SECURITIES PURCHASE AGREEMENT
Exhibit 4.80
EXECUTION
COPY
This
SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of
May 12, 2008, is made by and among Amarin Corporation plc, a company
incorporated under the laws of England and Wales (the “Company”), and the purchasers
listed on Exhibit
A hereto,
together with their permitted transferees (each, a “Purchaser” and collectively,
the “Purchasers”).
RECITALS:
A. The
Company and the Purchasers are executing and delivering this Agreement in
reliance upon the exemption from the registration requirements of the Securities
Act afforded by Section 4(2) thereof and/or Regulation D
thereunder.
B. The
Purchasers desire to purchase and the Company desires to sell, upon the terms
and conditions stated in this Agreement, Ordinary Shares in an aggregate amount
of up to $4,000,000, with $2,000,000 (the “First Closing Amount”) to be
funded at the first closing (the “First Closing”) and $2,000,000
(the “Second Closing
Amount”) to be funded at the second closing (the “Second Closing”) if the Second
Closing occurs.
C. The
capitalized terms used herein and not otherwise defined have the meanings given
them in Article 7.
AGREEMENT
In
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Purchasers (severally and not jointly)
hereby agree as follows:
ARTICLE
1
PURCHASE
AND SALE OF SECURITIES
SECTION 1.1. Purchase and Sale of
Securities.
(a) At the
First Closing, the Company will allot, issue and sell to each Purchaser, and
each Purchaser will subscribe for from the Company (subject to the requirements
set forth in Section 1.2 below), the number of Ordinary Shares (the “First Closing Securities”), each represented
by one American Depositary Share (each, an “ADS” and collectively, “ADSs”), in each case as set
forth opposite such Purchaser’s name on Exhibit
A hereto. The purchase or subscription price for each unit of
the First Closing Securities shall be US$ 2.30 (the “Per Share First Closing Purchase
Price”).
(b) The
Purchasers rights and obligations with respect to the Second Closing Amount are
set forth in Section 1.1(c). If the Second Closing occurs, then at
the Second Closing, the Company will allot, issue and sell to each Purchaser,
and each Purchaser will subscribe for from the Company the number of Ordinary
Shares (the “Second
Closing Securities” and, together with
the First Closing Securities, the “Securities”), each Ordinary
Share represented by one ADS, that is equal to the quotient obtained by
dividing (A)
the product of
(x) the Second Closing Amount and (y)
such
Purchaser’s
“Pro Rata Percentage” as set forth opposite such Purchaser’s name on Exhibit
A hereto, by (B) the Per Share
Second Closing Purchase Price. The “Per Share Second Closing Purchase
Price” shall mean the lesser of (i) $2.60 and (ii) the product of (x) the
average of the volume weighted average prices as published on the HP screen on
Bloomberg of the ADSs as reported on Nasdaq (symbol “AMRN”) for each of the
thirty (30) trading days immediately prior to the Second Closing Date and (y)
1.13.
(c) If the
Investor Purchasers exercise their option to fund the Investors Second Closing
Amount in accordance with the Investor Purchase Agreement, the Company will
notify the Purchasers and each Purchaser shall be required to fund in full its
Pro Rata Percentage of the Second Closing Amount at the Second Closing on the
Second Closing Date; provided, that if any
Purchaser funds less than such Purchaser’s full pro rata share of the Second
Closing Amount (such unfunded amount shall be referred to herein as a “Shortfall Amount”), then, upon
consummation of the Second Closing, the Purchasers that fund their full pro rata
shares of the Second Closing Amount at the Second Closing shall have the right,
but not the obligation, to fund any Shortfall Amount (in such proportions as
such participating Purchasers shall determine in their sole discretion) and
acquire the Second Closing Securities in respect of the amount
funded. If the Investor Purchasers fail to exercise their option to
fund the Investors Second Closing Amount in accordance with the Investors
Purchase Agreement, then the Purchaser’s rights and obligations hereunder with
respect to the Second Closing Amount will expire and be of no further force or
effect.
(d) The Per
Share Second Closing Purchase Price and/or the number of Second Closing
Securities issuable upon funding of the Second Closing Amount will be subject to
adjustment in the event of (i) stock splits, stock dividends and similar events,
and (ii) issuances of Ordinary Shares (including as ADSs), securities
convertible into Ordinary Shares or ADSs, warrants to subscribe for Ordinary
Shares or ADSs, or options to purchase any of the foregoing, exclusive however
of Exempt Securities (“Additional Stock”), at a price
per share that is less than, or with a conversion or exercise price that is less
than, the Per Share Second Closing Purchase Price. In the case of
clause (i), in the event of changes in the outstanding Ordinary Shares, on or
after the First Closing Date, by reason of a stock split, reverse stock split,
stock dividend, subdivision, split-up, combination of shares, consolidation or
other transaction having similar effect, the number of Second Closing Securities
purchasable under this Agreement in the aggregate and the Per Share Second
Closing Purchase Price shall be correspondingly adjusted to give each Purchaser,
on occurrence of the Second Closing for the same aggregate Second Closing
Purchase Price, the total number of Second Closing Securities as such Purchaser
would have owned had the Second Closing been consummated prior to the event
requiring adjustment and had such Purchaser continued to hold such Securities
until after such event. In the case of clause (ii), the provisions of
Exhibit
B hereto shall apply.
SECTION
1.2. Obligations Conditioned on Filing of
Annual Report. The purchase and sale of the Securities by and
to each Purchaser herein is expressly conditioned on the filing with the SEC of
the Company’s Annual Report on Form 20-F for the fiscal year ended December 31,
2007 (the “Annual
Report”). Prior to the satisfaction of such
condition (the “Annual Report Filing Condition”) in the
manner set forth below, this Agreement shall only constitute (a) an indication
of interest by the Purchasers in the offered Securities and (b) an indication of
interest by the Company in the allotment and issue of the offered
Securities. The process for execution and effectiveness of this
Agreement as a binding obligation of each Purchaser shall be as
follows:
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(1) on
the date of this Agreement, the Purchaser shall deliver executed signature pages
hereto to a mutually-agreed third party to be held pending satisfaction of the
Annual Report Filing Condition; and
(2) (A)
at 12:00 noon Eastern Daylight Time on the Business Day following the date on
which the Company files the Annual Report with the SEC, the Annual Report Filing
Condition shall be satisfied, unless prior to that time (x) the Company receives
notice in writing from the Purchaser that such Purchaser is withdrawing from
this Agreement, such notice to
be faxed to: 011-3531-6699-028, Attention: Xxx Xxxxx, or e-mailed to:
xxx.xxxxx@xxxxxxxxxx.xxx or (y) the Purchaser receives notice in writing
from the Company that the Company is withdrawing from this Agreement; and (B)
simultaneously with the satisfaction of the Annual Report Filing Condition as
provided in the preceding Section 1.2(2)(A), the signature pages referred to in
Section 1.2(1) shall be released to the parties and this Agreement shall be
effective for all purposes in accordance with its terms.
SECTION
1.3. Payment. At or
prior to the First Closing, each Purchaser will pay the aggregate First Closing
Purchase Price for the First Closing Securities as set forth opposite such
Purchaser’s name on Exhibit
A hereto (the “First
Closing Purchase Price”) by wire transfer of immediately available funds
to the Company in accordance with wire instructions provided by the Company to
the Purchasers prior to the First Closing. Upon such wire transfer
the Company will instruct its depositary to deliver to each Purchaser, on an
expedited basis, a statement of account in the name of such Purchaser reflecting
the number of Securities set forth on Exhibit
A. In the event of the Second Closing, in accordance with and
subject to Section 1.1(b) hereof, substantially identical payment and delivery
procedures will apply with respect to the aggregate price payable hereunder by
each Purchaser for the Second Closing Securities (the “Second Closing Purchase
Price”). The First Closing Purchase Price and the Second
Closing Purchase Price include costs of issuance, such as any stamp duty or
stamp duty reserve tax with respect thereto or any other cost incurred by the
Company in connection with the issuance of the Securities.
SECTION
1.4. Closing Date. The
First Closing will take place on the Business Day on which the Annual Report
Filing Condition is satisfied or on such later date within not more than five
(5) days of the Business Day on which the Annual Report Filing Condition is
satisfied as shall be agreed upon by the Company and the Purchasers (the “First Closing
Date”). The First Closing will be held at the offices of
Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. In the event of the Second Closing, the
Second Closing will take place on the same day as the Investors Second Closing
(the “Second Closing
Date”). The Second Closing, if applicable, will be held at the
offices of Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 or at such other time and place as shall be agreed upon
by the Company and a Majority of the Purchasers.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Except as
specifically contemplated by this Agreement or as set forth in the Annual
Report, the Company hereby represents and warrants to each of the Purchasers as
follows:
SECTION
2.1. Organization and
Qualification. All of the direct and indirect Subsidiaries of
the Company are as disclosed in the Annual Report. The Company owns,
directly or
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indirectly,
all of the capital stock or other equity interests of each Subsidiary free and
clear of any Liens, and all the issued and outstanding shares of capital stock
of each Subsidiary are validly issued and are fully paid, non-assessable and
free of preemptive and similar rights to subscribe for or purchase
securities. The Company is duly incorporated and validly existing
under the laws of England and Wales, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or
default of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter
documents. The Company is duly qualified to conduct business as a
foreign corporation in each United States jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not reasonably be expected to have (i) a material adverse
effect on the legality, validity or enforceability of this Agreement and the
transactions contemplated hereby, (ii) a material adverse effect on the results
of operations, assets, business, or financial condition of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect on the
Company’s ability to perform in any material respect on a timely basis its
obligations under this Agreement and the transactions contemplated hereby (any
of (i), (ii) or (iii), a “Material Adverse Effect”), and
no Proceeding has been instituted in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and authority or
qualification. Each Subsidiary is duly incorporated or otherwise
organized and validly existing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. Each Subsidiary is duly qualified to conduct
business as a foreign corporation or other entity in each United States
jurisdiction in which the nature of the business conducted or property owned by
it makes such qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not reasonably be
expected to have a Material Adverse Effect.
SECTION
2.2. Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate this Agreement and the transactions
contemplated hereby and otherwise to carry out its obligations
hereunder. 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 action on the part of the Company and no
further action is required by the Company, its Board of Directors or its
shareholders in connection therewith other than in connection with the Required
Approvals. This Agreement has been (or upon delivery will have been)
duly executed by the Company and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) rights
to indemnity and contribution may be limited by applicable law or public
policy.
SECTION
2.3. Issuance of
Securities. The Securities (in each case in connection with
both the First Closing and the Second Closing) are within the authorized share
capital of the Company and, upon issuance in accordance with the terms of this
Agreement, will be validly issued and fully paid and, except for antidilution
adjustments pursuant to existing agreements, will not be subject to preemptive
rights or other similar rights of shareholders of the Company.
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SECTION
2.4. No Conflicts; Government Consents and
Permits.
(a) The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby (including
the issuance of the Securities) will not (i) conflict with or result in a
violation of any provision of the Company’s Memorandum and Articles of
Association, (ii) violate or conflict with, result in a material breach of any
provision of, constitute a default (or an event that with notice or lapse of
time or both would become a default) under, result in the creation of any Lien
upon any of the properties or assets of the Company or any Subsidiary, or give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, indenture or
instrument to which the Company or any of its Subsidiaries is a party, or (iii)
subject to receipt of Required Approvals, result in a violation of any
applicable law, rule, regulation, order, judgment or decree (including United
States federal and state securities laws and regulations and regulations of any
self-regulatory organizations to which the Company or its securities are
subject) applicable to the Company or any of its Subsidiaries, except in the
case of clauses (ii) and (iii) only, for such conflicts, breaches, defaults, and
violations as would not reasonably be expected to have a Material Adverse
Effect.
(b) Assuming
the accuracy of each of the Purchasers’ representations and warranties in
Article 3 hereof, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any
Governmental Authority or other Person in order for it to execute, deliver or
perform any of its obligations under this Agreement in accordance with the terms
hereof, or to issue and sell the Securities in accordance with the terms hereof,
other than such as have been made or obtained, and except for (i) the
registration of the Securities under the Securities Act pursuant to Article 6
hereof, (ii) such filings required to be made under English law or U.S. federal
or state or foreign securities laws, and (iii) such required filings or
notifications regarding the issuance or listing of additional shares with Nasdaq
(collectively, the “Required
Approvals”).
SECTION
2.5. No Registration
Rights. The granting and performance of the registration
rights under this Agreement will not violate or conflict with, or result in a
breach of any provision of, or constitute a default under, any agreement,
indenture or instrument to which the Company or any Subsidiary is a
party.
ARTICLE
3
PURCHASERS’
REPRESENTATIONS AND WARRANTIES
Each
Purchaser represents and warrants to the Company, severally and not jointly,
with respect to itself and its purchase hereunder, that:
SECTION
3.1. Investment
Purpose. The Purchaser is purchasing the Securities for its
own account for investment and not with a present view toward the public sale or
distribution thereof and has no intention of selling or distributing any of such
Securities or any arrangement or understanding with any other Persons regarding
the sale or distribution of such Securities except in accordance with the
provisions of Article 6 or otherwise as would not result in a violation of the
Securities Act. The Purchaser will not, directly or indirectly,
offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to
buy, purchase or otherwise acquire or take a pledge of) any of the Securities
except in accordance with the provisions of Article 6 or otherwise pursuant to
and in accordance with the Securities Act.
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SECTION
3.2. Purchaser
Status. At the time the Purchaser was offered the Securities,
it was, at the date hereof it is, either: (i) a “qualified
institutional buyer” as defined in Rule 144A(a) under the Securities Act, (ii)
an institutional “accredited investor” as defined in Rule 501(a)(1), (2) or (3)
under the Securities Act or (iii) a person who is not a “U.S. person” (as
defined in Rule 902(k) under the Securities Act).
SECTION
3.3. Reliance on
Exemptions. The Purchaser understands that the Securities are
being offered and sold to it in reliance upon specific exemptions from or
non-application of the registration requirements of United States federal and
state securities laws and that the Company is relying upon the truth and
accuracy of, and the Purchaser’s compliance with, the representations,
warranties, agreements, acknowledgments and understandings of the Purchaser set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Purchaser to acquire the Securities.
SECTION
3.4. Information. The
Purchaser acknowledges that it has been afforded (i) the opportunity to ask such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Securities and the merits and risks of investing in the
Securities; and (ii) access to such information about the Company and its
financial condition, results of operations, businesses, properties, management
and prospects as it believes to be sufficient to enable it to evaluate its
investment.
SECTION
3.5. Acknowledgement of
Risk.
(a) The
Purchaser acknowledges and understands that its investment in the Securities
involves a significant degree of risk, including, without limitation, (i) the
Company has a history of operating losses and requires substantial funds in
addition to the proceeds from the sale of the Securities; (ii) an investment in
the Company is speculative, and only purchasers who can afford the loss of their
entire investment should consider investing in the Company and the Securities;
(iii) the Purchaser may not be able to liquidate its investment; (iv)
transferability of the Securities is limited; (v) in the event of a disposition
of the Securities, the Purchaser could sustain the loss of its entire
investment; and (vi) the Company has not paid any dividends on its Ordinary
Shares since inception and does not anticipate the payment of dividends in the
foreseeable future.
(b) The
Purchaser is able to bear the economic risk of holding the Securities for an
indefinite period, and has knowledge and experience in financial and business
matters such that it is capable of evaluating the risks of the investment in the
Securities.
(c) The
Purchaser has with respect to all legal matters relating to this Agreement and
the offer and sale of the Securities, relied solely upon the advice of such
Purchaser’s own counsel and has not relied upon or consulted any counsel to the
Company.
(d) The
Purchasers acknowledge that the only representations or warranties the Company
is making in connection with the transaction contemplated hereby are those set
forth in Article 2, as modified by the Annual Report.
SECTION
3.6. Governmental
Review. The Purchaser understands that no United States
federal or state or foreign Governmental Authority has passed upon or made any
recommendation or endorsement of the Securities or an investment
therein.
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SECTION
3.7. Transfer or Resale;
Legends.
(a) The
Purchaser understands that:
(i) the
Securities have not been and will not be registered under the Securities Act
(other than as contemplated in Article 6) or any applicable state securities
laws and, consequently, the Purchaser may have to bear the risk of owning the
Securities for an indefinite period of time because the Securities may not be
transferred unless (A) the resale of the Securities is registered pursuant to an
effective registration statement under the Securities Act, as contemplated in
Article 6; or (B) the Securities to be sold or transferred are sold or
transferred pursuant to an exemption from such registration and, if requested by
the Company, or required by the depositary, the Purchaser has delivered to the
Company an opinion of counsel to the Purchaser (in form, substance and scope
reasonably acceptable to the Company) to such effect; and
(ii) except as
set forth in Article 6 and Article 4, neither the Company nor any other Person
is under any obligation to register the resale of the Securities under the
Securities Act or any state or foreign securities laws or to comply with the
terms and conditions of any exemption thereunder;
(iii) the
Securities will be delivered to the Purchaser in the form of uncertificated
restricted ADSs in the depositary’s direct registration system and will be held
as restricted securities until they are resold pursuant to an effective
registration statement under the Securities Act (or an available exemption
therefrom), or otherwise cease to be restricted securities under the Securities
Act; and
(iv) the
restricted ADSs will be subject to the transfer restrictions contained in the
legend set forth below:
THE
RESTRICTED AMERICAN DEPOSITARY SHARES (“RESTRICTED ADSs”)
CREDITED TO YOUR ACCOUNT AND THE UNDERLYING RESTRICTED SHARES (“RESTRICTED SHARES”)
OF THE COMPANY ARE SUBJECT TO THE TERMS OF THE SUPPLEMENTAL LETTER AGREEMENT,
DATED AS OF MAY 16, 2008 (THE “SUPPLEMENTAL LETTER
AGREEMENT”), AND THE DEPOSIT AGREEMENT, DATED AS OF MARCH 29, 1993, AS
AMENDED AND SUPPLEMENTED (AS SO AMENDED AND SUPPLEMENTED, 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 SUPPLEMENTAL LETTER AGREEMENT, OR IF NOT DEFINED THEREIN,
IN THE DEPOSIT AGREEMENT.
HOLDERS
AND BENEFICIAL OWNERS OF THE RESTRICTED ADSs BY ACCEPTING AND HOLDING THE
RESTRICTED ADSs, AND ANY INTEREST THEREIN, SHALL BE BOUND BY THE TERMS OF THE
DEPOSIT AGREEMENT AND THE SUPPLEMENTAL LETTER AGREEMENT. AT THE TIME
OF ISSUANCE, THE RESTRICTED ADSs HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS
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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. UNLESS A REGISTRATION STATEMENT IS EFFECTIVE WITH
RESPECT TO THESE SECURITIES, AS A CONDITION TO PERMITTING ANY TRANSFER OF
THESE SECURITIES, EACH OF THE DEPOSITARY AND THE COMPANY MAY REQUIRE THAT
IT BE FURNISHED WITH 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.
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PRIOR TO
THE TRANSFER OF THE RESTRICTED ADSs, A HOLDER OF RESTRICTED ADSs WILL BE
REQUIRED TO PROVIDE TO THE DEPOSITARY AND TO THE COMPANY A CERTIFICATION IN THE
FORM ATTACHED TO THE SUPPLEMENTAL LETTER AGREEMENT. PRIOR TO THE WITHDRAWAL OF
THE RESTRICTED SHARES, A HOLDER OF RESTRICTED ADSs WILL BE REQUIRED TO PROVIDE
TO THE DEPOSITARY AND TO THE COMPANY A WITHDRAWAL CERTIFICATION IN THE FORM
ATTACHED TO THIS LETTER. THE TRANSFER AND OTHER RESTRICTIONS SET
FORTH HEREIN AND IN THE SUPPLEMENTAL LETTER AGREEMENT SHALL REMAIN APPLICABLE
WITH RESPECT TO THE RESTRICTED ADSs AND THE RESTRICTED SHARES UNTIL SUCH TIME AS
THE PROCEDURES SET FORTH IN THE SUPPLEMENTAL 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
SUPPLEMENTAL LETTER AGREEMENT MAY BE OBTAINED FROM THE DEPOSITARY OR THE COMPANY
UPON REQUEST.
(b) A
Purchaser may request, and the Company agrees to authorize, that its Securities
be withdrawn from the depositary’s direct registration system at any time and
reissued in certificated form to the Purchaser or any transferee from the
Purchaser pursuant to a transfer complying with this Section 3.7, provided that all such
certificates shall bear the legend provided in Section 3.7(a)(iv) unless (i) the
sale of the Securities was made pursuant to an effective Registration Statement,
or (ii) such Securities in the hands of the transferee are eligible
for sale under Rule 144 under the Securities Act without restriction as to
current public information, volume or the manner of sale.
Notwithstanding
the provisions of subsections (a) and (b) above, no such registration statement
or opinion of counsel shall be necessary for a transfer by a Purchaser (i) that
is a partnership to an affiliate, a partner or limited partner of such
partnership or a retired partner of such partnership who
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retires
after the date hereof, or to the estate of any such partner, limited partner or
retired partner or the transfer by gift, will or intestate succession of any
partner to his or her spouse or to the siblings, lineal descendants or ancestors
of such partner or his or her spouse; (ii) that is a corporation, to its
stockholders in accordance with their interest in the corporation; (iii) that is
a limited liability company, to its members or former members in accordance with
their interest in the limited liability company; or (iv) to the Purchaser’s
family member or trust for the benefit of the individual Purchaser, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if he or she were an original Purchaser hereunder.
SECTION
3.8. Authorization;
Enforcement. The Purchaser has the requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The Purchaser has taken all necessary action to
authorize the execution, delivery and performance of this
Agreement. Upon the execution and delivery of this Agreement, this
Agreement shall constitute a valid and binding obligation of the Purchaser
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ and contracting parties’ rights generally and
except as enforceability may be subject to general principles of equity and
except as rights to indemnity and contribution may be limited by applicable
securities laws or public policy underlying such laws.
SECTION
3.9. Residency. The
Purchaser is organized under the laws and the jurisdiction set forth immediately
below such Purchaser’s name on the signature pages hereto.
ARTICLE
4
COVENANTS
SECTION
4.1. Sales by the
Purchasers. Each Purchaser agrees that it will comply with the
prospectus delivery requirements of the Securities Act as applicable to it in
connection with the sales of Registrable Securities pursuant to a Registration
Statement or otherwise comply with the requirements for an exemption from
registration under the Securities Act and the rules and regulations promulgated
thereunder. No Purchaser will make any sale, transfer, pledge or
other disposition of the Securities in violation of U.S. federal or state or
foreign securities laws or the terms of this Agreement. Without
limiting the foregoing, the Purchasers acknowledge that, as a result of their
representation on the Company’s Board of Directors or otherwise, they may from
time to time come into possession of confidential information regarding the
Company that may constitute “material non-public information” under the U.S.
securities laws and agree not to trade in any securities of the Company while in
possession of such information in a manner that would violate the U.S.
securities laws or be inconsistent with the Company’s share dealing
code.
SECTION
4.2. Reservation of Ordinary
Shares. As of the date hereof, the Company has sufficient
authorized and unissued share capital, and the Company shall continue to have
sufficient authorized and unissued share capital for the purpose of enabling the
Company to issue Securities pursuant to this Agreement, and, if applicable, in
connection with the Second Closing.
SECTION
4.3. Preemptive
Rights.
(a) Each
Purchaser shall have a right of first refusal to purchase up to such Purchaser’s
pro rata share of any offering by the Company of Ordinary Shares or any other
class or series of its capital stock, or any other securities convertible into
or exchangeable for Ordinary Shares
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or any
other class or series of capital stock (including convertible stock, redeemable
stock and debt with warrants, but excluding any Exempt Securities and any
issuances pursuant to the Company’s equity credit agreement with Brittany
Capital Management Ltd. dated as of June 1, 2007 provided such issuance shall
have been approved by a vote of at least a majority of all the members of the
Board of Directors plus one additional Director (the “Supermajority Directors”)), in
each case on the same terms as the other investors participating in such
offering. Each Purchaser’s pro rata share shall be equal to the
percentage of the Company’s outstanding Ordinary Shares that are owned by such
Purchaser at the time of each such offering.
(b) The
Company shall provide written notice to each Purchaser that the Company is
considering any proposed future financing subject to this Section 4.3, providing
a general outline of the proposed structure and anticipated terms thereof, not
less than 15 days prior to completion thereof (the “Completion
Date”). The Company shall also provide written notice to each
such Purchaser describing in reasonable detail the terms of any such proposed
future financing (the “Detailed
Notice”) within a reasonable period of time (but not less than ten (10)
days prior to the Completion Date). Unless a Purchaser provides the
Company notice in writing within five (5) days of its receipt of the Detailed
Notice that it wishes to participate in such financing, such Purchaser’s right
with respect to such proposed future financing shall be deemed
waived.
(c) The
rights and obligations established pursuant to this Section 4.3 shall terminate
if (i) a Special Rights Termination Event shall have occurred or (ii) the
Purchasers cease to own in the aggregate at least 33% of the number of
Securities purchased by them in the First Closing and Second
Closing.
SECTION
4.4. Additional
Covenants.
(a) The
Company shall not issue any Ordinary Shares or other securities in connection
with the raising of additional financing or capital until all of the Securities
issued in the First Closing have been registered for resale as provided in
Article 6.
(b) The
Company will use at least 85% of the gross proceeds to advance its
cardiovascular disease programs and may use up to 15% of the gross proceeds
received by the Company from the issuance of the Securities for research and
development programs unrelated to its cardiovascular disease programs (including
the payment of cash milestones to third parties); provided, that this
limitation shall terminate if (i) a Special Rights Termination Event shall have
occurred or (ii) the Purchasers cease to own in the aggregate at least 33% of
the number of Securities purchased by them in the First Closing and Second
Closing.
ARTICLE
5
CONDITIONS
TO CLOSING
SECTION
5.1. Conditions to the Company’s
Obligations at the First
Closing. The Company’s obligation to complete the purchase and
sale of the First Closing Securities in respect of each Purchaser in connection
with the First Closing is subject to the fulfillment or waiver as of the First
Closing Date of the following conditions in respect of such
Purchaser:
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(a) Receipt of
Funds. The Company shall have received immediately available
funds, in US dollars, in the full amount of the First Closing Purchase Price as
set forth opposite such Purchaser’s name on Exhibit
A hereto.
(b) Representations and
Warranties. The representations and warranties made by such
Purchaser in Article 3 shall be true and correct in all material respects as of
the date such representation and warranty was made and as of the
First Closing Date.
(c) Covenants. All
covenants, agreements and conditions contained in this Agreement to be performed
by such Purchaser on or prior to the First Closing Date shall have been
performed or complied with in all material respects.
(d) Absence of
Litigation. No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the First Closing, shall have been instituted, threatened or be
pending before any court, arbitrator, official or Governmental
Authority.
(e) No Governmental
Prohibition. The sale of the First Closing Securities by the
Company to such Purchaser shall not be prohibited by any law or governmental
order or regulation.
SECTION
5.2. Conditions to Each Purchaser’s Obligations at the First
Closing. Each Purchaser’s obligation to complete the purchase
and sale of the First Closing Securities is subject to the fulfillment or waiver
as of the First Closing Date of the following conditions:
(a) Representations and
Warranties. The representations and warranties made by the
Company in Article 2, if made without reference to materiality or a Material
Adverse Effect shall be true and correct in all material respects and if made
subject to materiality or with reference to a Material Adverse Effect shall be
true and correct as written, in each case as of the date such representation and
warranty was made and as of the First Closing Date.
(b) Covenants. All
covenants, agreements and conditions contained in this Agreement to be performed
by the Company on or prior to the First Closing Date shall have been performed
or complied with in all material respects.
(c) Legal
Opinions. The Company shall have delivered to the Purchasers
an opinion, dated as of the First Closing Date, from each of (x) XX Xxxxx XXX,
XX counsel to the Company, in form and substance reasonably acceptable to the
Purchasers, and (y) Xxxxxx Xxxxxx & Xxxxxxx llp,
US counsel to the Company, in each case in substantially the form attached
hereto as Exhibit
C.
(d) Depositary Account
Statements. The Company shall have delivered to its ADS
depositary, with a copy to each Purchaser, irrevocable instructions to issue to
such Purchaser, on an expedited basis, one or more account statements in the
name of such Purchaser reflecting the number of First Closing Securities set
forth opposite such Purchaser’s name on Exhibit
A hereto.
(e) Absence of
Litigation. No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the
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First
Closing, shall have been instituted, threatened or be pending before any court,
arbitrator, official or Governmental Authority.
(f) No Governmental
Prohibition. The sale of the First Closing Securities by the
Company to such Purchaser shall not be prohibited by any law or governmental
order or regulation.
(g) Governmental
Approvals. All actions and approvals, consents, or waivers by
or in respect of, or filings with, any Governmental Authority required to be
taken, obtained, or made in connection with, or to permit, the consummation of
the transactions contemplated by this Agreement shall have been taken, obtained,
or made, including, without limitation, all such actions, approvals, consents,
waivers, or filings that may be required by the anti-competition laws of the
European Union.
SECTION
5.3. Conditions to the Company’s
Obligations at the Second
Closing. The Company’s obligation to complete the purchase and
sale of the Second Closing Securities in respect of each Purchaser contemplated
by the Second Closing is subject to the fulfillment or waiver as of the Second
Closing Date of the following conditions in respect of such
Purchaser:
(a) Receipt of
Funds. The Company shall have received immediately available
funds, in US dollars, in the full amount of the Second Closing Purchase Price as
set forth opposite such Purchaser’s name on Exhibit
A hereto.
(b) Representations and
Warranties. The representations and warranties made by such
Purchaser in Article 3 (other than the representations and warranties made in
Sections 3.4 and 3.9), shall be true and correct in all material respects as of
the date such representation and warranty was made and as of the Second Closing
Date.
(c) Covenants. All
covenants, agreements and conditions contained in this Agreement to be performed
by such Purchaser on or prior to the Second Closing Date shall have been
performed or complied with in all material respects.
(d) Absence of
Litigation. No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Second Closing, shall have been instituted, threatened or
be pending before any court, arbitrator, official or Governmental
Authority.
(e) No Governmental
Prohibition. The sale of the Second Closing Securities by the
Company shall not be prohibited by any law or governmental order or
regulation.
(f) Full
Funding. Each of the other Purchasers shall have paid in full
the aggregate Second Closing Purchase Price required to be paid by each such
Purchaser pursuant to Section 1.1(b).
SECTION
5.4. Conditions to Each Purchaser’s Obligations at the Second
Closing. Each Purchaser’s obligation to complete the purchase
and sale of the Second Closing Securities contemplated by the Second Closing is
subject to the fulfillment or waiver as of the Second Closing Date of the
following conditions:
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(a) Covenants. All
covenants, agreements and conditions contained in this Agreement to be performed
by the Company on or prior to the Second Closing Date shall have been performed
or complied with in all material respects.
(b) Legal
Opinions. The Company shall have delivered to the Purchasers
an opinion, dated as of the Second Closing Date, from each of (i) XX Xxxxx XXX,
XX counsel to the Company in substantially the form delivered at the First
Closing but relating only to the Second Closing Securities, and (ii) Xxxxxx
Xxxxxx & Xxxxxxx llp, US counsel to the
Company, in substantially the form attached hereto as Exhibit
C, but relating only to the Second Closing Securities.
(c) Depositary Account
Statements. The Company shall have delivered to its ADS
depositary, with a copy to the Purchaser, irrevocable instructions to issue to
such Purchaser, on an expedited basis, one or more account statements in the
name of such Purchaser reflecting the number of Second Closing Securities to be
purchased by such Purchaser as determined in accordance with Section
1.1(b).
(d) Absence of
Litigation. No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Second Closing, shall have been instituted, threatened or
be pending before any court, arbitrator, official or Governmental
Authority.
(e) No Governmental
Prohibition. The sale of the Second Closing Securities by the
Company to such Purchaser shall not be prohibited by any law or governmental
order or regulation.
(f) Governmental
Approvals. All actions and approvals, consents, or waivers by
or in respect of, or filings with, any Governmental Authority required to be
taken, obtained, or made in connection with, or to permit, the consummation of
the transactions contemplated by this Agreement shall have been taken, obtained,
or made, including, without limitation, all such actions, approvals, consents,
waivers, or filings that may be required by the anti-competition laws of the
European Union.
ARTICLE
6
REGISTRATION
RIGHTS
SECTION
6.1. Registration
Statements.
(a) As soon
as reasonably practicable, but in no event later than sixty (60) days after the
First Closing Date, the Company shall prepare and file a registration statement
(the “First Registration
Statement”) covering the resale on a continuous or delayed basis by the
Holders of all of the Registrable Securities issued in connection with the First
Closing with the SEC pursuant to Rule 415 and shall use its commercially
reasonable efforts to cause the First Registration Statement to become effective
under the Securities Act not later than the later of (i) ninety (90) days after
the initial filing of such First Registration Statement or (ii) one hundred
fifty (150) days after the First Closing Date or, in the event of a “review” by
the SEC, not later than the later of (i) one hundred twenty (120) days after the
initial filing of such First Registration Statement or (ii) one hundred eighty
(180) days after the First Closing Date (the “First Required Effectiveness
Date”).
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(b) If the
Second Closing occurs, then as soon as reasonably practicable, but in no event
later than sixty (60) days after the Second Closing Date, the Company shall
prepare and file a registration statement (the “Second Registration Statement”
and together with the First Registration Statement, the “Registration Statements”)
covering the resale on a continuous or delayed basis by the Holders of all of
the Registrable Securities issued in connection with the Second Closing with the
SEC pursuant to Rule 415 and shall use its commercially reasonable efforts to
cause the Second Registration Statement to become effective under the Securities
Act not later than the later of (i) ninety (90) days after the initial filing of
such Second Registration Statement or (ii) one hundred fifty (150) days after
the Closing Date or, in the event of a “review” by the SEC, not later than the
later of (i) one hundred twenty (120) days after the initial filing of such
Second Registration Statement or (ii) one hundred eighty (180) days after the
Second Closing Date (the “Second Required Effectiveness
Date”).
(c) The
Company’s shareholders (other than the Holders and the Investor Purchasers)
shall not have the right to include any of the Company’s securities in the
Registration Statements.
(d) The
Company agrees that it shall cause each Registration Statement and the related
prospectus and any amendment or supplement thereto, as of the effective date of
the Registration Statement or such amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act, and
(ii) not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein (in the case of the prospectus, in the light of the
circumstances under which they were made) not misleading, and the Company agrees
to furnish to the Holders copies of any supplement or amendment upon the request
of such Holder prior to its being used or promptly following its filing with the
SEC; provided, however, that the Company
shall have no obligation to deliver to the Holders copies of any amendment
consisting exclusively of an Exchange Act report or other Exchange Act filing
otherwise publicly available on the Company’s website.
SECTION
6.2. Registration
Expenses. All Registration Expenses shall be borne by the
Company. All Selling Expenses relating to the sale of securities
registered by or on behalf of Holders shall be borne by such Holders pro rata on
the basis of the number of securities so registered.
SECTION
6.3. Registration
Default. The Company further agrees that, in the event that
(a) the First or Second Registration Statements (i) have not been filed with the
SEC within 60 days after the First or Second Closing Date, respectively, (ii)
have not been declared effective by the SEC by the First or Second Required
Effectiveness Dates, respectively, or (iii) after either of the First or Second
Registration Statements are declared effective by the SEC, either or both are
suspended by the Company or cease to remain continuously effective at all times
during the Registration Period as to all applicable Registrable Securities for
which such Registration Statement is required to be effective, other than, in
each case, within the time period(s) permitted by Section 6.7(b),
or (b) the Company has failed to perform its obligations set forth in
Section 6.4 within the time periods required therein (each such event referred
to in clauses (a)(i), (ii) and (iii) and clause (b), a “Registration Default”), for
all or part of one or more thirty-day periods (each a “Penalty Period”) during which
the Registration Default remains uncured, the Company shall pay to each
Purchaser 1% of such Purchaser’s aggregate purchase price of its Securities for
each Penalty Period (or partial Penalty Period) during which the Registration
Default remains uncured; provided, however, that if the primary
cause of a Registration Default is a Purchaser’s failure to provide the Company
with any information that is required to be provided in the applicable
Registration Statement with respect to
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such
Purchaser as set forth herein, then the commencement of the Penalty Period
described above shall be extended until two Business Days following the date of
receipt by the Company of such required information; and provided, further, that in no event
shall the Company be required hereunder to pay to any Purchaser pursuant to this
Agreement an aggregate amount that exceeds 10% of the aggregate First Closing
Purchase Price and, if applicable, Second Closing Purchase Price paid by such
Purchaser for such Purchaser’s Securities. The Company shall deliver
said cash payment to the Purchaser by the fifth Business Day after the end of
each such Penalty Period. If the Company fails to pay said cash
payment to the Purchasers in full by the fifth Business Day after the end of
such Penalty Period, the Company will pay interest thereon at a rate of 12% per
annum (or such lesser maximum amount that is permitted to be paid by applicable
law) to the Purchasers, accruing daily from the date such liquidated damages are
due until such amounts, plus all such interest thereon, are paid in
full. The cash payments provided by this Section 6.3 shall be in
addition to, and not in lieu of, such other damages as each Purchaser may
establish in connection with each Registration Default.
SECTION
6.4. Registration Procedures. At
its expense the Company shall:
(a) (i) prepare
and file with the SEC in accordance with this Article 6, Registration Statements
with respect to the registrations of the Registrable Securities on any forms
which may be utilized by the Company and which shall permit the disposition of
the Registrable Securities in accordance with the intended method or methods
thereof, as specified in writing by the Holders, and, except for such times as
the Company is permitted hereunder to suspend the use of the prospectus forming
part of the Registration Statements as provided in Section 6.7(b), use its
commercially reasonable efforts to keep such Registration Statements
continuously effective with respect to a Holder and to keep such Registration
Statements free of any material misstatements or omissions, until the earlier of
(A) the date all Registrable Securities have been sold pursuant to effective
Registration Statements and (B) the date that all Securities can be sold by all
Holders publicly under Rule 144 under the Securities Act without restriction as
to current public information, volume, manner of sale, or
otherwise. The period of time during which the Company is required
hereunder to keep the Registration Statements effective, as provided in the
immediately preceding sentence, is referred to herein as the “Registration
Period”; and (ii) use its commercially reasonable efforts to prepare and file
with the SEC such amendments and post-effective amendments to the Registration
Statements and file with the SEC any other required document as may be necessary
to keep such Registration Statements continuously effective until the expiration
of the Registration Period; cause the related prospectus to be supplemented by
any required prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) under the Securities Act;
and comply with the provisions of the Securities Act applicable to it with
respect to the disposition of all Registrable Securities covered by such
Registration Statements during the Registration Period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statements as so amended or such prospectus as so
supplemented;
(b) advise
the Holders within five Business Days:
(i) when the
Registration Statements or any amendment thereto have been filed with the SEC
and when the Registration Statements or any post-effective amendments thereto
has become effective;
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(ii) of any
request by the SEC for amendments or supplements to the Registration Statements
or the prospectus included therein or for additional information;
(iii) of the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statements or the initiation of any proceedings for such
purpose;
(iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities included therein for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(v) of the
occurrence of any event that requires the making of any changes in the
Registration Statements or the prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the statements therein (in
the case of the prospectus, in the light of the circumstances under which they
were made) not misleading;
(c) use its
commercially reasonable efforts to prevent the issuance of and obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement as soon as reasonably practicable;
(d) if a
Holder so requests in writing, promptly furnish to each such Holder, without
charge, at least one copy of such Registration Statement(s) and any
post-effective amendment thereto, including financial statements and schedules
and, if explicitly requested, all exhibits in the form filed with the
SEC;
(e) during
the Registration Period, promptly deliver to each such Holder, without charge,
as many copies of the prospectus included in such Registration Statements and
any amendments or supplements thereto as such Holder may reasonably request in
writing; and the Company consents to the use, consistent with the provisions
hereof, of the prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by the prospectus or any amendment or
supplement thereto;
(f) during
the Registration Period, if a Holder so requests in writing, promptly deliver to
each such Holder, without charge one copy of the following documents, other than
those documents available via XXXXX: (i) its annual report to its
shareholders, if any (which annual report shall contain financial statements
audited in accordance with generally accepted accounting principles in the
United States of America by a firm of certified public accountants of recognized
standing), (ii) if not included in substance in its annual report to
shareholders, its annual report on Form 00-X (xx xxxxxxx xxxx), (xxx) its
definitive proxy statement with respect to its annual meeting of shareholders,
(iv) each of its interim reports to its shareholders and, if not included in
substance in its interim reports to shareholders, its interim report on Form 6-K
(or similar form);
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(g) prior to
any public offering of Registrable Securities pursuant to either Registration
Statement, promptly take such actions as may be necessary to register or qualify
or obtain an exemption for the offer and sale under the securities or blue sky
laws of such United States jurisdictions as any such Holders reasonably request
in writing, provided
that the Company shall not for any such purpose be required to qualify generally
to transact business as a foreign corporation in any jurisdiction where it is
not so qualified or to consent to general service of process in any such
jurisdiction, and do any and all other acts or things reasonably necessary or
advisable to enable the offer and sale in such jurisdictions of the Registrable
Securities covered by such Registration Statement;
(h) upon the
occurrence of any event contemplated by Section 6.4(b)(v) above, except for such
times as the Company is permitted hereunder to suspend the use of the prospectus
forming part of the Registration Statements, use its commercially reasonable
efforts to prepare as soon as reasonably practicable a post-effective amendment
to the Registration Statements or a supplement to the related prospectus, or
file any other required document so that, as thereafter delivered to purchasers
of the Registrable Securities included therein, the prospectus will not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(i) otherwise
use its commercially reasonable efforts to comply in all material respects with
all applicable rules and regulations of the SEC which could affect the sale of
the Registrable Securities;
(j) use its
commercially reasonable efforts to cause all Registrable Securities to be listed
on Nasdaq;
(k) use its
commercially reasonable efforts to take all other steps necessary to effect the
registration of the Registrable Securities contemplated hereby and to enable the
Holders to sell Registrable Securities under Rule 144;
(l) provide
to each Purchaser and its representatives, if requested, the opportunity to
conduct a reasonable inquiry of the Company’s financial and other records during
normal business hours and make available its officers, directors and employees
for questions regarding information which such Purchaser may reasonably request
in order to conduct any due diligence obligation on its part; and
(m) permit a
single counsel for the Purchasers to review the Registration Statements and all
amendments and supplements thereto, within two Business Days prior to the filing
thereof with the SEC;
provided that, in the case of
clauses (l) and (m) above, the Company shall not be required (A) to delay the
filing of the Registration Statements or any amendment or supplement thereto as
a result of any ongoing diligence inquiry by or on behalf of a Holder or to
incorporate any comments to the Registration Statements or any amendment or
supplement thereto by or on behalf of a Holder if such inquiry or comments would
require a delay in the filing of such Registration Statements, amendments or
supplements, as the case may be, or (B) to provide, and shall not provide, any
Purchaser or its representatives with material, non-public information unless
such Purchaser agrees to receive such
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information
and enters into a written confidentiality agreement with the Company in a form
reasonably acceptable to the Company.
SECTION
6.5. Limitations on Restraining
Registration. Neither the Company nor any Holder shall have
any right to take any action to restrain, enjoin or otherwise delay any
registration pursuant to Section 6.1 hereof as a result of any controversy that
may arise with respect to the interpretation or implementation of this
Agreement.
SECTION
6.6. Indemnification.
(a) Indemnification by the
Company. To
the extent permitted by law, the Company shall indemnify each Holder, each of
such Holder’s officers and directors, and each Person controlling such Holder
within the meaning of Section 15 of the Securities Act, with respect to which
any registration that has been effected pursuant to this Agreement, against all
claims, losses, damages and liabilities (and all Proceedings in respect
thereof), including any of the foregoing incurred in settlement of any
Proceeding, commenced or threatened (subject to Section 6.6(c) below), arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statements, prospectuses, any
amendments or supplements thereof, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading, and will reimburse each Holder and each
Person controlling such Holder for reasonable legal and other out-of-pocket
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or Proceeding, as such expenses are
incurred; provided that
the Company will not be liable in any such case to the extent that any untrue
statement or omission or allegation thereof is made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder for use in preparation of such Registration Statements,
prospectuses, amendments or supplements; and provided, further, that the
Company will not be liable in any such case where the claim, loss, damage or
liability arises out of or is related to the failure of such Holder to comply
with the covenants and agreements of such Holder contained in this Agreement
respecting sales of Registrable Securities, and except that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statement or alleged untrue statement or omission or alleged
omission made in the preliminary prospectuses but eliminated or remedied in the
amended prospectuses on file with the SEC at the time the Registration
Statements become effective or in the amended prospectuses filed with the SEC
pursuant to Rule 424(b) or in the prospectuses subject to completion under Rule
434 of the Securities Act, which together meet the requirements of Section 10(a)
of the Securities Act (the “Final Prospectuses”), such
indemnity shall not inure to the benefit of any such Holder or any controlling
Person of such Holder, if a copy of the Final Prospectuses furnished by the
Company to the Holder for delivery was required to be but was not furnished to
the Person or entity asserting the loss, liability, claim or damage at or prior
to the time such furnishing is required by the Securities Act and the Final
Prospectuses would have cured the defect giving rise to such loss, liability,
claim or damage.
(b) Indemnification by the
Holder. To
the extent permitted by law, each Holder will severally, and not jointly,
indemnify the Company, each of its directors and officers, and each Person who
controls the Company within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (and all Proceedings in
respect thereof), including any of the foregoing incurred in settlement of any
Proceeding, commenced or threatened (subject to Section 6.6(c) below), arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statements, prospectuses, or any
amendments or
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supplements
thereof, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances in which they were
made, and will reimburse the Company, such directors and officers, and each
Person controlling the Company for reasonable legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or Proceeding, as such expenses are incurred, in
each case to the extent, but only to the extent, that such untrue statement or
omission or allegation thereof is made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Holder for
use in preparation of the Registration Statements, prospectuses, amendments or
supplements; provided
that the indemnity shall not apply to the extent that such claim, loss, damage
or liability results from the fact that a current copy of the prospectuses was
not made available to the person or entity asserting the loss, liability, claim
or damage at or prior to the time such furnishing is required by the Securities
Act and the Final Prospectuses would have cured the defect giving rise to such
loss, claim, damage or liability. Notwithstanding the foregoing, a
Holder’s aggregate liability pursuant to this subsection (b) and subsection (d)
shall be limited to the net amount received by the Holder from the sale of the
Registrable Securities.
(c) Conduct of Indemnification
Proceedings. Each party entitled to
indemnification under this Section 6.6 (for purposes of this Section 6.6, the
“Indemnified Party”)
shall give notice to the party required to provide indemnification (for purposes
of this Section 6.6, the “Indemnifying Party”) promptly
after such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party (at its
expense) to assume the defense of any such claim or any Proceeding resulting
therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or Proceeding, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may participate
in such defense at such Indemnified Party’s expense, and provided further that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Agreement, unless
such failure is materially prejudicial to the Indemnifying Party in defending
such claim or litigation. An Indemnifying Party shall not be liable
for any settlement of an action or claim effected without its written consent
(which consent will not be unreasonably withheld). No Indemnifying
Party, in its defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party and Indemnifying
Party of a release from all liability in respect to such claim or litigation or
which admits liability or fault on the part of the Indemnified
Party.
(d) Contribution. If
the indemnification provided for in this Section 6.6 is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party with respect to
any loss, liability, claim, damage or expense referred to therein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party thereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other in connection with the
statements or omissions which resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
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(e) Survival. The
provisions of this Section 6.6 shall remain in full force and effect, and shall
survive the sale by a Holder of Registrable Securities covered by the
Registration Statements.
SECTION
6.7. Dispositions.
(a) Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event requiring the preparation of a supplement or amendment to a
prospectus relating to Registrable Securities so that, as thereafter delivered
to the Holders, such prospectus shall not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, each Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statements and prospectuses contemplated by Section 6.1 until its
receipt of copies of the supplemented or amended prospectus from the Company
and, if so directed by the Company, each Holder shall deliver to the Company all
copies, other than permanent file copies then in such Holder’s possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice.
(b) Each
Holder shall suspend, upon request of the Company, any disposition of
Registrable Securities pursuant to the Registration Statements and prospectuses
contemplated by Section 6.1 during no more than two periods of no more than 60
calendar days each during any 12-month period to the extent that the Company’s
Board of Directors determines in good faith that the sale of Registrable
Securities under the Registration Statements would be reasonably likely to cause
a violation of the Securities Act or Exchange Act.
(c) As a
condition to the inclusion of its Registrable Securities in the Registration
Statements, each Holder shall timely furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may reasonably request in writing, including completing a registration
questionnaire in the form provided by the Company, or as shall be required in
connection with any registration referred to in this Article 6.
(d) Each
Holder hereby covenants with the Company not to make any sale of the Registrable
Securities under the Registration Statements without effectively causing the
prospectus delivery requirements under the Securities Act to be
satisfied.
(e) Each
Holder acknowledges and agrees that the Registrable Securities sold pursuant to
the Registration Statements are not transferable on the books of the depositary
in the form of ADSs except in accordance with the Depositary
Letter. Each Holder further acknowledges and agrees that the only
public market in the Registrable Securities in the U.S. is in the form of ADSs
and that no Registrable Securities may be deposited into the Company’s ADS
facility other than in compliance with the legend described in Section 3.7(a)
hereof.
(f) Each
Holder agrees not to take any action with respect to any distribution deemed to
be made pursuant to such Registration Statements that would constitute a
violation of Regulation M under the Exchange Act or any other applicable rule,
regulation or law.
(g) Following
termination of the Registration Period, the Holders shall discontinue sales of
Ordinary Shares and/or ADSs pursuant to the Registration Statements upon receipt
of notice from the Company of its intention to remove from registration the
Ordinary Shares and/or ADSs covered by such Registration Statements that remain
unsold, and such Holders shall
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notify
the Company of the number of Ordinary Shares and/or ADSs registered that remain
unsold promptly following receipt of such notice from the Company.
SECTION
6.8. Registration
Exemptions. With a view to making available to the Holders the
benefits of certain rules and regulations of the SEC which at any time permit
the sale of the Registrable Securities to the public without registration, so
long as any Holder still owns Registrable Securities, the Company shall use its
commercially reasonable efforts to:
(a) make and
keep public information available, as those terms are understood and defined in
Rule 144, at all times;
(b) file with
the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(c) so long
as a Holder owns any Registrable Securities, furnish to such Holder, upon any
reasonable request, a written statement by the Company as to its compliance with
clauses (a) and (b) of this Section 6.8, a copy of the most recent annual report
of the Company, and such other reports and documents of the Company as such
Holder may reasonably request in availing itself of any rule or regulation of
the SEC allowing a Holder to sell any such securities without
registration.
SECTION
6.9. Assignment. The
rights to cause the Company to register Registrable Securities granted to the
Holders by the Company under Section 6.1 may be assigned by a Holder in
connection with a transfer by such Holder of all or a portion of its Registrable
Securities; provided,
that (i) such transfer must be effected in accordance with applicable securities
laws; (ii) such transferee must agree to comply with the terms and provisions of
this Agreement, and (iii) such transfer must be otherwise in compliance with
this Agreement. Except as specifically permitted by this Section 6.9,
the rights of a Holder with respect to Registrable Securities as set out herein
shall not be transferable to any other Person.
SECTION
6.10. Waiver/Amendment. The
rights of any Holder under any provision of this Article 6 may be waived (either
generally or in a particular instance, either retroactively or prospectively and
either for a specified period of time or indefinitely) or amended by an
instrument in writing signed by such Holder.
SECTION
6.11. Piggy-Back
Registrations. If at any time prior to the end of the
Registration Period (including during periods when the Company is permitted to
suspend the use of the prospectus forming part of the Registration Statements)
there is not an effective Registration Statement covering all of the Registrable
Securities, the Company shall determine to prepare and file with the SEC a
registration statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities,
other than on Form S-4 or Form S-8 (each as promulgated under the Securities
Act) or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit
plans, then the Company shall send to each Holder written notice of such
determination and if, within twenty days after receipt of such notice, any such
Holder shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable Securities such
Holder requests to be registered. Notwithstanding the foregoing, in
the event that, in connection with any underwritten public offering, the
managing underwriter(s) thereof shall impose a limitation on the number of
Ordinary Shares which
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may be
included in the registration statement because, in such underwriter(s)’
judgment, marketing or other factors dictate such limitation is necessary to
facilitate public distribution, then the Company shall be obligated to include
in such registration statement only such limited portion of the Registrable
Securities with respect to which such Holder has requested inclusion hereunder
as the underwriter shall permit; provided, however, that (i) except in
accordance with existing agreements providing for the underwriter cutbacks, the
Company shall not exclude any Registrable Securities unless the Company has
first excluded all outstanding securities which are not Registrable Securities
and (ii) after giving effect to the immediately preceding proviso, any such
exclusion of Registrable Securities shall be made pro rata among the Holders
seeking to include Registrable Securities and the holders of other securities
having the contractual right to inclusion of their securities in such
registration statement by reason of demand registration rights, in proportion to
the number of Registrable Securities or other securities, as applicable, sought
to be included by each such Holder or other holder. If an offering in
connection with which a Holder is entitled to registration under this Section
6.11 is an underwritten offering, then each Holder whose Registrable Securities
are included in such registration statement shall, unless otherwise agreed by
the Company, offer and sell such Registrable Securities using the same
underwriter or underwriters and, subject to the provisions of this Agreement, on
the same terms and conditions as other securities of the Company included in
such underwritten offering and shall enter into an underwriting agreement in a
form and substance reasonably satisfactory to the Company and the underwriter or
underwriters. Upon the effectiveness of the registration statement
for which piggy-back registration has been provided in this Section 6.11, any
payments that after such effectiveness date would otherwise become payable
pursuant to Section 6.3 to a Purchaser whose Securities are included in such
registration statement shall not become payable so long as such piggy-back
registration statement remains effective.
ARTICLE
7
DEFINITIONS
“Additional Stock” has the
meaning set forth in Section 1.1(d).
“ADS” and “ADSs” have the respective
meanings set forth in Section 1.1(a).
“Affiliate” means, with respect
to any Person, any other Person controlling, controlled by or under direct or
indirect common control with such Person (for the purposes of this definition
“control,” when used
with respect to any specified Person, shall mean the power to direct the
management and policies of such Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” shall have
meanings correlative to the foregoing).
“Annual Report” has the meaning
set forth in Section 1.2.
“Annual Report Filing
Condition” has the meaning set forth in Section 1.2.
“Business Day” means a day
Monday through Friday on which banks are generally open for business in New York
City and London, England.
“Company” means Amarin
Corporation plc, a company incorporated under the laws of England and
Wales.
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“Completion Date” has the
meaning set forth in Section 4.3(b).
“Depositary Letter” means the
letter agreement between the Company and Citibank, N.A. dated as of the First
Closing Date.
“Detailed Notice” has the
meaning set forth in Section 4.3(b).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Exempt Securities” means (i)
options granted, and shares issued upon exercise thereof, to employees,
directors or consultants under the Company’s stock option plans in amounts
approved by the Company’s Board of Directors upon the recommendation of its
remuneration committee (as appropriately adjusted for stock splits, stock
dividends, and the like), (ii) securities offered under a registration statement
on Form F-4 (or any applicable successor form), (iii) the conversion or exercise
of convertible debt or exercisable securities outstanding on the date hereof,
(iv) the issuance of Ordinary Shares to pay milestones which may become payable
in relation to the acquisitions by the Company of Laxdale Limited and Ester
Neurosciences Ltd., (v) the issuance of shares in connection with bank financing
or similar transactions that are primarily of a non-equity financing nature and
approved by the Company’s Board of Directors, and (vi) securities issued
pursuant to acquisitions or strategic transactions approved by the Supermajority
Directors.
“Final Prospectus” has the
meaning set forth in Section 6.6(a).
“First Closing” has the meaning
set forth in the Recitals.
“First Closing Amount” has the
meaning set forth in the Recitals.
“First Closing Date” has the
meaning set forth in Section 1.4.
“First Closing Purchase Price”
has the meaning set forth in Section 1.3.
“First Closing Securities” has
the meaning set forth in Section 1.1(a).
“Governmental Authority” means
any governmental body or regulatory authority of the United States or any other
country or any political subdivision of any thereof.
“Holders” means any Person
holding Registrable Securities or any Person to whom the rights under Article 6
have been transferred in accordance with Section 6.9 hereof.
“Indemnified Party” has the
meaning set forth in Section 6.6(c).
“Indemnifying Party” has the
meaning set forth in Section 6.6(c).
“Investors Purchase Agreement”
means the Securities Purchase Agreement, dated May 12, 2008, by and among
the Company, Caduceus Private Investments III, LP, Sofinnova Venture Partners
VII, L.P., Panorama Capital, L.P., Thomas, XxXxxxxx & Partners II, L.P., TMP
Nominee II, LLC, TMP Associates II, L.P., Longitude Venture Partners, L.P. and
Fountain Healthcare Partners LP.
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“Investor Purchasers” means the
Purchasers as defined in the Investors Purchase Agreement.
“Investors First Closing” means
the First Closing as defined in the Investors Purchase Agreement.
“Investors Second Closing”
means the Second Closing as defined in the Investors Purchase
Agreement.
“Investors Second Closing
Amount” means the Second Closing Amount as defined in the Investors
Purchase Agreement.
“Liens” means a lien, charge,
security interest, encumbrance, right of first refusal, preemptive right, claim,
defect or imperfection of title or similar restriction.
“Majority of the Purchasers”
means (i) prior to the First Closing, two-thirds (2/3) of the Purchasers (based
on the aggregate “Pro Rata Percentages” of the Purchasers as set forth on Exhibit
A hereto) hereunder, and (ii) from and after the First Closing, the
Purchasers holding two-thirds (2/3) of the Securities sold
hereunder.
“Material Adverse Effect” has
the meaning set forth in Section 2.1.
“Milestone” means that the
Company has both (a) met with the U.S. Food & Drug Administration and
received written approval for its pivotal clinical trials with primary endpoints
and patient numbers and (b) made CMC progress.
“Nasdaq” means The Nasdaq
Capital Market.
“Ordinary Shares” means the
ordinary shares, par value ₤0.50 per share, of the Company.
“Per Share First Closing Purchase
Price” has the meaning set forth in Section 1.1(a).
“Per Share Second Closing Purchase
Price” has the meaning set forth in Section 1.1(b).
“Person” means any person,
individual, corporation, limited liability company, partnership, trust or other
nongovernmental entity or any governmental agency, court, authority or other
body (whether foreign, federal, state, local or otherwise).
“Proceeding” means any action,
claim, suit, inquiry, notice of violation, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
“Purchasers” mean the
Purchasers whose names are set forth on the signature pages of this Agreement
and are listed on Exhibit
A hereto, and their permitted transferees.
Unless
the context requires otherwise, the terms “register,” “registered” and “registration” refer to the
registration of securities of the Company effected by preparing and filing
a
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registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
“Registrable Securities” means
the Securities; provided, however, that securities
shall only be treated as Registrable Securities if and only for so long as they
(A) have not been disposed of pursuant to a registration statement declared
effective by the SEC, (B) have not been sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act so that
all transfer restrictions and restrictive legends with respect thereto are
removed upon the consummation of such sale or (C) are held by a Holder or a
permitted transferee pursuant to Section 6.9.
“Registration Expenses” means
all expenses incurred by the Company in complying with Section 6.1 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and expenses of counsel for the Company,
blue sky fees and expenses and the expense of any special audits incident to or
required by any such registration (but excluding the fees of legal counsel for
any Holder).
“Registration Period” has the
meaning set forth in Section 6.4(a).
“Registration Statement” has
the meaning set forth in Section 6.1.
“Required Approvals” has the
meaning set forth in Section 2.4(b).
“Rule 144” means Rule 144
promulgated under the Securities Act.
“SEC” means the United States
Securities and Exchange Commission.
“Second Closing” has the
meaning set forth in the Recitals.
“Second Closing Amount” has the
meaning set forth in the Recitals.
“Second Closing Date” has the
meaning set forth in Section 1.4.
“Second Closing Purchase Price”
has the meaning set forth in Section 1.3.
“Second Closing Securities” has
the meaning set forth in Section 1.1(b).
“Securities” has the meaning
set forth in Section 1.1(b).
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Selling Expenses” means all
selling commissions applicable to the sale of Registrable Securities and all
fees and expenses of legal counsel for any Holder other than as set forth in the
definition of “Registration Expenses.”
“Shortfall Amount” has the
meaning set forth in Section 1.1(c).
“Special Rights Termination
Event” shall mean either (i) the failure of the Investor Purchasers to
timely exercise their option to fund the Investor Second Closing Amount pursuant
to
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Section
1.1(c) of the Investors Purchase Agreement or (ii) the timely exercise of such
option by the Investor Purchasers followed by the failure of the Investors
Second Closing to occur due to the failure of the Investor Purchasers to satisfy
any of the conditions provided in Sections 5.3(a)-(c) of the Investor Purchase
Agreement.
“Subsidiary” of any Person
shall mean any corporation, partnership, limited liability company, joint
venture or other legal entity of which such Person (either alone or through or
together with any other subsidiary) owns, directly or indirectly, more than 50%
of the stock or other equity interests the holders of which are generally
entitled to vote for the election of the board of directors or other governing
body of such corporation or other legal entity.
ARTICLE
8
TERMINATION
SECTION
8.1. Termination. This
Agreement will terminate automatically as to any Purchaser which has not funded
its Second Closing Purchase Price at the Second Closing on the Second Closing
Date and may be terminated:
(a) by the
mutual written consent of the Company following the approval by the Board by a
majority of all the Directors and a Majority of the Purchasers; provided, however, that no
such right to terminate may be exercised prior to the First
Closing;
(b) by either
the Company, following the approval by the Board by a majority of all the
Directors, if the First Closing has not occurred by May 31, 2008 or by a
Majority of the Purchasers if Investors First Closing shall not have occurred
and the First Closing has not been consummated by May 31, 2008; provided, however, that the right to
terminate this Agreement pursuant to this Section 8.1(b) shall not be available
to any party(ies) who is in material breach of this Agreement, or whose failure
to fulfill any of its obligations under this Agreement results in such failure
to close;
(c) by either
the Company or a Majority of the Purchasers, if any applicable law makes
consummation of the transactions contemplated hereby illegal, or if any
judgment, injunction, order, or decree enjoining any party hereto from
consummating the transactions contemplated hereby is entered and that judgment,
injunction, order, or decree becomes final and nonappealable; provided, however, that the party(ies)
seeking to terminate this Agreement pursuant to this subsection
9.1(c) shall have used all reasonable efforts to remove such judgment,
injunction, order or decree;
(d) by the
Company, if the Company following the approval by the Board by a majority of all
the Directors is not in material breach of this Agreement, in the event of a
material breach by any Purchaser of any representation, warranty, or agreement
contained herein; or
(e) by a
Majority of the Purchasers, if a Majority of the Purchasers are not in material
breach of this Agreement, in the event of a material breach by the Company of
any representation, warranty, or agreement contained herein.
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SECTION
8.2. Effect of
Termination. If this Agreement is validly terminated pursuant
to Section 8.1, it shall become null and void immediately and there shall be no
liability or obligation to any Person in respect of the Agreement or of the
transactions contemplated hereby on the part of any party, or a party’s
directors, officers, employees, agents, representatives, advisers, stockholders,
members, partners, or Affiliates, except that the provisions of this Section 8.2
and Article 9 shall remain in full force and effect and shall survive any
termination of this Agreement and except that each party shall remain liable for
any breach of this Agreement prior to its termination.
ARTICLE
9
GOVERNING
LAW; MISCELLANEOUS
SECTION
9.1. Governing Law; Jurisdiction; Waiver
of Jury Trial.
(a) This
Agreement will be governed by and interpreted in accordance with the laws of the
State of New York without regard to the principles of conflict of laws that
would yield a contrary result.
(b) Each
party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively in
the state and federal courts sitting in the City of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of New York, borough of Manhattan for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby, and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, or that such suit, action or
proceeding is improper or is an inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law.
(c) In any
action, suit or proceeding in any jurisdiction brought by any party against any
other party, the parties each knowingly and intentionally, to the greatest
extent permitted by applicable law, hereby waive all rights to trial by
jury.
SECTION
9.2. Counterparts;
Signatures. This Agreement may be executed in two or more
counterparts, all of which are considered one and the same agreement and will
become effective when counterparts have been signed by each party and delivered
to the other parties. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
SECTION
9.3. Headings. The
headings of this Agreement are for convenience of reference only, are not part
of this Agreement and do not affect its interpretation.
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SECTION
9.4. Severability. If
any provision of this Agreement is invalid or unenforceable under any applicable
statute or rule of law, then such provision will be deemed modified in order to
conform with such statute or rule of law. Any provision hereof that
may prove invalid or unenforceable under any law will not affect the validity or
enforceability of any other provision hereof.
SECTION
9.5. Entire Agreement;
Amendments. This Agreement (including all exhibits hereto)
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof. No provision of this Agreement may be amended or waived other
than by an instrument in writing signed by the Company following the approval by
the Board by a majority of all the Directors and a Majority of the Purchasers
or, in the case of Article 6, the Holders of at least two-thirds (2/3) of the
outstanding Registrable Securities, or in the case of a waiver, by the party
against whom enforcement of such waiver is sought. Any amendment
effected in accordance with this Section 9.5 shall be binding upon the Company
and the Purchasers or, in the case of Article 6, the Holders.
SECTION
9.6. Notices. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed facsimile if sent during normal business
hours of the recipient, if not, then on the next Business Day, (c) five days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one Business Day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. The addresses for such
communications are:
|
If
to the Company:
|
||
|
Amarin
Corporation plc
|
||
|
0
Xxxxxx Xxxxxx
|
||
|
Xxxxxx
X0X 0XX
|
||
|
Xxxxxxx
|
||
|
Facsimile: 00-00-0000-0000
|
||
|
Attn: Chief
Financial Officer
|
||
|
cc: General
Counsel
|
||
|
With
a copy (which shall not constitute notice) to:
|
||
|
Xxxxxx
Xxxxxx & Xxxxxxx llp
|
||
|
00
Xxxx Xxxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000-0000
|
||
|
Facsimile: 000-000-0000
|
||
|
Attn: Xxxxxxxx
X. Xxxxxxxx
|
||
If to a
Purchaser: To the address set forth immediately below such
Purchaser’s name on the signature pages hereto. Each party will
provide ten (10) days’ advance written notice to the other parties of any change
in its address.
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SECTION
9.7. Successors and
Assigns. This Agreement is binding upon and inures to the
benefit of the parties and their successors and assigns. The Company
or its successors will not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Purchasers, and no Purchaser
may assign this Agreement or any rights or obligations hereunder (including with
respect to the Second Closing Amount) without the prior written consent of the
Company, except that, as permitted in accordance with Section 3.7 and Section
6.9 hereof and subject to applicable securities laws, the Purchasers shall be
entitled to assign and transfer, without any other person’s or the Company’s
consent and without restriction, all or any portion of the Securities and the
rights relating thereto.
SECTION
9.8. Third Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto, their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person.
SECTION
9.9. Further
Assurances. Each party will do and perform, or cause to be
done and performed, all such further acts and things, and will execute and
deliver all other agreements, certificates, instruments and documents, as may be
necessary in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
SECTION
9.10. No Strict
Construction. The language used in this Agreement is deemed to
be the language chosen by the parties to express their mutual intent, and no
rules of strict construction will be applied against any party.
SECTION
9.11. Equitable
Relief. The Company recognizes that, if it fails to perform or
discharge any of its obligations under this Agreement, any remedy at law may
prove to be inadequate relief to the Purchasers. The Company
therefore agrees that the Purchasers are entitled to seek temporary and
permanent injunctive relief in any such case. Each Purchaser also
recognizes that, if it fails to perform or discharge any of its obligations
under this Agreement, any remedy at law may prove to be inadequate relief to the
Company. Each Purchaser therefore agrees that the Company is entitled
to seek temporary and permanent injunctive relief in any such case.
SECTION
9.12. Survival of Representations and
Warranties. All representations and warranties made by the
Company and the Purchasers herein shall survive the First Closing and the Second
Closing.
SECTION
9.13. Fractional
Shares. No fractional shares shall be issued at the Second
Closing. The Company shall, in lieu of issuing any fractional share,
pay the Purchaser otherwise entitled to such fraction a sum in cash equal to the
product resulting from multiplying the Per Share Second Closing Purchase Price
by such fraction.
SECTION
9.14. Independent Nature of Purchasers’
Obligations and Rights. The obligations of each Purchaser
under this Agreement are several and not joint with the obligations of any other
Purchaser, and no Purchaser shall be responsible in any way for the performance
of the obligations of any other Purchaser under this
Agreement. Nothing contained herein and no action taken by any
Purchaser pursuant thereto shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group, or are deemed affiliates (as such term is defined under the Exchange
Act) with respect to such obligations or the transactions contemplated by
this
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Agreement. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation the rights arising out of this Agreement, and it
shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose.
[Signature
Pages Follow]
-30-
IN
WITNESS WHEREOF, the undersigned Purchasers and the Company have caused this
Agreement to be duly executed as of the date first above written.
|
AMARIN
CORPORATION PLC
|
|
By:
_______________________________
Name:
Title:
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO AMARIN SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
|
Name
of Purchaser:
|
_____________________________________ |
|
Signature of Authorized
Signatory of Purchaser:
|
_____________________________________ |
|
Name
of Authorized Signatory:
|
_____________________________________ |
|
Title
of Authorized Signatory:
|
_____________________________________ |
|
Email
Address of Purchaser:
|
_____________________________________ |
|
Fax
Number of Purchaser:
|
_____________________________________ |
|
Address
for Notice of Purchaser:
|
_____________________________________ |
| _____________________________________ | |
| _____________________________________ |
|
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
|
| _____________________________________ |
| _____________________________________ |
| _____________________________________ |
|
Jurisdiction
of Incorporation:
|
_____________________________________ |
|
Purchaser’s
EIN Number:
|
_____________________________________ |
EXHIBIT
A
SCHEDULE
OF PURCHASERS
|
Purchaser
|
Pro
Rata
Percentage |
First
Closing
Securities |
Aggregate
First
Closing Purchase Price |
|||
|
Sunninghill
Ltd.
|
60.0%
|
521,739
|
$1,200,000
|
|||
|
Xxxxx
Xxxxx
|
37.5%
|
326,087
|
$750,000
|
|||
|
Xxxxxxx
Xxxxx
|
2.5%
|
21,739
|
$50,000
|
|||
|
Total:
|
100%
|
869,565
|
$2,000,000
|
EXHIBIT
B
ISSUANCE
OF ADDITIONAL STOCK FOR CONSIDERATION BELOW THE PER SHARE SECOND CLOSING
PURCHASE PRICE
If the
Company, at any time and from time to time, shall issue, after the date hereof
and prior to the Second Closing, any Additional Stock (as defined in Section
1.1(d)(ii)) without consideration or for a consideration per share (or with a
conversion or exercise price per share) less than the Per Share Second Closing
Purchase Price in effect immediately prior to the issuance of such Additional
Stock, then and in each such event the Per Share Second Closing Purchase Price
in effect immediately prior to each such issuance shall forthwith (except as
otherwise provided in this Exhibit B) be adjusted to a price determined by
multiplying such Per Share Second Closing Purchase Price by a fraction, the
numerator of which shall be the number of Ordinary Shares outstanding
immediately prior to such issuance plus the number of Ordinary Shares that the
aggregate consideration received by the Company for such issuance would purchase
at such Per Share Second Closing Purchase Price; and the denominator of which
shall be the number of Ordinary Shares outstanding immediately prior to such
issuance plus the number of shares of such Additional Stock.
For all
purposes of this Exhibit B, “Ordinary Shares” shall mean Ordinary Shares as such
are represented by ADSs.
(a) No
adjustment of the Per Share Second Closing Purchase Price shall be made in an
amount less than one cent per share, provided that any adjustments that are not
required to be made by reason of this sentence shall be carried forward and
shall be taken into account at the earlier of the Second Closing Date and the
date of any subsequent adjustment made pursuant to this Exhibit B. No
adjustment made pursuant to this Exhibit B shall have the effect of increasing
the Per Share Second Closing Purchase Price above the Per Share Second Closing
Purchase Price in effect immediately prior to such adjustment.
(b) In
the case of the issuance of Ordinary Shares for cash, the consideration shall be
deemed to be the amount of cash paid therefor excluding amounts paid or payable
for accrued interest or accrued dividends.
(c) In
the case of the issuance of Ordinary Shares for a consideration in whole or in
part other than cash, the consideration other than cash shall be deemed to be
the fair value thereof as determined in good faith by a committee of the
independent directors of the Company irrespective of any accounting
treatment.
(d) In
the case of the issuance of Additional Stock consisting of options to purchase
or rights to subscribe for Ordinary Shares, securities by their terms
convertible into or exchangeable for Ordinary Shares or options to purchase or
rights to subscribe for such convertible or exchangeable securities, the
following provisions shall apply for all purposes of this Exhibit
B:
(i) The
aggregate maximum number of Ordinary Shares deliverable upon exercise (assuming
the satisfaction of any conditions to exercisability, including without
limitation, the passage of time, but without taking into account potential
antidilution adjustments) of such options to purchase or rights to subscribe for
Ordinary Shares shall be deemed to have been issued at the time such options or
rights were issued and for a consideration equal to the consideration
(determined in the manner provided in subsections (b) and (c) of this Exhibit
B), if any, received by the Company upon the issuance of such options or rights
plus the minimum
exercise
price provided in such options or rights (without taking into account potential
antidilution adjustments) for the Ordinary Shares covered thereby.
(ii) The
aggregate maximum number of Ordinary Shares deliverable upon conversion of or in
exchange (assuming the satisfaction of any conditions to convertibility or
exchangeability, including, without limitation, the passage of time, but without
taking into account potential antidilution adjustments) for any such convertible
or exchangeable securities or upon the exercise of options to purchase or rights
to subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof shall be deemed to have been issued at the time
such securities were issued or such options or rights were issued and for a
consideration equal to the consideration, if any, received by the Company for
any such securities and related options or rights (excluding any cash received
on account of accrued interest or accrued dividends), plus the minimum
additional consideration, if any, to be received by the Company (without taking
into account potential antidilution adjustments) upon the conversion or exchange
of such securities or the exercise of any related options or rights (the
consideration in each case to be determined in the manner provided in
subsections (b) and (c) of this Exhibit B).
(iii) In
the event of any change in the number of Ordinary Shares deliverable or in the
consideration payable to the Company upon exercise of such options or rights or
upon conversion of or in exchange for such convertible or exchangeable
securities, including, but not limited to, a change resulting from the
antidilution provisions thereof, the Per Share Second Closing Purchase Price, to
the extent in any way affected by or computed using such options, rights or
securities, shall be recomputed to reflect such change, but no further
adjustment shall be made for the actual issuance of Ordinary Shares or any
payment of such consideration upon the exercise of any such options or rights or
the conversion or exchange of such securities.
(iv) Upon
the expiration of any such options or rights, the termination of any such rights
to convert or exchange or the expiration of any options or rights related to
such convertible or exchangeable securities, the Per Share Second Closing
Purchase Price, to the extent in any way affected by or computed using such
options, rights or securities or options or rights related to such securities,
shall be recomputed to reflect the issuance of only the number of Ordinary
Shares (and convertible or exchangeable securities that remain in effect)
actually issued upon the exercise of such options or rights, upon the conversion
or exchange of such securities or upon the exercise of the options or rights
related to such securities.
(v) The
number of Ordinary Shares deemed issued and the consideration deemed paid
therefor pursuant to subsections (d)(i) and (ii) above shall be appropriately
adjusted to reflect any change, termination or expiration of the type described
in either subsection (d)(iii) or (iv).
(e) Upon
each adjustment of the Per Share Second Closing Purchase Price pursuant to the
provisions of this Exhibit B, the number of Ordinary Shares issuable at the
Second Closing shall be adjusted by (A) multiplying the Per Share Second
Closing Purchase Price in effect immediately prior to such adjustment by the
number of Ordinary Shares issuable at the Second Closing immediately prior to
such adjustment and (B) dividing the product so obtained by the adjusted
Per Share Second Closing Purchase Price.
-2-
EXHIBIT
C
Form of
Opinion of Xxxxxx Xxxxxx & Xxxxxxx llp
May
[ ], 2008
To the
Parties Listed on Schedule A hereto
and
Xxxxx and
Company, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000
Xxxxxx
Xxxxxx of America
|
|
Re:
|
Amarin Corporation
plc
|
Ladies
and Gentlemen:
This
opinion is being furnished to you pursuant to Section 5.2(c) of the Securities
Purchase Agreement, dated May 12, 2008 (the “Purchase Agreement”),
between Amarin Corporation plc, a public limited company organized under the
laws of England and Wales (the “Company”), and the
various persons listed on Schedule A thereto (each, a
“Purchaser” and
collectively, the “Purchasers”),
relating to the issuance and sale to the Purchasers by the Company of ordinary
shares of ₤0.05 each in the capital of the Company (“Securities”). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed thereto in the Purchase Agreement.
In
rendering the opinions set forth herein, we have examined originals, photocopies
or conformed copies certified to our satisfaction of all such company or
corporate records, agreements, instruments and documents of the Company and its
subsidiaries, certificates of public officials and other certificates and
opinions, and have made such other investigations, as we have deemed necessary
in connection with the opinions set forth herein. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photocopies or
conformed copies and the authenticity of originals of such
documents. We have relied, to the extent we deem such reliance
proper, on certificates of officers of the Company and its subsidiaries as to
factual matters.
Based
upon the foregoing, it is our opinion that:
1. no
filing with, or authorization, approval, consent, order, registration,
qualification or decree of, any United States federal or New York state court or
governmental authority or agency is required in connection with the execution,
delivery or performance by the Company of the Purchase Agreement or the
offering, issuance or sale of the Securities except (a) such as have already
been obtained and are in full force and effect, (b) any filings under U.S.
federal or state securities or Blue Sky laws in connection with the sale of the
Securities and (c) for such filings, authorizations, approvals,
C-1
consents,
orders, registrations, qualifications or decrees the failure so to obtain would
not, individually or in the aggregate, have a Material Adverse Effect and would
not materially and adversely affect the consummation of the transactions
contemplated by the Purchase Agreement;
2. the
execution, delivery and performance of the Purchase Agreement by the Company,
the issuance and sale of the Securities by the Company and the consummation by
the Company of the transactions contemplated by the Purchase Agreement do not
and will not result in any violation of any United States federal or New York
State statute or any rule or regulation issued pursuant to any United States
federal or New York State court of governmental agency or body (other than U.S.
federal and state securities or Blue Sky laws and regulations relating to
FINRA), except for violations that would not, individually or in the aggregate,
have a Material Adverse Effect; and
3. assuming
(i) the accuracy of the representations and warranties of the Company contained
in the Purchase Agreement, (ii) the accuracy of the representations and
warranties of each Purchaser in the Purchase Agreement and (iii) the Placement
Agent has not engaged in any activity with respect to the Securities that would
constitute a public offering within the meaning of Section 4(2) of the
Securities Act, it is not necessary in connection with the issuance and sale of
the Securities to the Purchasers under the circumstances contemplated by the
Purchase Agreement to register the sale of the Securities to the Purchasers
under the Securities Act of 1933, as amended, it being understood that no
opinion is being expressed as to any subsequent resale of the Securities;
and
4. the
Purchase Agreement constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors’ rights
generally and general principles of equity and except that (a) rights to
indemnification may be limited under applicable law or public policy and (b) the
enforceability of provisions imposing liquidated damages or penalties upon the
occurrence of certain events may be limited in certain
circumstances.
We are
members of the Bar of the State of New York and do not purport to be experts in,
or to express any opinion concerning, the laws of any jurisdictions other than
the laws of the State of New York and the federal laws of the United States of
America.
This
opinion is solely for your benefit as Purchasers of the Securities and as the
Placement Agent and neither this opinion nor any part hereof may be delivered to
or used or relied upon by any person other than you without our prior written
consent.
Very
truly yours,
C-2
SCHEDULE
A
List of
Recipients
|
·
|
Sunninghill
Ltd.
|
|
·
|
Xxxxx
Xxxxx
|
|
·
|
Xxxxxxx
Xxxxx
|
