Exhibit 4.19
EXECUTION COPY
AGREEMENT ("Agreement") dated 27th January 2003 among Amarin Corporation
plc ("Company"), Monksland Holdings BV ("Monksland") and Elan International
Services Limited ("EISL" and, together with Monksland, the "Shareholder").
INTRODUCTION
Monksland and EISL hold ordinary shares, par value Pound Sterling 1 per
share ("Ordinary Shares") and 3% convertible preference shares ("Preference
Shares") of the Company, all or part of which shares are subject to the terms of
the (a) Second Subscription Agreement, dated November 1999, among the Company
(formerly named Ethical Holdings plc), Monksland and Elan Corporation plc ("1999
Subscription Agreement") and (b) Convertible Term Loan Agreement, dated October
21, 1998, between the Company (formerly named Ethical Holdings plc) and
Monksland ("CTLA"). Under the 1999 Subscription Agreement and the CTLA, the
Company is obligated to register with the United States Securities and Exchange
Commission certain Ordinary Shares held by Monksland and EISL.
The Company and EISL entered into an Agreement dated 28 March 2002
pursuant to which EISL agreed not to convert 2,000,000 Preference Shares into
Ordinary Shares until after 1 December 2002. EISL now wishes to convert such
Preference Shares and will present a conversion notice to the Company in the
form set out in schedule 2.
Simultaneously herewith, the Company, EISL and Monksland are entering into
an Amendment No. 1 to Registration Rights Agreement And Waiver (the
"Registration Rights Agreement") relating to the Registration Rights Agreement
between the Company and Monksland dated as of 21 October 1998.
The Company is conducting a private placement ("Private Placement") of
Ordinary Shares pursuant to an Amended Confidential Private Placement Memorandum
dated 10 December 2002, as supplemented by a letter dated January 2003, which
together are attached as Exhibit B hereto. In connection with such Private
Placement, the Company is undertaking to the investors ("Investors") therein to
use its reasonable efforts to file a registration statement ("Registration
Statement") with the Securities and Exchange Commission, within 90 days of
completion of the Private Placement, on Form F-3 or such other form as is
appropriate and use its reasonable efforts to cause such registration statement
to be declared effective.
The Shareholder may also enter into a share purchase agreement in
substantially the form of Exhibit A hereto (the "Share Purchase Agreement") with
certain Investors, pursuant to which such Investors may acquire up to 944,124
Ordinary Shares held by the Shareholder.
At the same time as entering into this Agreement EISL and the Company
inter alia will enter into an agreement restructuring its relationship with EISL
and certain other companies within the Elan group (the "Master Agreement").
1. UNDERTAKING NOT TO SELL SHARES
1.1 Each of Monksland and EISL hereby severally, irrevocably and
unconditionally undertakes, represents and warrants to and confirms and
agrees with the Company that until October 1, 2003, such Shareholder shall
not, except as set forth in clause 1.2 sell, transfer, charge, encumber,
grant any options over or otherwise dispose of, or permit the sale,
transfer, charging, encumbering, granting of any option over or other
disposal of, all or any of the Ordinary Shares or Preference Shares listed
in Schedule 1 hereto (the "Shares", which term shall include other shares
of capital of the Company issued to, acquired by or purchased by the
Shareholder after the date hereof and attributable to or derived from such
Shares, including Ordinary Shares issued upon conversion of the Preference
Shares listed on such Schedule 1) or any rights or interest therein.
1.2 Nothing in this Agreement shall prevent the Shareholder from -
(a) converting the Preference Shares listed on Schedule 1 into
Ordinary Shares;
(b) selling up to 944,124 Ordinary Shares to Investors pursuant to
the Share Purchase Agreement;
(c) including the Ordinary Shares held by the Shareholder in the
Registration Statement; provided that the Shareholder is not
permitted to sell Ordinary Shares so registered under such
Registration Statement until October 1, 2003 or as permitted by
clauses (d), (e) or (f) below; or
(d) subject to applicable securities laws, selling Ordinary Shares
where (i) the purchaser enters into a written agreement with
the Shareholder, whereby such purchaser represents and
confirms its intention to hold such Ordinary Shares for a
period ending not earlier than 30th September 2003 (and for
the avoidance of doubt the Shareholder shall not be in breach
of this Agreement by virtue of such purchaser disposing of
such Ordinary Shares before 30th September 2003) and (ii) the
per share sale price of such Ordinary Shares is not less than
90% of the closing sale price of the Company's American
Depositary Shares on Nasdaq for the five trading days
immediately prior to the date of such sale;
(e) accepting or agreeing to accept any offer to all the holders of the
Company's Ordinary Shares (or all such shareholders other than the
offeror and/or any body corporate controlled by the offeror and/or
any person acting in concert with the offeror as defined in the City
Code on Takeovers and Mergers) to acquire the whole or any part of
the issued ordinary share capital of the Company; or
(f) transferring any Shares to a subsidiary or holding company or any
subsidiary of any holding company as such terms are defined in S.
736 of the Companies Xxx 0000 so long as such subsidiary or holding
company agrees to take such Shares on the same terms as held by the
Shareholder, including the terms of this Agreement.
2. REGISTRATION STATEMENT
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The Company shall notify the Shareholder of the form and content of the
Registration Statement a reasonable time prior to the filing thereof.
3. UNDERTAKING BY THE COMPANY
The Company hereby agrees to waive the requirement in clause 3.2 of the
1999 Subscription Agreement that the Company be given 10 business days
notice before the Preference Conversion Date (as such term is defined in
the 1999 Subscription Agreement).
4. MISCELLANEOUS
4.1 A waiver of any term, provision or condition of this Agreement shall be
effective only if given in writing and signed by the waiving party and
then only in the instance and for the purpose for which it is given. No
failure or delay on the part of the Shareholder or the Company in
exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No
provision of this Agreement may be amended or otherwise modified except by
a writing duly signed by the party against whom such amendment or
modification is sought to be enforced.
4.2 This Agreement, the Master Agreement and the documents exhibited hereto
constitute the entire and only understanding between or amongst the
Shareholder and the Company with respect to the subject matter hereof and
supersedes all prior agreements and other understandings of any nature
whatsoever, whether or not in writing, relating to the subject matter of
this Agreement.
4.3 This Agreement shall be binding upon each party hereto, together with
their successors and permitted assigns, provided that no party shall
assign its rights under this Agreement without the prior written consent
of the other parties hereto.
4.4 This Agreement may be entered into in any number of counterparts, all of
which taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by signing any such counterpart. This
Agreement may be executed by either party by the delivery by such party by
facsimile of a copy of the signature page of this Agreement, duly executed
by such party. Any copy of this Agreement so executed by facsimile shall
be deemed to be an originally executed copy of this Agreement.
4.5 This Agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this Agreement or
its formation) shall be governed by and construed in accordance with
English law. Each of the parties to this Agreement irrevocably agrees that
the courts of England shall have exclusive jurisdiction to hear and decide
any suit, action or proceedings, and/or to settle any disputes, which may
arise out
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of or in connection with this Agreement and, for these purposes, each
party irrevocably submits to the jurisdiction of the courts of England.
4.6 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this
Agreement and no person other than the parties to this Agreement shall
have any rights under it, nor shall it be enforceable under that Act by
any person other than the parties to it.
4.7 Except as provided in or anticipated by this Agreement, each party shall
at all times during the continuance of this Agreement use its respective
best endeavours to keep the contents of this Agreement confidential and
accordingly shall not disclose details of the contents of this Agreement
to any other person other than on a confidential basis, it being
acknowledged that the Company may disclose the existence and terms of this
Agreement to the Investors in connection with the Private Placement.
Subject to Clause 4.8, no announcement or public statement concerning the
existence, subject matter or any term of this Agreement shall be made by
or on behalf of any party hereto without the prior written approval of the
other party (Elan Corp in the case of the Shareholders).
The terms of any such announcement shall be agreed in good faith by the
parties.
4.8 A party (the "Disclosing Party") will be entitled to make an announcement
or public statement concerning the existence, subject matter or any term
of this Agreement, or to disclose Confidential Information that the
Disclosing Party is required to make or disclose pursuant to:
4.8.1 a valid order of a court or Governmental Authority; or
4.8.2 any other requirement of law, regulation or any securities market or
stock exchange;
provided that if the Disclosing Party becomes legally required to make
such announcement, public statement or disclosure hereunder, the
Disclosing Party shall give the other party or parties hereto prompt
notice of such fact to enable the other party or parties hereto to seek a
protective order or other appropriate remedy concerning any such
announcement, public statement or disclosure.
The Disclosing Party shall fully co-operate with the other party or
parties hereto in connection with that other party's or parties' efforts
to obtain any such order or other remedy.
If any such order or other remedy does not fully preclude announcement,
public statement or disclosure, the Disclosing Party shall make such
announcement, public statement or disclosure only to the extent that the
same is legally required.
4.9 Any notice to be given under this Agreement shall be sent in writing in
English by registered or recorded delivery post, reputable overnight
courier or fax to:
EISL at
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Elan International Services Ltd.
000 Xx. Xxxxx Xxxxx
Xxxxxx,
Xxxxxx XX00
Bermuda
Attention: Secretary
Fax: x0 000 000 0000
Monksland at
Monksland Holdings B.V.
Rivierstaete Office Building - 6th Floor
Amsteldijk 166
1079 LH Amsterdam
The Netherlands
Attention: Xxxxxx Xxxxx/Xxxxxxxx Stijger
Fax: x00 00 000 0000
with a copy in the case of each of EISL and Monksland (receipt of
which shall not constitute notice) to:
Elan Corporation, plc.
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxx 0
Xxxxxxx
Attention: Senior Vice President, Legal
Fax: x000 0 000 0000
Amarin at
0 Xxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Xxxxxxx
Attention: General Counsel & Company Secretary
Fax: x00 00 0000 0000
or to such other address(es) and fax numbers as may from time to time be
notified by either party to the other hereunder.
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Any notice sent by mail shall be deemed to have been delivered within 7
working days after despatch or delivery to the relevant courier and any
notice sent by fax shall be deemed to have been delivered upon
confirmation of receipt. Notice of change of address shall be effective
upon receipt.
4.10 Amarin and the Shareholder shall each be responsible for one half of the
stamp duty reserve tax payable on the transfer of the Shareholder's
Ordinary Shares to the depositary. Amarin shall be responsible for any
other fees, duty or taxes arising from the registration set out in the
Registration Rights Agreement and/or the transfer of such Ordinary Shares
to the depositary. Save as aforesaid, each party shall bear its own legal
and other costs incurred in relation to preparing and concluding this
Agreement.
IN WITNESS whereof this Agreement has been executed and delivered as a deed on
the date first above written.
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EXECUTED and delivered as a deed )
by AMARIN CORPORATION PLC )
Acting by: )
)
Director ) /s/ Xxxxxxx Xxxxxxx
)
Secretary ) /s/ Xxxxxxxx Xxxx
The Common Seal of )
ELAN INTERNATIONAL )
SERVICES, LTD. )
was hereunto affixed in the )
presence of: )
Director /s/ Xxxxx Xxxxxx
Director /s/ Xxxxxxx Xxxxx
SIGNED and delivered as a Deed )
by ) /s/ Xxxxxx Xxxxx
)
as attorney for ) /s/ Klass Xxx Xxxxxxx
MONKSLAND HOLDINGS BV )
in the presence of: )
------------------------
Signature of witness
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SCHEDULE 1
Shares
Shareholder Shares
Elan International Services Limited 2,529,819 Ordinary Shares, less
such number of Ordinary Shares
as may be sold to the Investors
Elan International Services Limited 2,000,000 Preference Shares,
which are convertible into an
equivalent number of Ordinary
Shares
Monksland Holdings BV 124,000 Ordinary Shares (54,000
of which are represented by
American Depositary Receipts),
less such number of Ordinary
Shares as may be sold to the
Investors
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SCHEDULE 2
Preference Conversion Notice
To: Amarin Corporation plc (the "COMPANY")
We hereby give notice of our desire to exercise our rights conferred on us as
holders of Preference Shares to convert Preference Shares to ordinary shares of
the Company (the "CONVERSION RIGHTS") on [ o ] January 2003 (the "PREFERENCE
CONVERSION DATE") immediately after closing of the Private Placement in respect
of 2,000,000 Preference Shares of Pound Sterling 1 each in accordance with the
rights attached to the Preference Shares.
It is anticipated that the Company will waive the requirements in clause 3.2 of
Part 1 of the Appendix to the Second Subscription Agreement.
We desire that 2,000,000 ordinary shares of Pound Sterling 1 each in the capital
of the Company to be allotted on such exercise of our Conversion Rights be
allotted to and registered in our name and hereby authorise the entry of our
name in the register of Members in respect thereof and the delivery of a
Certificate therefore to Elan International Services, Ltd. as soon as reasonably
practicable after the Preference Conversion Date.
We agree to accept all the fully paid ordinary share capital of the Company to
be allotted to us pursuant hereto subject to the Memorandum and Articles of
Association of the Company.
EXECUTED AS A DEED by ELAN INTERNATIONAL SERVICES, LTD.
Date: ___ January 2003
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EXHIBIT A
[see attached form of Share Purchase Agreement between Shareholder and
Investors]
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EXHIBIT B
[see attached Amended Private Placement Memorandum dated 10 December 2002
and Letter referred to]
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