBITS
A List of Initial Share Owners
B Form of Restricted ADR
C Withdrawal Certification
D Resale Certification and Instruction Letter
EXHIBIT A
to
Letter Agreement, dated as of March 29, 2006
(the "Letter Agreement"), by and between
Amarin Corporation plc
and
Citibank, N.A.
-----------------------
LIST OF INITIAL SHARE OWNERS
-----------------------
--------------------------------------------------------------------------------------------------------------------------------
Number of
Nominee Name of Share Designated
Owner (if Restricted
Name of Share Owner applicable)(1) Address of Share Owner Shares Owned
--------------------------------------------------------------------------------------------------------------------------------
Southpoint Fund LP 000 Xxxxx Xxxxxx - 25th Floor 721,470
Xxx Xxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Southpoint Qualified Fund LP 000 Xxxxx Xxxxxx - 25th Floor 3,120,649
Xxx Xxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Southpoint Offshore Operating Fund LP 000 Xxxxx Xxxxxx - 00xx Xxxxx 3,583,624
Xxx Xxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Nominees Ltd 0-0 Xxxxxxxx Xxxxx 3,090,000
XXXX Xxxxx
Xxxxxx 0, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Fort Xxxxx Partners, L.P. 000 Xxxxxxxxxx Xxxxxx - 150,743
22nd floor
Xxx Xxxxxxxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Fort Xxxxx Master, LP 000 Xxxxxxxxxx Xxxxxx - 2,324,505
22nd floor
Xxx Xxxxxxxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Biotechnology Value Fund, L.P. 0 Xxxxxxx Xxxxxx - 00xx Xxxxx 801,980
Xxx Xxxxxxxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Biotechnology Value Fund II, L.P. 0 Xxxxxxx Xxxxxx - 00xx Xxxxx 504,950
Xxx Xxxxxxxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
----------
(1) Share Owners located outside the U.S. may designate a nominee to be the
registered holder of the Restricted ADRs.
A-1
--------------------------------------------------------------------------------------------------------------------------------
Number of
Nominee Name of Share Designated
Owner (if Restricted
Name of Share Owner applicable)(1) Address of Share Owner Shares Owned
--------------------------------------------------------------------------------------------------------------------------------
BVF Investments L.L.C. 0 Xxxxxxx Xxxxxx - 00xx Xxxxx 1,485,149
Xxx Xxxxxxxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Investment 10, L.L.C. 0 Xxxxxxx Xxxxxx - 00xx Xxxxx 178,218
Xxx Xxxxxxxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Domain Public Equity Partners, L.P. Xxx Xxxxxx Xxxxxx - Xxxxx 000 1,485,149
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxx XXX Xxxxx-Xxxxx 0 1,485,149
Xxxxxxxxx Xxxxxxxxx
Xxxxxx 000000, Xxxxxx
--------------------------------------------------------------------------------------------------------------------------------
IIU Nominees Limited IFSC House 693,069
Xxxxxx Xxxxx Xxxx
Xxxxxx 0, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Enable Opportunity Partners L.P. Xxx Xxxxx Xxxxxxxx - Xxxxx 000 99,010
Xxx Xxxxxxxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Enable Growth Partners L.P. Xxx Xxxxx Xxxxxxxx - Xxxxx 000 396,040
Xxx Xxxxxxxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Sunninghill Limited Kleinwort Xxxxxx House West 648,515
Centre
St. Helier
Jersey JE4 8PQ, Channel Islands
--------------------------------------------------------------------------------------------------------------------------------
Lyrical Opportunity Partners, L.P. 000 X. 00xx Xxxxxx - 33rd 396,040
Floor
Xxx Xxxx, XX 00000 XXX
--------------------------------------------------------------------------------------------------------------------------------
Lyrical Multi-Manager Offshore Fund, Ltd. 000 X. 00xx Xxxxxx - 33rd 297,030
Floor
Xxx Xxxx, XX 00000 XXX
--------------------------------------------------------------------------------------------------------------------------------
Lyrical Multi-Manager Fund, L.P. 000 X. 00xx Xxxxxx - 33rd 396,040
Floor
Xxx Xxxx, XX 00000 XXX
--------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxx 000 X. 00xx Xxxxxx - 33rd 742,574
Floor
Xxx Xxxx, XX 00000 XXX
--------------------------------------------------------------------------------------------------------------------------------
A-2
--------------------------------------------------------------------------------------------------------------------------------
Number of
Nominee Name of Share Designated
Owner (if Restricted
Name of Share Owner applicable)(1) Address of Share Owner Shares Owned
--------------------------------------------------------------------------------------------------------------------------------
Amarin Investment Holdings Limited Clarendon House 594,059
0 Xxxxxx Xxxxxx
Xxxxxxxx XX00, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Nite Capital, L.P. 000 X. Xxxx Xxxxxx 297,030
Suite 201
Xxxxxxxxxxxx, XX 00000, XXX
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx Xxxx 0 Xxxxx Xxxx Xxxx 247,525
IFSC
Xxxxxx 0, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Davy Crest Nominees, Ltd. Davy House 250,000
00 Xxxxxx Xxxxxx
Xxxxxx 0, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxxx x/x Xxxxxxxx 00 Xxxxxx Xxxxx Xxxxx 198,020
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx Woodlands, Xxxxx More 148,515
Athlone, Ireland
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxx 00 Xxxxx Xxxxxxxx Xxxxxx 175,000
Clontarf
Xxxxxx 0, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx IIU 108,911
IFSC House
Xxxxxx Xxxxx Xxxx
Xxxxxx 0, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx Mardleybury Manor 157,426
Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxx XX0 0XX
--------------------------------------------------------------------------------------------------------------------------------
The Jacob Tal Living Trust PO Box 7269 99,010
Xxxx, XX 00000 XXX
--------------------------------------------------------------------------------------------------------------------------------
Monarch Capital Fund Ltd. Xxxxxxx Xxxxx, 0xx Xxxxx 99,010
Waterfront Drive
Road Town
Tortola, British Virgin
Islands
--------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X'Xxxxxxx. Xxxx Xxxxx 98,986
Old Lone Hill Road
Enniskerry Co
Wicklow, Ireland
--------------------------------------------------------------------------------------------------------------------------------
Mayoran Ltd. HMYASDIM 79,178
Ramot Hshvim, Israel
--------------------------------------------------------------------------------------------------------------------------------
A-3
--------------------------------------------------------------------------------------------------------------------------------
Number of
Nominee Name of Share Designated
Owner (if Restricted
Name of Share Owner applicable)(1) Address of Share Owner Shares Owned
--------------------------------------------------------------------------------------------------------------------------------
Ori Shilo 12 Dufna SA, 65,647
Xxx Xxxx 00000
Xxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx Montserrat Torquay Road 49,505
Foxrock
Xxxxxx 00 Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx Silvermere 49,505
Killiney Heath
Killiney, Ireland
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxx Kirriemuir 49,505
Stilorgan Park
Xxxxxx 0, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx 00 Xxxxxxxx Xxxx 00,000
Xxxxxxxx
Xxxxxx 0, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
A-4
--------------------------------------------------------------------------------------------------------------------------------
Number of
Nominee Name of Share Designated
Owner (if Restricted
Name of Share Owner applicable)(1) Address of Share Owner Shares Owned
--------------------------------------------------------------------------------------------------------------------------------
Xxx Xxxxx Rear of 00 Xxxxxxxxxxxx Xxxx 19,802
Xxxxxxxxxx
Xxxxxx 0, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx 00 Xxxxx Xxxxxxxxx 0,000
Xxxxxx
Xxxxxx 0, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxx 31 Churchfields 9,901
Xxxxxxxx
Xxxxxx 00, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx 000 Xx. Xxxxx Xxxxx 100,000
Flatts
Smiths Fl-04
Bermuda
--------------------------------------------------------------------------------------------------------------------------------
ProSeed Capital Holdings CVA Vlierbeekberg 24,752
107
3090 Overijse, Belgium
--------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxx 000 Xxxxx Xxxxxx 000,000
Xxxxxxxx, Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 00 Xx. Xxxxxxx Xxxx 24,752
Xxxxxxxxxx
Xxxxxx XX0 0XX
Xxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xx. Xxxxxx Xxxxxxx Xxxx Park Palace, Block B 800,000
0 Xxxxxxx xx xx Xxxxxxxxx
Xxxxx Xxxxx 00000
Xxxxxxxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx Mount Judkin 40,000
Cashel Co. Tipperary
Republic of Ireland
--------------------------------------------------------------------------------------------------------------------------------
A-5
EXHIBIT B
to
Letter Agreement, dated as of March 29, 2006
(the "Letter Agreement"), by and between
Amarin Corporation plc
and
Citibank, N.A.
_____________________
FORM OF RESTRICTED ADR
_____________________
[to be attached]
[NOTE, THE FORM OF ADR WILL CONSIST OF EITHER THE PRE-PRINTED ADR
CERTIFICATED WITH THE LEGEND PRINTED OVER OR SAFETY PAPER
CERTIFICATE]
B-1
EXHIBIT C
to
Letter Agreement, dated as of March 29, 2006
(the "Letter Agreement"), by and between
Amarin Corporation plc
and
Citibank, N.A.
__________________________
WITHDRAWAL CERTIFICATION
__________________________
____________________,______
Citibank, N.A., as Depositary
c/o Agency & Trust Department
000 Xxxx Xxxxxx, 00xx Floor/Zone 0 Xxx
Xxxx, Xxx Xxxx 00000
Attn.: Broker Services
Amarin Corporation plc (Cusip No.: 0000000X0)
Dear Sirs:
Reference is hereby made to (i) the Deposit Agreement, dated as of
March 29, 1993, as amended by Amendment No. 1 to Deposit Agreement, dated as of
October 8, 1998, and as further amended by Amendment No. 2 to Deposit Agreement,
dated as of September 25, 2002 (the Deposit Agreement as amended by Amendment
No. I to Deposit Agreement and Amendment No. 2 to Deposit Agreement, the
"Deposit Agreement"), by and among Amarin Corporation plc (formerly known as
"Ethical Holdings plc"), a corporation organized and existing under the laws of
England (the "Company"), Citibank, N.A., as Depositary (the "Depositary"), and
all Holders from time to time of American Depositary Receipts (the "ADRs")
evidencing by American Depositary Shares ("ADSs") issued thereunder, and (ii)
the Letter Agreement, dated as of March 29, 2006 (the "Letter Agreement"), by
and between the Company and the Depositary. Capitalized terms used but not
defined herein shall have the meanings given to them in the Deposit Agreement,
or, in the event so noted herein, in the Letter Agreement.
This Withdrawal Certification is being furnished in connection with
the withdrawal of Shares (as defined in the Letter Agreement) upon surrender of
Restricted ADSs (as defined in the Letter Agreement) to the Depositary.
(A) We acknowledge, or, if we are acting for the account of another
person, such person has confirmed to us that it acknowledges, that
the Restricted ADSs and the Shares represented thereby have not been
registered under the Securities Act; and
C-1
(B) We certify that we, and, if we are not the beneficial owner, the
beneficial owner has certified that it, will sell the Shares in
compliance with the requirements of the U.S. securities laws
(including, without limitation, the applicable laws of the states of
the United States), and we, and, if we are not the beneficial owner,
the beneficial owner has certified that it, will not deposit, or
cause to be deposited, such Shares into any depositary receipts
facility established or maintained by a depositary bank other than a
restricted facility established and maintained for such purpose.
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By:
-----------------------
Name:
Title:
Date:
C-2
EXHIBIT D
to
Letter Agreement, dated as of March 29, 2006
(the "Letter Agreement"), by and between
Amarin Corporation plc
and
CITIBANK, N.A.
______________________
RESALE CERTIFICATION AND INSTRUCTION LETTER
______________________
_________________,______
Citibank, N.A., as Depositary
c/o Agency & Trust Department III Xxxx
Xxxxxx, 00xx Xxxxx/Xxxx 8 Xxx Xxxx, Xxx
Xxxx 00000
Attn.: Broker Services
Amarin Corporation plc (Cusip No.: 0000000X0)
Dear Sirs:
Reference is hereby made to (i) the Deposit Agreement, dated as of
March 29, 1993, as amended by Amendment No. 1 to Deposit Agreement, dated as of
October 8, 1998, and as further amended by Amendment No. 2 to Deposit Agreement,
dated as of September 25, 2002 (the Deposit Agreement as amended by Amendment
No. 1 to Deposit Agreement and Amendment No. 2 to Deposit Agreement, the
"Deposit Agreement"), by and among Amarin Corporation plc (formerly known as
"Ethical Holdings plc"), a corporation organized and existing under the laws of
England (the "Company"), Citibank, N.A., as Depositary (the "Depositary"), and
all Holders from time to time of American Depositary Receipts (the "ADRs")
evidencing by American Depositary Shares ("ADSs") issued thereunder, and (ii)
the Letter Agreement, dated as of March 29, 2006 (the "Letter Agreement"), by
and between the Company and the Depositary. Capitalized terms used but not
defined herein shall have the meanings given to them in the Deposit Agreement,
or, in the event so noted herein, in the Letter Agreement.
This Resale Certification is being provided in connection with our
request to the Depositary to transfer __________________(insert number) of
Restricted ADSs (CDSIP No.: 0000000X0) registered in the name of the undersigned
or the undersigned's designee in the form of freely transferable ADSs in
connection with our sale of such ADSs in a transaction exempt from registration
under the Securities Act or covered by a Registration Statement (the "Sale").
D-1
The undersigned certifies that (please check appropriate box below):
* |_| Sale Pursuant to Resale Registration Statement: (x) the Sale
pursuant to which its Restricted ADSs are being sold is covered by a
registration statement under the Securities Act that has been declared effective
by the Commission and is currently in effect, (y) the ADSs to be delivered upon
such sale are not "Restricted Securities" (as defined in the Letter Agreement),
and (z) the undersigned has satisfied all applicable prospectus delivery
requirements under the Securities Act,
OR
* |_| Sale Exempt from Registration (Rule 144(k) sales only): the
Restricted ADSs to be transferred and the Restricted Shares represented thereby
are not (x) held by an affiliate of the Company or a person who has been an
affiliate of the Company during the preceding three months, and (y) at least two
years has elapsed since the Restricted Shares represented by such Restricted
ADSs were acquired from the Company or an affiliate of the Company,
OR
** |_| Sale Exempt from Registration (Sales Other than Pursuant to
Rule 144(k)): the Restricted ADSs to be transferred and the Restricted Shares
represented thereby are being transferred in a transaction exempt from
registration under the Securities Act and the ADSs to be delivered upon transfer
are not "Restricted Securities" (as defined in the Letter Agreement.
----------
* The Company may have delivered the requisite opinion of counsel to cover this
transaction to the Depositary.
** The delivery of the requisite opinion of counsel to cover this transaction is
the responsibility of the selling Restricted ADS holder.
D-2
The undersigned hereby requests that the Depositary: (i) accept, for
the issuance of ADSs, the surrender of
Restricted ADR(s) (Certificate Number(s)):
____________________________________________
evidencing
____________________________________________
Restricted ADSs (CUSIP No.: 02231119E9), and
(ii) following confirmation of receipt by the Depositary of the surrender of the
Restricted ADR(s) provided for in (i) above, issue and deliver "free" the
following number of ADSs:
______________________
(CUSIP No.: 000000000)
to the person(s) identified below:
1. If ADSs are to be issued and delivered by means of book-entry transfer
to the DTC account of the undersigned:
-------------------------------------------------------------------
Name of DTC Participant acting for
undersigned:
-------------------------------------------------------------------
DTC Participant Account No.:
-------------------------------------------------------------------
Account No. for undersigned at DTC
Participant (f/b/o information):
-------------------------------------------------------------------
Onward Delivery Instructions of undersigned:
-------------------------------------------------------------------
Contact person at DTC Participant:
-------------------------------------------------------------------
Daytime telephone number of contact person at
DTC Participant:
-------------------------------------------------------------------
2. If ADSs are to be issued delivered in the form of an ADR:
-------------------------------------------------------------------
Name of Purchaser:
-------------------------------------------------------------------
Street Address:
-------------------------------------------------------------------
City, State, and Country:
-------------------------------------------------------------------
Nationality:
-------------------------------------------------------------------
Social Security or Tax
Identification Number:
-------------------------------------------------------------------
D-3
The undersigned hereby instructs the Depositary to cancel the
enclosed Restricted ADR evidencing the Restricted ADSs to be transferred to the
purchaser pursuant to the Sale and, if applicable, to reissue a Restricted ADR
evidencing the number of Restricted ADSs held by the undersigned and not
transferred pursuant to the Sale.
[NAME OF CERTIFYING OWNER]
By:
---------------------------
Name:
Title
Signature Guarantee:
------------------------------- ---------------------------
Name:
Title
D-4
