Contract
Exhibit 4.78
Certain
portions of this Exhibit have been omitted pursuant to a request for
“Confidential Treatment” under Rule 24b-2 of the Securities and Exchange
Commission. Such portions have been redacted and bracketed in the request and
appear as [*] in the text of this Exhibit. The omitted confidential information
has been filed with the Securities and Exchange
Commission.
Between
ProSeed Capital and Amarin Pharmaceuticals Ireland Limited
GENERAL:
This
Agreement is made and entered into as of the date of last signature of this
Agreement.
Parties:
AMARIN PHARMACEUTICALS IRELAND
LIMITED an Irish company whose address is Xxxxx Xxxxx, Xxxxx 0, Xxx Xxxx,
Xxxxxxxxxxx, Xxxxxx 0, Xxxxxxx, and legally affiliated entities (the “Company”)
and,
Proseed
Capital Holdings CVA, a Belgian company whose registered office is at 000 Xxxxxx
xx Xxxxxxxxxxx, 0000 Xxxxxxxx, Xxxxxxx, and its legally affiliated entities,
hereinafter referred to as “ProSeed”
Purpose
The
purpose of this Agreement is to set forth the terms and conditions of the
Collaboration between the Company and ProSeed.
THE
COLLABORATION:
On the
terms and subject to the conditions of this Agreement, ProSeed will provide the
Company with such business advice and assistance detailed below as may be
appropriate and mutually agreed upon by the Company and ProSeed (the “Collaboration”).
Background
& Objectives:
The
Company is a CNS therapeutics biopharmaceutical organization with pre-clinical
and clinical stage products. The key objective of the Collaboration
between the Company and ProSeed is a Corporate Transaction, as
described further below, other than a pure financing (pure financing is covered
by separate agreements between the Parties).
Throughout
the Term (as defined below) ProSeed shall at all times liaise with the Company
and obtain the Company’s written consent before making contact with any third
party with regard to a potential Corporate Transaction (upon consent being given
to such contact such a party shall be deemed a “Covered Party”) and ProSeed
shall use its best efforts to identify and/or locate for the Company prospective
Corporate Transaction
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candidates.
Notwithstanding the above, prior to the Commencement Date (as defined below in
Section 2), the Company had given consent to ProSeed to contact a number of
companies which are also deemed to be Covered Parties and which are listed in
full in Schedule A. Additional names may be added to Schedule A provided
pre-approved by the Company.
As part
of the process ProSeed shall in such manner as is pre-agreed by the Company on a
case by case basis for each Covered Party:
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(i)
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provide
the Company with corporate contacts to access key
decision-makers and influencers within Covered
Parties;
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(ii)
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help
facilitate the business process;
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(iii)
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help
recruit internal champions within Covered Parties and present,
and follow-up with each key corporate
contact;
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(iv)
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participate
in face to face meetings and in conference call sessions with Covered
Parties;
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(v)
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assist
the Company where required throughout the negotiation in order to complete
successful agreements;
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(vi)
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involve
the Company in all aspect of the process including in major presentations,
conference calls and face to face meetings;
and
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(vii)
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provide
such other services as may be reasonably requested by the Company and
mutually agreed upon by ProSeed and the
Company.
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TERMS
AND CONDITIONS
1. PROFESSIONAL
FEES:
ProSeed’s
compensation shall be as follows:
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1.1 Success
Fee -
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1.1.1(a) Subject
to Section 1.1.1(b) and Section 1.1.2(b), in the event that the Company enters
into a Corporate Transaction, as hereinafter defined, with a Covered Party, then
the Company agrees to pay to ProSeed or its designees [*] of all Consideration
in the Corporate Transaction (the “Success Fee”).
1.1.1(b) In
the event that the Company enters into a Corporate Transaction with a Covered
Party relating to the acquisition of the entire issued outstanding share capital
of the Company or the acquisition of all or substantially all of the assets of
the Company, then the Company agrees to pay to ProSeed or its designees a fee
calculated by reference to the table set out below, being the sum of the amount
payable within the bands set out
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below of
the Consideration in the Corporate Transaction at the corresponding percentage
rate:
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Amount
of Consideration
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Percentage
Payable to ProSeed
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First
$[*]
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[*]
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Next
$[*]
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[*]
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Increments
above $[*]
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[*]
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PROVIDED THAT the total
aggregate amount payable by the Company to ProSeed under this Section 1.1.1(b)
shall be $[*] (the “Acquisition
of Amarin Success Fee Cap”).
1.1.1(c) Subject
to Section 1.1.2(b), the form of fee paid to ProSeed in any Corporate
Transaction (i.e. cash and/or cash worth) shall be dictated by the actual form
of Consideration in the relevant transaction.
1.1.1(d) For
the avoidance of doubt, no sum shall be payable to ProSeed whether hereunder or
otherwise in respect of any transaction which is not a Corporate Transaction or
in respect of any transaction with a party which is not a Covered Party. The
parties shall keep a list of Covered Parties which shall be amended upon each
occasion the Company agrees to further additions to such list.
1.1.2 (a) The
Success Fee shall be calculated on all cash and non-cash consideration in the
Corporate Transaction paid to the Company (e.g., in the case of out-licensing,
acquisition of the Company or its assets, etc.) or by the Company (e.g., in the
case of in-licensing, acquisitions by the Company, etc.), as the case may be in
the relevant Corporate Transaction, during the Eligibility
Period (individually and collectively referred to as the “Consideration”) and shall
apply during such Eligibility Period to all Corporate Transactions between the
Company and a Covered Party (or any company within the same group of companies
as such Covered Party) where the Corporate Transaction occurs during the Term or
within [*] (the “Tail”)
from the termination or expiration of this Agreement. The “Eligibility Period” shall
mean the period starting on the closing date of a Corporate Transaction and
ending [*] from such closing.
(b) In
the case of a Corporate Transaction which involves the Company paying out
Consideration (in-licensing or acquisition by the Company), then (i) the Success
Fee payable by the Company to ProSeed on that portion of Consideration which is
immediately payable upon closing of the Corporate Transaction (the “Upfront Success Fee”) will be
capped at $[*] (the “Upfront
Success Fee Cap”) PROVIDED THAT the first $[*]
of the Upfront Success Fee shall be payable in cash and the remainder of the
Upfront Success Fee shall, at the Company’s sole discretion and subject to the
Upfront Success Fee Cap, be payable in cash and/or non-cash consideration; and
(ii) the remaining Success Fee payable after closing of that Corporate
Transaction shall not be
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subject
to the Upfront Success Fee Cap. For the avoidance of any doubt, the
Upfront Success Fee Cap shall apply only to in-licensing or acquisitions by the
Company and does not apply in any way whatsoever to any other Corporate
Transaction.
1.1.3 As
used herein, a “Corporate
Transaction” shall mean any form of agreement with a Covered Party
including without limitation any form of in-licensing or out-licensing,
collaborative joint venture, distribution, asset purchase, asset sale, asset
exchange, M&A, research and development agreement, etc..
1.1.4 The
Success Fee shall be paid and issued respectively, within 30 days of the actual
receipt of, or payment by, the Company of the relevant
Consideration.
2. TERM
AND TERMINATION:
The
parties agree that the Agreement will be deemed to have commenced on 2 October
2007 (the “Commencement
Date”) and shall continue until terminated in accordance with the
provisions of this Agreement (the “Term”).
The
Company and ProSeed will have the right to terminate the Agreement with 30 days
written notice at any time on or after 12 months from the Commencement Date;
except that ProSeed shall be entitled to the fees payable pursuant to Section 1
hereof and except that approved expenses incurred by ProSeed as a result of
services rendered prior to the date of the termination shall become immediately
payable in full.
3. EXPENSES:
Subject
to pre-approval by the Company, the Company will reimburse ProSeed monthly for
expenses to include travel expenses including the participation in all face to
face meetings with target entities, regulatory experts and external consultants,
video and phone conference calls, access to paid databases or any other
pre-approved expenses.
4. RELATIONSHIP:
Nothing
in this Agreement shall make or be deemed to make ProSeed an agent, employee or
partner of the Company and Proseed shall not without the Company’s prior written
consent incur any liability or obligation in the name of and/or on behalf of the
Company or otherwise commit or bind the Company in any way. ProSeed understands
that it does not have the right to commit or bind the Company to any third party
agreement. The Company shall have sole and absolute right to accept
or reject any proposed transaction resulting from ProSeed’s efforts and the
Success Fee shall be payable by Company to ProSeed in the manner set out above
only if and when a Corporate Transaction is finally executed, exchanged and
closed by the Company and the counterparty or counterparties and all
pre-conditions to closing are satisfied in full.
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For the
avoidance of doubt, it is hereby clarified, that by entering into this Agreement
the Company does not grant ProSeed the exclusive right to provide the Company
with the services and support described herein, and the Company shall be
entitled and shall have the full right according to its sole discretion to
establish any connection with any person or corporation, either by itself or by
others on its behalf.
5. USE
OF INFORMATION:
The
Company acknowledges that all opinions and advice (oral or written) given by
ProSeed to the Company and/or its officers, directors, employees or others in
connection with ProSeed's engagement hereunder, are intended solely for the
benefit of the Company and may be used by the Company in considering the matters
to which they relate. The Company agrees that no such opinion or advice may be
used by any other person, firm or entity or otherwise reproduced, disseminated,
quoted or referred to at any time, in any manner or be made available by the
Company (or such persons), without ProSeed's express written
consent.
6. LIABILITY OF
PROSEED:
In
furnishing the Company with management advice and other services, ProSeed or any
of their officers, directors, consultants, advisors, partners, agents or
affiliates shall not be liable to the Company or its creditors for errors of
judgment or for any other act except breach of the terms of this Agreement,
willful misconduct or bad faith in the performance of ProSeed’s duties. ProSeed
understands that it is not being asked to render a fairness opinion with respect
to any proposed transaction.
It is
further understood and agreed that ProSeed is relying upon information furnished
to it, which it reasonably believes to be accurate and reliable, and that,
except as herein provided, Proseed shall not be accountable for any loss
suffered by the Company by reason of the Company action or inaction on the basis
of any recommendation, advice or approval of Proseed, its partners, employees,
or agents.
7. OWNERSHIP AND
RIGHTS:
All the Company information and all
title, patents, patent rights, and other intellectual property owned by the
Company (collectively “Rights”) in connection therewith shall remain the sole
property of the Company.
8. CONFIDENTIALITY:
For the
purposes of this Agreement, the term “Confidential Information”
shall mean this Agreement, and any information, either in oral or written form,
owned by either the
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Company
or ProSeed and communicated to the other and so identified as Confidential
Information including all Proseed reports and progress reports, planning
documents, ideas, techniques, proprietary know-how, formulations, market data,
financial plans, members of ProSeed’s network and customer lists, activities,
products and services of the Company and/or of companies and/or entities in
which the Company has an interest including by way of holdings and/or investing
therein, or products and services, business and marketing plans, customers,
prospective developments and plans, etc. Further, the Company agrees that all
information regarding ProSeed, its directors, advisors, consultants and network
members, this Agreement’s terms and any proposals and written reports provided
by ProSeed shall be considered Confidential Information.
During
the Term and for a period of five (5) years following the expiration and/or
termination hereof, each party (except as is explicitly otherwise provided
hereby) shall keep confidential, shall not use for itself or for the benefit of
others and shall not copy or allow to be copied in whole or in part any
Confidential Information disclosed to such party by the other.
The
obligations of confidentiality imposed upon the parties hereto shall not apply
with respect to Confidential information which:
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A.
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Is
known to the recipient thereof prior to receipt thereof from the other
party hereto, in a manner which did not result in the breach of any
confidentiality obligation between disclosing party and any other
party;
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B.
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Is
disclosed to said recipient after the date hereof by a third party who has
the right to make such disclosure;
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C.
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Is
or becomes a part of the public domain through no fault of the said
recipient; or
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D.
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Is
required to be disclosed by applicable law, regulation or court proceeding
in which case the recipient shall give the disclosing party as much
advance notice of the proposed disclosure as is practical (including a
copy of any written request or order), and shall cooperate with the
disclosing party in any effort to limit or restrict such disclosure, via a
protective order or otherwise.
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9. LIMITATION ON BUSINESS
ACTIVITY:
During
the Term of this Agreement and until 12 months from its expiration or
termination neither party shall solicit or request any of the other’s employees,
directors, advisors, consultants as a paid or unpaid consultant, advisor,
employee or board member, without prior written approval (such approval not to
be unreasonably withheld, conditioned or delayed).
10. TRACKING
OF PAYMENTS:
The
Company shall notify ProSeed promptly on any Corporate Transaction or other
events that makes ProSeed eligible to Success Fees (the “Event”) according to the
agreed
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terms
herein. Proseed shall receive a copy of any agreement between the Company and
the relevant counterparty or counterparties. The Company shall keep
adequate records to accurately determine the payments due under this Agreement
and shall upon written request from ProSeed provide ProSeed such records on an
annual basis until such date when the Company meets all its payment obligations
under this Agreement.
11. RIGHT
TO REVIEW RECORDS
ProSeed
shall have the right to use one of the top five accounting firms (or other
accounting firm, if acceptable both to the Company and Proseed) to audit the
relevant records of the Company and verify the reports and payments required to
be made hereunder any one time in any year. A reasonable notice of at least
twenty one (21) business days shall be provided to the Company prior to such
audit.
12. SURVIVAL
OF COMMITMENTS
All
clauses, commitments and obligations of the Company and ProSeed described in
this Agreement shall survive the termination or expiration of the Agreement for
any reason, and shall bind any successor and assigns of any substantial portion
of the Company and shall survive the Company’s acquisition by, or merger with a
third party entity.
13.
ANNOUNCEMENT:
Following
the closing and public announcement of any Corporate Transaction, ProSeed may,
at its own expense, place customary tombstone announcements or advertisements in
financial newspapers and journals describing its services hereunder provided
that any such announcement or advertisement is pre-approved by the
Company.
14.
GOVERNING
LAW:
Interpretation
of this Agreement, as well as resolution of all disputes arising out of or
related to this Agreement or the validity, performance, enforcement, breach or
termination of this Agreement and any remedies relating thereto, shall be
governed by and construed under the laws of England.
15. DISPUTE
RESOLUTION:
Any
dispute, controversy or claim initiated by either party arising out of,
resulting from or relating to this Agreement, or the performance by either party
of its obligations under this Agreement whether before or after termination of
this Agreement, shall be submitted to a single arbitrator to be agreed by the
parties. In the event that the parties are unable to select an
arbitrator acceptable to both parties within 20 days of the date one party has
notified the other party of its request for arbitration, the dispute shall be
finally settled under the Rules of Arbitration of the International Chamber of
Commerce by one or more
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arbitrators
appointed in accordance with the said Rules. The cost of arbitration shall be
borne by the party whose contention was not upheld by the arbitration
proceedings, unless otherwise provided in the arbitration award.
16. MISCELLANEOUS:
This
Agreement sets forth the entire agreement and understanding between the parties
and supersedes all prior agreements and understandings relating to the subject
matter hereof. If any provision of this Agreement is determined to be
invalid or unenforceable in any respect, such determination will not affect such
provision in any other respect or any other provision of this Agreement, which
will remain in full force and effect. This Agreement may not be
amended or otherwise modified or waived except by an instrument in writing
signed by both Proseed and the Company. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which shall constitute one and the same agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
respective officers and/or representatives duly authorized under seal, the day
and year first above written.
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The
Company
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PROSEED
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By:
/s/ Xxx
Xxxxx
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By: /s/
Xxxxxxxx
Van Oudenhove
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Name:
Xxx Xxxxx
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Name:
Xxxxxxxx Van Oudenhove
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Title:
Company Secretary
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Title:
Chairman
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Date:
January 8,
2008
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Date:
______________________
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9
Schedule
A Covered Parties as at Commencement Date
Samaritan
NeuroDerm
Ltd
Xxxxxx
Neurosciences Ltd
D-Pharm
Ltd
Xytis
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