EQUITY CREDIT AGREEMENT BY AND BETWEEN AMARIN CORPORATION PLC AND BRITTANY CAPITAL MANAGEMENT LTD. Dated June 1, 2007
Exhibit
1
BY
AND
BETWEEN
AMARIN
CORPORATION PLC
AND
BRITTANY
CAPITAL MANAGEMENT LTD.
Dated
June
1,
2007
THIS
EQUITY CREDIT AGREEMENT is entered into the 1st day of June, 2007 (this
“AGREEMENT”), by and between BRITTANY CAPITAL MANAGEMENT LTD., a corporation
organized and existing under the laws of the Bahamas (“INVESTOR”), and AMARIN
CORPORATION PLC, a corporation organized and existing under the laws of England
and Wales (the “COMPANY”).
WHEREAS,
the parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to Investor, from time to time as
provided herein, and Investor shall purchase, up to Fifteen Million U.S. Dollars
($15,000,000) worth of American Depositary Receipts (as defined
below);
WHEREAS,
the Shares (as defined below) have been registered by the Company in the
Registration Statement, which has been declared effective by the SEC (as defined
below);
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
I
CERTAIN
DEFINITIONS
Section
1.1 DEFINED
TERMS. As used in this Agreement, the following terms shall have the
following meanings specified or indicated (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
“5-DAY
VALUATION PERIOD” shall mean, with respect to a particular Put, the period of
five (5) Trading Days immediately following the Put Date; provided, however,
that if a Valuation Event occurs during any 5-Day Valuation Period, a new 5-Day
Valuation Period shall begin on the Trading Day immediately after the occurrence
of such Valuation Event and end on the fifth (5th) Trading Day
thereafter.
“10-DAY
VALUATION PERIOD” shall mean, with respect to a particular Put, the period of
ten (10) Trading Days immediately following the Put Date; provided, however,
that if a Valuation Event occurs during any 10-Day Valuation Period, a new
10-Day Valuation Period shall begin on the Trading Day immediately after the
occurrence of such Valuation Event and end on the tenth (10th) Trading Day
thereafter.
“AGREEMENT”
shall have the meaning specified in the preamble hereof.
“AMERICAN
DEPOSITARY RECEIPTS” (or “ADRs”) shall mean the Company’s American Depositary
Shares representing the Ordinary Shares, as evidenced by
2
American
Depositary Receipts, which are traded on the Nasdaq Capital Market under the
symbol “AMRN”. For purposes of this Agreement, the American
Depositary Receipts are also referred to as “Shares.”
“AMERICAN
DEPOSITARY RECEIPT EQUIVALENTS” (or “ADR EQUIVALENTS”) shall mean any securities
that are convertible into or exchangeable for American Depositary Receipts
or
any options or other rights to subscribe for or purchase American Depositary
Receipts or any such convertible or exchangeable securities.
“BASE
PROSPECTUS” shall mean the Company’s prospectus, dated June 1, 2007, insofar as
it relates to any Put Shares, a preliminary form of which is included in the
Registration Statement.
“BID
PRICE” shall mean, for any Trading Day, the closing bid price for the ADRs on
the Principal Market on such Trading Day.
“BY-LAWS”
shall have the meaning specified in Section 4.7.
“CERTIFICATE”
shall have the meaning specified in Section 4.7.
“CLAIM
NOTICE” shall have the meaning specified in Section 8.3(a).
“CLOSING”
shall mean one of the closings of a purchase and sale of Shares pursuant to
Section 2.3.
“CLOSING
DATE” shall mean, with respect to a Closing, (a) if the 5-Day Valuation Period
applies, the seventh (7th) Trading Day following the Put Date related to such
Closing, and (b) if the 10-Day Valuation Period applies, the twelfth
(12th) Trading Day following the Put Date related to such Closing, or
in either case such earlier date as the Company and Investor shall agree,
provided all conditions to such Closing have been satisfied on or before such
Trading Day.
“COMMITMENT
PERIOD” shall mean the period commencing on the Effective Date, and ending on
the earlier of (i) the date on which Investor shall have purchased Put Shares
pursuant to this Agreement for an aggregate Purchase Price equal to the Maximum
Commitment Amount, (ii) the date this Agreement is terminated pursuant to
Section 2.5 or 9.6, or (iii) the date occurring thirty-six (36) months from
the
Effective Date.
“COMPANY”
shall have the meaning specified in the preamble to this Agreement.
“CONDITION
SATISFACTION DATE” shall have the meaning specified in Section
7.2.
3
“DAMAGES”
shall mean any loss, claim, damage, liability, costs and expenses (including,
without limitation, reasonable attorneys’ fees and disbursements and costs and
expenses of expert witnesses and investigation).
“DEPOSITARY
AGENT” shall mean the Company’s depositary agent for the ADRs on the Effective
Date and any substitute or replacement depositary agent for the ADRs upon the
Company’s appointment of any such substitute or replacement depositary
agent.
“DEPOSITARY
AGENT INSTRUCTIONS” shall mean the instructions for the Depositary Agent
attached hereto as Exhibit E.
“DISCOUNT”
shall mean four (4%) percent.
“DISPUTE
PERIOD” shall have the meaning specified in Section 8.3(a).
“EFFECTIVE
DATE” shall mean the date on which this Agreement is executed and delivered by
the Company and Investor.
“EXCHANGE
ACT” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
“FLOOR
PRICE” shall have the meaning specified in Section 2.1(b).
“INDEMNIFIED
PARTY” shall have the meaning specified in Section 8.3(a).
“INDEMNIFYING
PARTY” shall have the meaning specified in Section 8.3(a).
“INDEMNITY
NOTICE” shall have the meaning specified in Section 8.3(b).
“INVESTMENT
AMOUNT” shall mean, with respect to a particular Put, the dollar amount to be
invested by Investor to purchase Put Shares with respect to such Put as notified
by the Company to Investor in accordance with Section 2.2.
“INVESTOR”
shall have the meaning specified in the preamble to this Agreement.
“MARKET
PRICE” shall mean, with respect to a particular Put, either (a) if the Company
specifies in the Put Notice that the 5-Day Valuation Period shall be used,
the
average of the Bid Prices for the 5-Day Valuation Period or (b) if the Company
specifies in the Put Notice that the 10-Day Valuation Period shall be used,
the
average of the Bid Prices for the 10-Day Valuation Period, in each case,
immediately following the Put Date.
4
“MATERIAL
ADVERSE CHANGE” shall mean any condition, circumstance, or situation that would
prohibit the Company from performing its obligation to deliver
freely-tradable Shares pursuant to this Agreement.
“MATERIAL
ADVERSE EFFECT” shall mean a material adverse effect on the business,
operations, properties or financial condition of the Company and its
subsidiaries, taken as a whole.
“MAXIMUM
COMMITMENT AMOUNT” shall mean Fifteen Million U. S. Dollars
($15,000,000).
“MAXIMUM
PUT AMOUNT” shall mean, with respect to any Put, the lesser of (a) Three Million
U.S. Dollars ($3,000,000), or (b) three hundred percent (300%) of the Weighted
Average Volume for the twenty (20) Trading Days immediately preceding the Put
Date.
“NASD”
shall mean the National Association of Securities Dealers, Inc.
“NASDAQ”
shall mean The Nasdaq Stock Market, Inc.
“ORDINARY
SHARES” shall mean the
ordinary shares of the Company, par value 5 xxxxx per share.
“OUTSTANDING”
shall mean, with respect to the Ordinary Shares at any date as of which the
number of Ordinary Shares is to be determined, all issued and outstanding
Ordinary Shares, including Ordinary Shares issuable in respect of outstanding
convertible securities, issued and outstanding ADRs and ADR Equivalents, scrip,
and certificates representing fractional interests in Ordinary Shares; provided,
however, that Outstanding shall not include any Ordinary Shares then directly
or
indirectly owned or held by or for the account of the Company.
“PERSON”
shall mean an individual, a corporation, a partnership, an association, a trust
or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
“PRINCIPAL
MARKET” shall mean the Nasdaq Global Market, the Nasdaq Capital Market, the Over
the Counter Bulletin Board, the American Stock Exchange or the New York Stock
Exchange, whichever is at the time the principal trading exchange or market
for
the Shares.
“PROSPECTUS”
shall mean the Base Prospectus, together with any final prospectus filed with
the Commission pursuant to Rule 424(b), as supplemented by any Prospectus
Supplement.
5
“PROSPECTUS
SUPPLEMENT” shall mean any prospectus supplement to the Base Prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities Act relating
to
any Put Shares.
“PURCHASE
PRICE” shall mean, with respect to a Put, the Market Price on the date on which
the Purchase Price is calculated in accordance with the terms and conditions
of
this Agreement less the product of the Discount and the Market
Price.
“PUT”
shall mean each occasion that the Company elects to exercise its right to
deliver a Put Notice requiring Investor to purchase Shares, subject to the
terms
and conditions of this Agreement.
“PUT
DATE” shall mean the Trading Day during the Commitment Period that a Put Notice
is deemed delivered pursuant to Section 2.2(b).
“PUT
NOTICE” shall mean a written notice, substantially in the form of Exhibit A
hereto, to Investor setting forth the Investment Amount with respect to which
the Company intends to require Investor to purchase Shares pursuant to the
terms
of this Agreement.
“PUT
SHARES” shall mean all Shares issued or issuable pursuant to a Put that has been
exercised or may be exercised in accordance with the terms and conditions of
this Agreement.
“REGISTRATION
STATEMENT” shall mean the registration statement on Form F−3, File Number
333−135718, filed by the Company with the SEC under the Securities Act for the
registration of the Shares, as such Registration Statement may be amended and
supplemented from time to time.
“SALE
PRICE” shall mean, for any Trading Day, the closing sale price for the ADRs on
the Principal Market on such Trading Day.
“SEC”
shall mean the Securities and Exchange Commission.
“SECURITIES
ACT” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“SEC
DOCUMENTS” shall mean, as of a particular date, all reports and other documents
filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act
since the beginning of the Company’s then most recently completed fiscal year as
of the time in question (provided that if the date in question is within ninety
days of the beginning of the Company’s fiscal year, the term shall include all
documents filed since the beginning of the second preceding fiscal
year).
6
“THIRD
PARTY CLAIM” shall have the meaning specified in Section 8.3(a).
“TRADING
DAY” shall mean any day during which the Principal Market shall be open for
business.
“TRANSACTION
DOCUMENTS” means this Agreement, the Closing Certificate and the Depositary
Agent Instructions.
“VALUATION
EVENT” shall mean an event in which the Company at any time during a Valuation
Period takes any of the following actions:
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(a)
|
subdivides
or combines the Ordinary Shares (including
ADRs);
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(b)
|
pays
a dividend in Ordinary Shares or makes any other distribution of
Ordinary
Shares, except for dividends paid with respect to preference
shares;
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(c)
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issues
any options or other rights to subscribe for or purchase Ordinary
Shares
and the price per share for which Ordinary Shares may at any time
thereafter be issuable pursuant to such options or other rights shall
be
less than the Sale Price in effect immediately prior to such
issuance;
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(d)
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issues
any securities convertible into or exchangeable for Ordinary Shares
and
the consideration per share for which Ordinary Shares may at any
time
thereafter be issuable pursuant to the terms of such convertible
or
exchangeable securities shall be less than the Sale Price in effect
immediately prior to such issuance;
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(e)
|
issues
Ordinary Shares otherwise than as provided in the foregoing
subsections (a) through (d), at a price per share less, or for other
consideration lower, than the Sale Price in effect immediately prior
to
such issuance, or without consideration;
or
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(f)
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makes
a distribution of its assets or evidences of indebtedness to the
holders
of Ordinary Shares as a dividend in liquidation or by way of return
of
capital or other than as a dividend payable out of earnings or
surplus legally available for dividends under applicable law or any
distribution to such holders made in respect of the sale of all
or substantially all of the Company’s assets (other than under the
circumstances
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7
provided
for in the foregoing subsections (a) through (e)).
“VALUATION
PERIOD” shall mean the 5-Day Valuation Period or the 10-Day Valuation Period, as
applicable.
“WEIGHTED
AVERAGE VOLUME” shall mean the average of the Weighted Volume for the relevant
days.
“WEIGHTED
VOLUME” shall mean the product of (a) the Bid Price times (b) the volume on the
Principal Market.
ARTICLE
II
PURCHASE
AND SALE OF AMERICAN DEPOSITARY RECEIPTS
Section
2.1 INVESTMENTS.
(a) PUTS.
Upon the terms and conditions set forth herein (including, without limitation,
the provisions of Article VII), on any Put Date the Company may, in its sole
discretion, exercise a Put by the delivery of a Put Notice. The number of Put
Shares that Investor shall purchase pursuant to such Put shall be determined
by
dividing the Investment Amount specified by the Company in the Put Notice by
the
Purchase Price with respect to such Put, which Purchase Price shall be
determined using the Valuation Period specified by the Company in the Put
Notice. For the avoidance of doubt, nothing herein shall prevent a
Put from being exercised during a Valuation Period relating to another Put,
and
Valuation Periods relating to different Puts may overlap, provided that in
no
event shall there be more than two (2) Put Notices outstanding at any one
time.
(b) FLOOR
PRICE. With respect to any Put, in the event that during a Valuation Period,
the
Bid Price for any Trading Day falls below ninety-three percent (93%) of the
Bid
Price for the Trading Day ending immediately prior to the Put Date (a
“Floor Price”), then for each such Trading Day the Company shall have no right
and shall be under no obligation to sell, and the Investor shall have no right
and shall be under no obligation to purchase (i) one fifth (1/5th) of the
Investment Amount specified in such Put in the event the 5-Day Valuation Period
is used to determine the Market Price for such Put or (ii) one tenth (1/10th)
of
the Investment Amount specified in such Put in the event the 10-Day Valuation
Period is used to determine the Market Price for such Put, and the Investment
Amount for such Put shall accordingly be deemed reduced by such amount for
each
such Trading Day. In the event that during a Valuation Period the Bid
Price for any three (3) Trading Days—not necessarily consecutive—falls below the
Floor Price, then such Put shall terminate on such third Trading Day
(“Termination Day”), and the Investment Amount for such Put shall be adjusted to
include only (x) in the event the 5-Day Valuation Period is used to determine
the Market Price for such Put, one fifth (1/5) of the Investment Amount for
each
Trading Day during the 5-Day Valuation Period prior to the Termination Day
that
the Bid Price equals or
8
exceeds
the Floor Price and (y) in the event the 10-Day Valuation Period is used to
determine the Market Price for such Put, one tenth (1/10) of the Investment
Amount for each Trading Day during the 10-Day Valuation Period prior to the
Termination Day that the Bid Price equals or exceeds the Floor
Price.
Section
2.2
MECHANICS.
(a) PUT
NOTICE. At any time during the Commitment Period, the Company may deliver a
Put
Notice to Investor, subject to the conditions set forth in Section 7.2;
provided, however, that the Investment Amount for each Put as designated by
the
Company in the Put Notice shall not be more than the Maximum Put
Amount.
(b) DATE
OF DELIVERY OF PUT NOTICE. A Put Notice shall be deemed delivered on (i) the
Trading Day it is received by facsimile or otherwise by Investor if such notice
is received on or prior to 9:30 AM, New York time, or (ii) the immediately
succeeding Trading Day if it is received by facsimile or otherwise after 9:30
AM, New York time on a Trading Day or at anytime on a day which is not a Trading
Day.
Section
2.3 CLOSINGS. On
the Closing Date and provided all conditions to Closing have been satisfied
by
the Company, the Investor shall wire transfer to the Company the Investment
Amount for such Put, whereupon the Company shall use its commercially reasonable
efforts to cause the Depositary Agent to electronically transmit the Put Shares
by crediting the account of the Investor’s prime broker with The Depository
Trust Company through its Deposit Withdrawal Agent Commission (DWAC)
system. In addition, on or prior to such Closing Date, each of the
Company and Investor shall deliver all documents, instruments and writings
required to be delivered or reasonably requested by either of them pursuant
to
this Agreement in order to implement and effect the transactions contemplated
herein. Upon agreement of the parties, an interim or partial Closing
for a Put may occur prior to the end of the Valuation Period for such
Put.
Section
2.4
PROSPECTUS SUPPLEMENT. On the first Trading Day immediately following
the end of the applicable Valuation Period for each Put, the Company shall
file
with the SEC a Prospectus Supplement disclosing the number of Shares to be
issued and sold to the Investor thereunder, the total purchase price therefor
and the net proceeds to be received by the Company therefrom.
Section
2.5 TERMINATION
OF INVESTMENT OBLIGATION. The obligation of Investor pursuant to this Agreement
to purchase Shares shall terminate (excluding with respect to a Closing Date
that has not yet occurred) in the event that (a) there shall occur any stop
order or suspension of the effectiveness of the Registration Statement for
an
aggregate of sixty (60) Trading Days during the Commitment Period as a result
of
corporate developments subsequent to the Effective Date that would require
the
Registration Statement to be amended to reflect such event in order to maintain
its compliance with the disclosure requirements of the Securities Act, (b)
the
ADRs shall cease to be listed on a Principal
9
Market
for an aggregate of sixty (60) Trading Days during the Commitment Period, (c)
the Company, at any time during the Commitment Period, effects a merger or
consolidation of the Company with or into, or a transfer of all or substantially
all of the assets of the Company to, another entity and the resulting successor
or acquiring entity (if not the Company) fails to assume by written instrument
the obligation to deliver to Investor such ADRs and/or securities as Investor
is
entitled to receive pursuant to this Agreement, or (d) the Company shall
unilaterally terminate this Agreement pursuant to Section 9.6.
Section
2.6 CERTAIN
LIMITATIONS. Notwithstanding anything to the contrary contained
herein, if, on any Closing Date, the number of Put Shares then to be purchased
pursuant to a Put Notice by Investor would, when aggregated with all other
Shares then held by Investor, cause Investor to beneficially own in excess
of
4.999% of the total number of issued and outstanding Ordinary Shares after
giving effect to the Put (the “Percentage Cap”), then the number of Put Shares
shall be reduced to the extent necessary for Investor’s beneficial ownership of
Ordinary Shares, after giving effect to the Put, not to exceed the Percentage
Cap. For such purposes, beneficial ownership shall be determined in
accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. In the event the number of Put Shares with
respect to any Put are required to be reduced pursuant to this Section 2.6,
Investor shall provide, via facsimile, as soon as possible on the Closing Date,
and in no event later than 12:00 p.m. EST, a notice to the Company setting
forth
the maximum number of Shares issuable pursuant to such put which would not
result in Investor’s beneficial ownership exceeding the Percentage
Cap. In addition, Investor agrees to promptly notify the Company in
writing in the event Investor shall at any time holds 2.9% or more of the total
number of issued and outstanding Ordinary Shares.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF INVESTOR
Investor
represents and warrants to the Company that:
Section
3.1
INTENT. Investor is entering into this Agreement for its own account and
Investor has no present arrangement (whether or not legally binding) at any
time
to sell the ADRs to or through any person or entity; provided,
however, Investor reserves the right to dispose of the ADRs at any
time in accordance with federal and state securities laws applicable to such
disposition.
Section
3.2 SOPHISTICATED
INVESTOR. Investor is a sophisticated investor (as described in Rule
506(b)(2)(ii) of Regulation D) and an accredited investor (as defined in Rule
501 of Regulation D), and Investor has such experience in business and financial
matters that it is capable of evaluating the merits and risks of an investment
in the ADRs. Investor acknowledges that an investment in the ADRs is speculative
and involves a high degree of risk.
10
Section
3.3 AUTHORITY.
(a) Investor has the requisite power and authority to enter into and perform
its
obligations under this Agreement and the transactions contemplated hereby in
accordance with its terms; (b) the execution and delivery of this Agreement,
and
the consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary action and no further consent or authorization
of
Investor or its partners is required; and (c) this Agreement has been duly
authorized and validly executed and delivered by Investor and is a valid and
binding agreement of Investor enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, or similar laws relating
to, or affecting generally the enforcement of, creditors’ rights and remedies or
by other equitable principles of general application.
Section
3.4 NOT
AN AFFILIATE. Investor is not an officer, director or “affiliate” (as that term
is defined in Rule 405 of the Securities Act) of the Company.
Section
3.5 ORGANIZATION
AND STANDING. Investor is a corporation duly organized, validly existing and
in
good standing under the laws of the Bahamas, and has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. Investor is duly qualified as a foreign corporation
to
do business and is in good standing in every jurisdiction in which the nature
of
the business conducted or property owned by it makes such qualification
necessary, other than those in which the failure so to qualify would not have
a
material adverse effect on Investor.
Section
3.6 ABSENCE
OF CONFLICTS. The execution and delivery of this Agreement and any other
document or instrument contemplated hereby, and the consummation of the
transactions contemplated hereby and thereby, and compliance with the
requirements hereof and thereof, will not (a) violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on Investor, (b)
violate any provision of any indenture, instrument or agreement to which
Investor is a party or is subject, or by which Investor or any of its assets
is
bound, or conflict with or constitute a material default thereunder, (c) result
in the creation or imposition of any lien pursuant to the terms of any such
indenture, instrument or agreement, or constitute a breach of any fiduciary
duty
owed by Investor to any third party, or (d) require the approval of any
third-party (that has not been obtained) pursuant to any material contract,
instrument, agreement, relationship or legal obligation to which Investor is
subject or to which any of its assets, operations or management may be
subject.
Section
3.7 DISCLOSURE;
ACCESS TO INFORMATION. Investor has received all documents, records, books
and
other information pertaining to Investor’s investment in the Company that have
been requested by Investor. Investor has reviewed or received copies of the
SEC
Documents.
Section
3.8 FINANCIAL
CAPABILITY. Investor presently has the financial capacity and the necessary
capital to perform its obligations hereunder and shall and has provided to
the
Company such financial and other information that the Company
has
11
requested
to demonstrate such capacity.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to Investor that, except as disclosed in the
SEC
Documents:
Section
4.1 ORGANIZATION
OF THE COMPANY. The Company is a corporation duly organized and validly existing
under the laws of England and Wales, and has all requisite power and authority
to own, lease and operate its properties and to carry on its business as now
being conducted. The Company is duly qualified as a foreign corporation to
do
business and is in good standing in every state of the United States of America
in which the nature of the business conducted or property owned by it makes
such
qualification necessary, other than those in which the failure so to qualify
would not reasonably be expected to result in a Material Adverse
Effect.
Section
4.2 AUTHORITY.
(a) The Company has the requisite corporate power and authority to enter into
and perform its obligations under this Agreement and to issue the Put Shares;
(b) the execution and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required; and (c) this Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws relating to, or affecting generally the enforcement of, creditors’ rights
and remedies or by other equitable principles of general
application.
Section
4.3 CAPITALIZATION. As
of June 1, 2007, the authorized capital stock of the Company
consisted of the following: 440,855,934 preference shares, par value 5 xxxxx
per
share and 1,559,144,066 Ordinary Shares. All of the issued Ordinary
Shares have been duly and validly authorized and issued and are fully paid
and
nonassessable.
Section
4.4 AMERICAN
DEPOSITARY SHARES. The Company has registered its American Depositary Shares
pursuant to Section 12(b) or 12(g) of the Exchange Act and is in full compliance
with all reporting requirements of the Exchange Act, and such American
Depositary Shares are currently listed or quoted on the Principal Market. There
is an effective Depositary Agreement in effect with the Depositary Agent. As
of
the Effective Date, the Principal Market is the NASDAQ Capital
Market.
Section
4.5 SEC
DOCUMENTS. True and complete copies of the SEC Documents on file as of the
Effective Date are available on the SEC’s XXXXX system. To
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the
Company’s knowledge, the Company has not provided to Investor any information
that, according to applicable law, rule or regulation, should have been
disclosed publicly prior to the date hereof by the Company, but which has not
been so disclosed. As of their respective dates, the SEC Documents complied
in
all material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be, and other federal and state laws, rules and
regulations applicable to such SEC Documents, and none of the SEC Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
Documents comply as to form and substance in all material respects with
applicable accounting requirements and the published rules and regulations
of
the SEC or other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
(except (a) as may be otherwise indicated in such financial statements or the
notes thereto or (b) in the case of unaudited interim statements, to the extent
they may not include footnotes or may be condensed or summary statements) and
fairly present in all material respects the financial position of the Company
as
of the dates thereof and the results of operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments), except in each case to the extent matters affecting
same are generally publicly known or have been publicly announced by the
Company.
Section
4.6 VALID
ISSUANCES. When issued and paid for as herein provided, the Put
Shares shall be duly and validly issued, fully paid, and nonassessable. Neither
the sales of the Put Shares pursuant to, nor the Company’s performance of its
obligations under, this Agreement shall (a) result in the creation or imposition
of any liens, charges, claims or other encumbrances upon the Put Shares or
any
of the assets of the Company, or (b) entitle the holders of Outstanding Ordinary
Shares to preemptive or other rights to subscribe to or acquire Ordinary Shares
or other securities of the Company.
Section
4.7 CORPORATE
DOCUMENTS. The Company has furnished or made available to Investor true and
correct copies of the Company’s Memorandum of Association (or Formation), as
amended and in effect on the date hereof (the “CERTIFICATE”), and the Company’s
Articles, as amended and in effect on the date hereof (the
“BY-LAWS”).
Section
4.8 NO
CONFLICTS. The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby, including without limitation the issuance of the Put Shares do not
and
will not (a) result in a violation of the Certificate or By-Laws or (b) conflict
with, or constitute a material default (or an event that with notice or lapse
of
time or both would become a material default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any material
agreement, indenture, instrument or any “lock-up” or similar provision of any
underwriting or similar agreement to which the Company is a party, or (c) result
in a violation of any federal, state, local or foreign law,
rule,
13
regulation,
order, judgment or decree (including federal and state securities laws and
regulations) applicable to the Company or by which any property or asset of
the
Company is bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect); provided, however, that for purposes of the Company’s
representations and warranties as to violations of foreign law, rule or
regulation referenced in clause (c), such representations and warranties are
made only to the Company’s knowledge insofar as the execution, delivery
and performance of this Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby are or may be affected
by
the status of Investor under or pursuant to any such foreign law, rule or
regulation. The business of the Company is not being conducted in violation
of
any law, ordinance or regulation of any governmental entity, except for possible
violations that either singly or in the aggregate would not reasonably be
expected to result in a Material Adverse Effect. The Company is not required
under federal, state or local law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with, any court
or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or issue and sell the Put Shares in accordance
with the terms hereof (other than any SEC, NASD or state securities filings
that
may be required to be made by the Company subsequent to any Closing, the
Registration Statement that may be filed pursuant hereto, and any shareholder
approval required by the rules applicable to companies whose common stock trades
on the NASDAQ Capital Market); provided that, for purposes of the representation
made in this sentence, the Company is assuming and relying upon the accuracy
of
the relevant representations and agreements of Investor herein.
ARTICLE
V
COVENANTS
OF INVESTOR
Section
5.1 COMPLIANCE
WITH LAW. Investor’s trading activities with respect to the Shares will be in
compliance with all applicable state and federal securities laws, rules and
regulations and the rules and regulations of the NASD and the Principal Market
on which the Shares are listed.
Section
5.2 TRADING. The
Investor agrees not to conduct any trading in the ADRs during the last 30
minutes of the trading session on each Trading Day during any Valuation
Period. The Investor shall make available to the Company
all trading activity in the ADRs (trade by trade) in a timely and transparent
fashion and, if requested by the Company, at the end of each day during a
Valuation Period.
Section
5.3 SALES
RESTRICTIONS. The Investor agrees that, during the period
beginning on the Effective Date and ending ninety (90) days after the
earlier of (a) the expiration of the Commitment Period, or (b) the termination
of this Agreement (the “Restricted Period”), none of the Investor, its
Affiliates (within the meaning of the Exchange
14
Act)
or
any entity managed by the Investor or any of its Affiliates shall sell any
Ordinary Shares (including Ordinary Shares represented by ADRs or ADR
Equivalents) it does not “own” or have the unconditional right to receive
(within the meaning of Rule 200 of Regulation SHO promulgated by the SEC under
the Exchange Act), including any such Ordinary Shares in any account of the
Investor or any account directly or indirectly managed by the Investor, any
Affiliate of the Investor or any entity managed by the
Investor. Without limiting the generality of the foregoing, prior to
and during the Restricted Period, none of the Investor, its Affiliates or any
entity managed by the Investor or any of its Affiliates shall enter into any
short position or cause or engage in, in any manner whatsoever, any direct
or
indirect short-selling or hedging of the Ordinary Shares (including Ordinary
Shares represented by ADRs or ADR Equivalents) of the Company, including in
any
account directly or indirectly managed by the Investor or any of its Affiliates
or any entity managed by the Investor; provided that the Investor shall be
entitled to sell such number of Put Shares as it would be reasonable to estimate
that Investor will be obligated to purchase under any outstanding Put Notice
but
has not yet taken possession of, so long as the Investor covers any such sale
with the Put Shares purchased pursuant to such Put Notice. The Investor
represents and warrants on behalf of itself, its Affiliates and all entities
managed by the Investor or any of its Affiliates, that at no time prior to
the
date hereof has any of them entered into any short position or caused or engaged
in, in any manner whatsoever, any direct or indirect short-selling or hedging
of
Ordinary Shares (including Ordinary Shares represented by ADRs or ADR
Equivalents).
ARTICLE
VI
COVENANTS
OF THE COMPANY
Section
6.1 EFFECTIVENESS
OF REGISTRATION STATEMENT. The Company shall use commercially reasonable efforts
to cause the Registration Statement to continue to be effective and will not
take any action or file any document (whether or not permitted by said Act
or
the rules thereunder) to terminate or suspend such effectiveness.
Section
6.2 LISTING
OF SHARES. The Company shall use commercially reasonable efforts to maintain
the
listing of the Shares on a Principal Market and, if applicable, will use
commercially reasonable efforts to cause the Put Shares to be listed on a
Principal Market. The Company further shall, if the Company applies to have
its
ADRs traded on any other Principal Market, include in such application the
Put
Shares.
Section
6.3 EXCHANGE
ACT REGISTRATION. The Company shall use commercially reasonable efforts to
cause
its ADRs to continue to be registered under Section 12(g) or 12(b) of the
Exchange Act, and will not take any action or file any document (whether or
not
permitted by said Act or the rules thereunder) to terminate or suspend such
registration or to terminate or suspend its reporting and filing obligations
under said Act.
Section
6.4 NOTICE
OF CERTAIN EVENTS; SUSPENSION OF RIGHT TO
15
MAKE
A
PUT. The Company shall promptly notify Investor upon the occurrence of any
of
the following: (a) receipt of any request for additional information by the
SEC
or any other federal or state governmental authority during the period of
effectiveness of the Registration Statement for amendments or supplements to
the
Registration Statement or related Prospectus; (b) the issuance by the SEC or
any
other federal or state governmental authority of any stop order suspending
the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose; and (c) the Company’s reasonable determination that a
post-effective amendment to the Registration Statement would be appropriate,
and
the Company shall promptly make available to Investor any such supplement or
amendment to the related Prospectus. The Company shall not deliver to Investor
any Put Notice during the continuation of any of the foregoing events until,
in
the case of clauses (a) or (c), the Registration Statement has been
appropriately amended or the Prospectus has been appropriately supplemented,
as
the case may be, including, in either case, by way of incorporation by
reference.
Section
6.5 EXCLUSIVITY. The
Company covenants and agrees that it will not, without the prior written consent
of the Investor (which consent shall not be unreasonably withheld or delayed),
enter into any subsequent equity credit line agreement or substantially similar
equity financing arrangement (however denominated) with any third party until
the expiration of the Commitment Period or the termination of this Agreement,
whichever is earlier.
Section
6.6 DILUTION. The
number of Shares issuable as Put Shares may increase substantially in certain
circumstances, including, but not necessarily limited to, the circumstance
wherein the trading price of the ADRs declines during the period between the
Effective Date and the end of the Commitment Period. The Company’s
executive officers and directors have studied and fully understand the nature
of
the transactions contemplated by this Agreement and recognize that they have
a
potential dilutive effect. The board of directors of the Company has
concluded, in its good faith business judgment, that such issuance is in the
best interests of the Company. The Company specifically acknowledges
that its obligation to issue the Put Shares is binding upon the Company and
enforceable regardless of the dilution such issuance may have on the ownership
interests of other shareholders of the Company.
Section
6.7 UNDERWRITING
FEE. The Company shall pay to the Investor an underwriting fee of
$300,000 in, at the Company’s discretion, cash or ADRs (valued at the Sale Price
for the Trading Day immediately prior to the Effective Date). Any
such ADRs will be issued pursuant to the Registration Statement.
Section
6.8 NON-DISCLOSURE
OF NON-PUBLIC INFORMATION. Neither the Company nor any of its
directors, officers, or agents shall disclose any material non-public
information about the Company to the Investor, unless a public announcement
thereof is made by the Company in the manner contemplated by Regulation FD
under
the Exchange Act.
16
ARTICLE
VII
CONDITIONS
TO DELIVERY OF
PUT
NOTICES AND CONDITIONS TO CLOSING
Section
7.1 CONDITIONS
PRECEDENT TO THE OBLIGATION OF THE COMPANY TO ISSUE AND SELL PUT SHARES. The
obligation hereunder of the Company to issue and sell the Put Shares to Investor
incident to each Closing is subject to the satisfaction, at or before each
such
Closing, of each of the conditions set forth below.
(a) ACCURACY OF INVESTOR’S
REPRESENTATIONS AND WARRANTIES. The representations and warranties of Investor
shall be true and correct in all material respects as of the date of this
Agreement and as of the date of each such Closing as though made at each such
time, except for any conditions which have temporarily caused any
representations or warranties herein to be incorrect and which have been
corrected with no continuing material impairment to the Company or
Investor.
(b) PERFORMANCE BY
INVESTOR. Investor shall have performed, satisfied and complied in all respects
with all covenants, agreements and conditions required by this Agreement to
be
performed, satisfied or complied with by Investor at or prior to such
Closing.
(c) NO INJUNCTION. No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or adopted by any court or governmental
authority of competent jurisdiction that prohibits or directly and materially
adversely affects any of the transactions contemplated by this Agreement, and
no
proceeding shall have been commenced that may have the effect of prohibiting
or
materially adversely affecting any of the transactions contemplated by this
Agreement.
Section 7.2 CONDITIONS PRECEDENT TO
THE RIGHT OF THE COMPANY TO DELIVER A PUT NOTICE AND THE OBLIGATION OF INVESTOR
TO PURCHASE PUT SHARES. The right of the Company to deliver a Put Notice and
the
obligation of Investor hereunder to acquire and pay for the Put Shares incident
to a Closing is subject to the satisfaction, on (a) the date of delivery of
such
Put Notice and (b) the applicable Closing Date (each a “CONDITION SATISFACTION
DATE”), of each of the following conditions:
(a) ACCURACY OF THE COMPANY’S
REPRESENTATIONS AND WARRANTIES. The representations and warranties of the
Company shall be true and correct in all material respects as of each Condition
Satisfaction Date as though made at each such time (except for representations
and warranties specifically made as of a particular date), except for any
conditions which have temporarily caused any representations or warranties
herein to be incorrect and which have been corrected with no continuing
material
17
impairment
to the Company or Investor.
(b) PERFORMANCE BY THE
COMPANY. The Company shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions required by
this
Agreement to be performed, satisfied or complied with by the Company at or
prior
to each Condition Satisfaction Date.
(c) NO INJUNCTION. No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or adopted by any court or governmental
authority of competent jurisdiction that prohibits or directly and materially
adversely affects any of the transactions contemplated by this Agreement, and
no
proceeding shall have been commenced that may have the effect of prohibiting
or
materially adversely affecting any of the transactions contemplated by this
Agreement.
(d) EFFECTIVE REGISTRATION
STATEMENT. The Registration Statement shall remain effective on each Condition
Satisfaction Date and (i) neither the Company nor Investor shall have received
notice that the SEC has issued or intends to issue a stop order with respect
to
such Registration Statement or that the SEC otherwise has suspended or withdrawn
the effectiveness of such Registration Statement, either temporarily or
permanently, or intends or has threatened to do so (unless the SEC’s concerns
have been addressed and Investor is reasonably satisfied that the SEC no longer
is considering or intends to take such action) and (ii) no other suspension
of
the use or withdrawal of the effectiveness of such Registration Statement or
related prospectus shall exist.
(e) NO MATERIAL
ADVERSE CHANGE. Since December 31, 2006, no event has occurred that would
reasonably be expected to result in a Material Adverse Change, except as
disclosed in the SEC Documents on file on, or as otherwise publicly announced
by
the Company prior to, such Condition Satisfaction Date.
(f) NO
SUSPENSION OF TRADING IN OR DELISTING OF ADRs. The trading of the ADRs shall
not
have been suspended by the SEC, the Principal Market or the NASD, the ADRs
shall
have been approved for listing or quotation on and shall not have been delisted
from the Principal Market and a valid and binding depositary agreement with
respect to the ADRs shall be in full force effect.
(g) LEGAL
OPINION. The Company shall have caused to be delivered to Investor, on or before
the first Closing Date, an opinion of the Company’s UK legal counsel in the form
of Exhibit B hereto and an opinion of the Company’s US legal counsel in the form
of Exhibit C hereto, in each case addressed to Investor.
(h) OFFICER’S
CERTIFICATE. On each Condition Satisfaction Date, Investor shall have received
a
certificate in the form and substance of Exhibit D hereto, executed by an
executive officer of the Company.
18
(i) SHAREHOLDER
VOTE. The issuance of Shares with respect to the applicable Closing, if any,
shall not violate the shareholder approval requirements of the Principal Market
and of the UK Companies Law.
ARTICLE
VIII
NOTICES;
INDEMNIFICATION
Section 8.1 NOTICES. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (a) personally served,(b) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (c)
delivered by reputable air courier service with charges prepaid, or (d)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice given in accordance herewith. Any notice or other
communication required or permitted to be given hereunder shall be deemed
effective (i) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address
or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (ii) on the second business day
following the date of mailing by express courier service or on the fifth
business day after deposited in the mail, in each case, fully prepaid, addressed
to such address, or upon actual receipt of such mailing, whichever shall first
occur. The addresses for such communications shall be:
If
to the Company:
|
Amarin
Corporation PLC
|
|
000
Xxxxxx Xxxxxx
|
||
Xxxxxx
|
||
XX0X
0XX
|
||
Xxxxxxx
|
||
Telephone
No.: x00 00 0000 0000
|
||
Telecopier
No.: x00 00 0000 0000
|
||
with
a copy to:
|
Xxxxxxxxxxx
Xxx, Esq.
|
|
Xxxxxx
Xxxxxx & Xxxxxxx LLP
|
||
00
Xxxx Xxxxxx
|
||
Xxx
Xxxx, XX 00000
|
||
XXX
|
||
Telephone
No. (000) 000-0000
|
||
Telecopier
No.: (000) 000-0000
|
19
if
to Investor:
|
Brittany
Capital Management Ltd.
|
|
Xxxxxxxxxx
Xxxxx
|
||
00
Xxxxxxxxxx Xxxxxx
|
||
PO
Box N-10818
|
||
Nassau,
New Providence
|
||
Bahamas
|
||
|
Telephone
No.: (000) 000-0000
|
|
Telecopier
No.: (000) 000-0000
|
||
with
a copy to:
|
Xx.
Xxxxx Xxxxxxx
|
|
Southridge
Capital Management
|
||
00
Xxxxx Xxxxxx
|
||
Xxxxxxxxxx,
XX 00000
|
||
XXX
|
||
Telephone
No.: (000) 000-0000
|
||
Telecopier
No.: (000) 000-0000
|
||
and
to:
|
Xxxxxx
X. Xxxxxxx, Esq.
|
|
Xxxxxxx
& Xxxxxx, LLP
|
||
00
Xxxxxxxx, Xxxxx 000
|
||
Xxx
Xxxx, Xxx Xxxx 00000
|
||
XXX
|
||
Telephone
No.: (000) 000-0000
|
||
Telecopier
No.: (000) 000-0000
|
Either
party hereto may from time to time change its address or facsimile number for
notices under this Section 8.1 by giving at least ten (10) days’ prior written
notice of such changed address or facsimile number to the other party
hereto.
Section
8.2 INDEMNIFICATION.
(a) Indemnification
by the Company. The Company agrees to indemnify and hold harmless
Investor and its officers, directors, employees, and agents, and each Person
or
entity, if any, who controls Investor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any Damages,
joint or several, and any action in respect thereof to which Investor, its
partners, affiliates, officers, directors, employees, and duly authorized
agents, and any such Controlling Person becomes subject to, resulting from,
arising out of or relating to any misrepresentation, breach of warranty or
nonfulfillment of or failure to perform any covenant or agreement on the part
of
Company contained in this Agreement, as such Damages are incurred, except to
the
extent such Damages result from Investor’s failure to perform any covenant or
agreement contained in this Agreement or Investor’s or its officer’s,
director’s, employee’s, agent’s or Controlling Person’s gross negligence,
recklessness, bad faith or willful misconduct.
(b) Indemnification
by the Investor. The Investor agrees to indemnify and hold
harmless the Company and its officers, directors, employees, and agents, and
each Person or entity, if any, who controls Investor within the meaning of
Section 15 of the
20
Securities
Act or Section 20 of the Exchange Act, from and against any Damages, joint
or
several, and any action in respect thereof to which Investor, its partners,
affiliates, officers, directors, employees, and duly authorized agents, and
any
such Controlling Person becomes subject to, resulting from, arising out of
or
relating to any misrepresentation, breach of warranty or nonfulfillment of
or
failure to perform any covenant or agreement on the part of Investor contained
in this Agreement, as such Damages are incurred, except to the extent such
Damages result from the Company’s failure to perform any covenant or agreement
contained in this Agreement or the Company’s or its officer’s, director’s,
employee’s, agent’s or Controlling Person’s gross negligence, recklessness, bad
faith or willful misconduct.
Section
8.3 METHOD
OF ASSERTING INDEMNIFICATION CLAIMS. All claims for indemnification by any
Indemnified Party (as defined below) under Section 8.2 shall be asserted and
resolved as follows:
(a) In
the event any claim or demand in respect of which any person claiming
indemnification under any provision of this Article (an “INDEMNIFIED
PARTY”) might seek indemnity under this Article is asserted against or sought to
be collected from such Indemnified Party by a person other than a party hereto
or an affiliate thereof (a “THIRD PARTY CLAIM”), the Indemnified Party shall
deliver a written notification, enclosing a copy of all papers served, if any,
and specifying the nature of and basis for such Third Party Claim and for the
Indemnified Party’s claim for indemnification that is being asserted under any
provision of this Article against any person (the “INDEMNIFYING PARTY”),
together with the amount or, if not then reasonably ascertainable, the estimated
amount, determined in good faith, of such Third Party Claim (a “CLAIM NOTICE”)
with reasonable promptness to the Indemnifying Party. If the Indemnified Party
fails to provide the Claim Notice with reasonable promptness after the
Indemnified Party receives notice of such Third Party Claim, the Indemnifying
Party shall not be obligated to indemnify the Indemnified Party with respect
to
such Third Party Claim to the extent that the Indemnifying Party’s ability to
defend has been prejudiced by such failure of the Indemnified Party. The
Indemnifying Party shall notify the Indemnified Party as soon as practicable
within the period ending thirty (30) calendar days following receipt by the
Indemnifying Party of either a Claim Notice or an Indemnity Notice (as defined
below) (the “DISPUTE PERIOD”) whether the Indemnifying Party disputes its
liability or the amount of its liability to the Indemnified Party under this
Article and whether the Indemnifying Party desires, at its sole cost and
expense, to defend the Indemnified Party against such Third Party Claim. (i)
If
the Indemnifying Party notifies the Indemnified Party within the Dispute Period
that the Indemnifying Party desires to defend the Indemnified Party with respect
to the Third Party Claim pursuant to this Section 8.3(a), then the Indemnifying
Party shall have the right to defend, with counsel reasonably satisfactory
to
the Indemnified Party, at the sole cost and expense of the Indemnifying Party,
such Third Party Claim by all appropriate proceedings, which proceedings shall
be vigorously and diligently prosecuted by the Indemnifying Party to a final
conclusion or will be settled at the discretion of the Indemnifying Party (but
only with the consent of the Indemnified Party in the case of any settlement
that provides for any relief
21
other
than the payment of monetary damages or that provides for the payment of
monetary damages as to which the Indemnified Party shall not be indemnified
in
full pursuant to this Article). The Indemnifying Party shall have full control
of such defense and proceedings, including any compromise or settlement thereof;
provided, however, that the Indemnified Party may, at the sole cost and expense
of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery
of the notice referred to in the first sentence of this clause (i), file any
motion, answer or other pleadings or take any other action that the Indemnified
Party reasonably believes to be necessary or appropriate to protect its
interests; and provided further, that if requested by the Indemnifying Party,
the Indemnified Party will, at the sole cost and expense of the Indemnifying
Party, provide reasonable cooperation to the Indemnifying Party in contesting
any Third Party Claim that the Indemnifying Party elects to contest. The
Indemnified Party may participate in, but not control, any defense or settlement
of any Third Party Claim controlled by the Indemnifying Party pursuant to this
clause (i), and except as provided in the preceding sentence, the Indemnified
Party shall bear its own costs and expenses with respect to such participation.
Notwithstanding the foregoing, the Indemnified Party may takeover the control
of
the defense or settlement of a Third Party Claim at any time if it irrevocably
waives its right to indemnity under this Article with respect to such Third
Party Claim. (ii) If the Indemnifying Party fails to notify the Indemnified
Party within the Dispute Period that the Indemnifying Party desires to defend
the Third Party Claim pursuant to Section 8.3(a), or if the Indemnifying Party
gives such notice but fails to prosecute vigorously and diligently or settle
the
Third Party Claim, or if the Indemnifying Party fails to give any notice
whatsoever within the Dispute Period, then the Indemnified Party shall have
the
right to defend, at the sole cost and expense of the Indemnifying Party, the
Third Party Claim by all appropriate proceedings, which proceedings shall be
prosecuted by the Indemnified Party in a reasonable manner and in good faith
or
will be settled at the discretion of the Indemnified Party (with the consent
of
the Indemnifying Party, which consent will not be unreasonably withheld). The
Indemnified Party will have full control of such defense and proceedings,
including any compromise or settlement thereof; provided, however, that if
requested by the Indemnified Party, the Indemnifying Party will, at the sole
cost and expense of the Indemnifying Party, provide reasonable cooperation
to
the Indemnified Party and its counsel in contesting any Third Party Claim which
the Indemnified Party is contesting. Notwithstanding the foregoing provisions
of
this clause (ii), if the Indemnifying Party has notified the Indemnified Party
within the Dispute Period that the Indemnifying Party disputes its liability
or
the amount of its liability hereunder to the Indemnified Party with respect
to
such Third Party Claim and if such dispute is resolved in favor of the
Indemnifying Party in the manner provided in clause (iii) below, the
Indemnifying Party will not be required to bear the costs and expenses of the
Indemnified Party’s defense pursuant to this clause (ii) or of the Indemnifying
Party’s participation therein at the Indemnified Party’s request, and the
Indemnified Party shall reimburse the Indemnifying Party in full for all
reasonable costs and expenses incurred by the Indemnifying Party in connection
with such litigation. The Indemnifying Party may participate in, but not
control, any defense or settlement controlled by the Indemnified Party pursuant
to this clause (ii), and the Indemnifying Party shall bear its own costs and
expenses with respect to such participation. (iii) If the Indemnifying Party
notifies the Indemnified Party that it does not
22
dispute
its liability or the amount of its liability to the Indemnified Party with
respect to the Third Party Claim under this Article or fails to notify the
Indemnified Party within the Dispute Period whether the Indemnifying Party
disputes its liability or the amount of its liability to the Indemnified Party
with respect to such Third Party Claim, the amount of Damages specified in
the
Claim Notice shall be presumptively deemed a liability of the Indemnifying
Party
under this Article. If the Indemnifying Party has timely disputed its liability
or the amount of its liability with respect to such claim, the Indemnifying
Party and the Indemnified Party shall proceed in good faith to negotiate a
resolution of such dispute; provided, however, that if the dispute is not
resolved within thirty (30) days after the Claim Notice, the Indemnifying Party
shall be entitled to institute such legal action as it deems
appropriate.
(b) In
the event any Indemnified Party should have a claim under this Article against
the Indemnifying Party that does not involve a Third Party Claim, the
Indemnified Party shall deliver a written notification of a claim for indemnity
under this Article specifying the nature of and basis for such claim, together
with the amount or, if not then reasonably ascertainable, the estimated amount,
determined in good faith, of such claim (an “INDEMNITY NOTICE”) with reasonable
promptness to the Indemnifying Party. The failure by any Indemnified Party
to
give the Indemnity Notice shall not impair such party’s rights hereunder except
to the extent that the Indemnifying Party demonstrates that it has been
irreparably prejudiced thereby. If the Indemnifying Party notifies the
Indemnified Party that it does not dispute the claim or the amount of the claim
described in such Indemnity Notice or fails to notify the Indemnified Party
within the Dispute Period whether the Indemnifying Party disputes the claim
or
the amount of the claim described in such Indemnity Notice, the amount of
Damages specified in the Indemnity Notice will be presumptively deemed a
liability of the Indemnifying Party under this Article. If the Indemnifying
Party has timely disputed its liability or the amount of its liability with
respect to such claim, the Indemnifying Party and the Indemnified Party shall
proceed in good faith to negotiate a resolution of such dispute; provided,
however, that if the dispute is not resolved within thirty (30) days after
the
Claim Notice, the Indemnifying Party shall be entitled to institute such legal
action as it deems appropriate.
(c) The
indemnity agreements contained herein shall be in addition to (i) any cause
of
action or similar rights of the Indemnified Party against the Indemnifying
Party
or others, and (ii) any liabilities the Indemnifying Party may be subject
to.
ARTICLE
IX
MISCELLANEOUS
Section
9.1 GOVERNING
LAW; JURISDICTION. Except with respect to internal corporate matters
governed by the Companies Law of England and Wales, this Agreement shall be
governed by and interpreted in accordance with the laws of the State of New
York
without regard to the principles of conflicts of law. Each of the Company
and
23
Investor
hereby submit to the exclusive jurisdiction of the United States Federal and
state courts located in New York, New York with respect to any dispute arising
under this Agreement, the agreements entered into in connection herewith or
the
transactions contemplated hereby or thereby.
Section
9.2 JURY
TRIAL WAIVER. The Company and the Investor hereby waive a trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other in respect of any matter arising out of or in
connection with the Transaction Documents.
Section
9.3 SPECIFIC
ENFORCEMENT. The Company and the Investor acknowledge and agree that
irreparable damage would occur to the Investor in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the Investor shall be entitled to an injunction or injunctions to prevent
or cure breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof or thereof, this being in addition to any other
remedy to which any of them may be entitled by law or equity.
Section
9.4 ASSIGNMENT. Neither
this Agreement nor any rights of Investor or the Company hereunder may be
assigned by either party to any other person.
Section
9.5 THIRD
PARTY BENEFICIARIES. This Agreement is intended for the benefit of the Company
and Investor, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
Section
9.6 TERMINATION.
This Agreement shall terminate at the end of the Commitment Period (unless
extended by the agreement of the Company and Investor). In addition,
this Agreement may be earlier terminated by the Company unilaterally at any
time
and for any reason or for no reason by providing written notice thereof to
the
Investor. Notwithstanding the foregoing, the provisions of
Articles I, VIII and IX shall survive the termination of this
Agreement.
Section
9.7 ENTIRE
AGREEMENT. This Agreement and the instruments referenced herein contain the
entire understanding of the Company and Investor with respect to the matters
covered herein and therein and, except as specifically set forth herein or
therein, neither the Company nor Investor makes any representation, warranty,
covenant or undertaking with respect to such matters.
Section
9.8 FEES
AND EXPENSES. Except as otherwise provided in this Agreement or any
of the Exhibits thereto, each of the Company and Investor agrees to pay its
own
expenses in connection with the preparation of this Agreement and performance
of
its obligations hereunder. The Investment Amount shall be deemed to include
all
stamp or other similar taxes and duties levied in connection with issuance
of
the Put Shares to which such Investment Amount relates. Any legal
fees and expenses incurred by either the Company or
24
by
the
Investor in connection with the preparation, negotiation, execution and delivery
of any amendments to this Agreement or relating to the enforcement of the rights
of any party, after the occurrence of any breach of the terms of this Agreement
by the other party or any default by the other party in respect of the
transactions contemplated hereunder, shall be paid on demand by the party which
breached the Agreement and/or defaulted, as the case may be. Upon
provision of reasonable documentation in support thereof, the Company shall
pay
the Investor’s reasonable legal expenses of Xxxxxxx & Xxxxxx, LLP in an
amount not to exceed $15,000.00 for the preparation of this
Agreement.
Section
9.9 NO
BROKERS. Each of the Company and Investor represents that it has had no dealings
in connection with this transaction with any finder or broker who will demand
payment of any fee or commission from the other party except ProSeed Capital
whose fee will be paid by the Company. The Company on the one hand,
and Investor, on the other hand, agree to indemnify the other against and hold
the other harmless from any and all liabilities to any persons claiming
brokerage commissions or finder's fees on account of services purported to
have
been rendered on behalf of the indemnifying party in connection with this
Agreement or the transactions contemplated hereby.
Section
9.10 COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which may
be
executed by less than all of the Company and shall be deemed to be an original
instrument which shall be enforceable against the parties actually executing
such counterparts and all of which together shall constitute one and the same
instrument. This Agreement, once executed by a party, may be delivered to the
other parties hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the parties so delivering this Agreement.
Section
9.11 SURVIVAL;
SEVERABILITY. The representations, warranties, covenants and agreements of
the
Company and the Investor as they relate to a particular Closing hereunder shall
survive such Closing for a period of one (1) year thereafter. In the event
that
any provision of this Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement shall continue
in full force and effect without said provision; provided that such severability
shall be ineffective if it materially changes the economic benefit of this
Agreement to any party.
Section
9.12 FURTHER
ASSURANCES. Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated
hereby.
Section
9.13 TITLE
AND SUBTITLES. The titles and subtitles used in this Agreement are used for
the
convenience of reference and are not to be considered in construing or
interpreting this Agreement.
25
Section
9.14 REPORTING
ENTITY FOR THE ADRs. The reporting entity relied upon for the determination
of
the trading price of the ADRs on any given Trading Day for the purposes of
this
Agreement shall be Bloomberg L.P. or any successor thereto.
Section
9.15 PUBLICITY. The
Company and Investor shall consult with each other in issuing any press releases
or otherwise making public statements with respect to the transactions
contemplated hereby, and no party shall issue any such press release or
otherwise make any such public statement without the prior written consent
of
the other party, which consent shall not be unreasonably withheld or delayed,
except that no prior consent shall be required if such disclosure is required
by
law, in which such case the disclosing party shall provide the other party
with
prior notice of such public statement. Investor acknowledges that
this Agreement and all or part of the Transaction Documents may be deemed to
be
“material contracts” as that term is defined by Item 601(b)(10) of Regulation
S-K, and that the Company may therefore be required to file such documents
as
exhibits to reports or registration statements filed under the Securities Act
or
the Exchange Act. Investor further agrees that the status of such documents
and
materials as material contracts shall be determined solely by the Company,
in
consultation with its counsel.
[REMAINDER
OF PAGE LEFT BLANK]
26
IN
WITNESS WHEREOF, the parties hereto have caused this Private Equity Credit
Agreement to be executed by the undersigned, thereunto duly authorized, as
of
the date first set forth above.
AMARIN
CORPORATION PLC
|
By:
________________________________
|
Name:
______________________________
|
Title:
|
BRITTANY
CAPITAL MANAGEMENT LTD.
|
By:
________________________________
|
Name:
______________________________
|
Title: Director
|
27
EXHIBITS
EXHIBIT
A
|
Put
Notice
|
EXHIBIT
B
|
Opinion
of UK Counsel
|
EXHIBIT
C
|
Opinion
of US Counsel
|
EXHIBIT
D
|
Closing
Certificate
|
EXHIBIT
E
|
Depositary
Agent Instructions
|
28