EXECUTION COPY
AMARIN CORPORATION PLC
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As of April 11, 2006
Citibank, N.A. - ADR Department
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Additional Series of Restricted ADSs - Cusip No.: ▇▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to (i) the Deposit Agreement, dated as of March
29, 1993, as amended by Amendment No. 1 to Deposit Agreement, dated as of
October 8, 1998, and as further amended by Amendment No. 2 to Deposit Agreement,
dated as of September 25, 2002 (the Deposit Agreement as amended by Amendment
No. 1 to Deposit Agreement and Amendment No. 2 to Deposit Agreement, the
"Deposit Agreement"), by and among Amarin Corporation plc (formerly known as
"Ethical Holdings plc"), a corporation organized and existing under the laws of
England and Wales (the "Company"), Citibank, N.A., as Depositary (the
"Depositary"), and all Holders from time to time of American Depositary Receipts
("ADRs") evidencing American Depositary Shares ("ADSs") issued thereunder and
(ii) the letter agreement, dated as of March 29, 2006 (the "Letter Agreement"),
between the Company and the Depositary relating to the issuance of Restricted
ADSs (as defined in the Letter Agreement). Capitalized terms used but not
defined herein shall have the meanings given to them in the Letter Agreement.
Pursuant to the Letter Agreement, the Company and the Depositary
established procedures to enable owners of its Shares that constitute Restricted
Securities to hold such Shares in the form of Restricted ADSs. This letter
agreement (the "Supplemental Letter Agreement") is being entered into between
the Company and the Depositary pursuant to, and as contemplated by, the Letter
Agreement, and shall be subject to the terms of the Letter Agreement and the
Deposit Agreement. The purpose and intent of this Supplemental Letter Agreement
is to supplement the Letter Agreement for the purpose of providing for the
deposit of Shares that are Restricted Securities into the Company's ADR facility
and the issuance of a new series of Restricted ADSs relating to such Shares at
the request of the Company.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Depositary hereby agree,
notwithstanding the terms of the Deposit Agreement, as follows:
Additional Series of Restricted ADSs. The Company hereby consents,
under Section 2.02 of the Deposit Agreement and Section 1 of the Letter
Agreement, to the deposit by the Share Owners (the list of Share Owners attached
hereto as Exhibit A, the "List of Share Owners") of 670,682 Restricted Shares
and the issuance and delivery by the Depositary of the corresponding number of
Restricted ADSs (CUSIP No.: ▇▇▇▇▇▇▇▇▇) in respect thereof, upon the terms of the
Letter Agreement, to the Share Owners or their respective designees specified
therein. The Restricted ADSs described in the immediately preceding sentence and
the Restricted ADRs evidencing such Restricted ADSs and the Share Owners
specified on the List of Share Owners are referred to herein as the "Designated
Restricted ADSs", the "Designated Restricted ADRs", and the "Designated
Shareholders", respectively. The Designated Restricted ADSs, the Restricted
Shares represented thereby, the Designated Restricted ADRs evidencing such
Restricted ADSs and the Designated Shareholders shall constitute "Restricted
ADSs", "Restricted Shares", "Restricted ADRs", and "Share Owners" for all
purposes under the Letter Agreement and the transfer or cancellation thereof
shall be subject to and effected only in accordance with the terms and
conditions of the Letter Agreement and the Deposit Agreement, including any
certification requirements and opinions of counsel as described therein, except
as provided in this Supplemental Letter Agreement.
Stop Transfer Notation and Legend. The books of the Depositary shall
identify the Designated Restricted ADSs as "restricted" and shall contain a
"stop transfer" notation to that effect. The Designated Restricted ADRs shall
contain the following legend:
THIS RESTRICTED AMERICAN DEPOSITARY RECEIPT ("RESTRICTED ADR"), THE
RESTRICTED AMERICAN DEPOSITARY SHARES ("RESTRICTED ADSs") EVIDENCED HEREBY AND
THE UNDERLYING RESTRICTED SHARES ("RESTRICTED SHARES") OF THE COMPANY ARE
SUBJECT TO THE TERMS OF THE SUPPLEMENTAL LETTER AGREEMENT, DATED AS OF APRIL 11,
2006 (THE "SUPPLEMENTAL LETTER AGREEMENT"), AND THE DEPOSIT AGREEMENT, DATED AS
OF MARCH 29, 1993, AS AMENDED AND SUPPLEMENTED PRIOR TO THE DATE HEREOF (AS SO
AMENDED AND SUPPLEMENTED PRIOR TO THE DATE HEREOF, 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 EVIDENCED BY THIS
RESTRICTED ADR BY ACCEPTING AND HOLDING THE RESTRICTED ADSs, AND ANY INTEREST
THEREIN, SHALL BE BOUND BY THE TERMS OF THE DEPOSIT AGREEMENT AND THE
SUPPLEMENTAL LETTER AGREEMENT. AT THE TIME OF ISSUANCE, THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAD NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR REGISTERED OR
QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO (A) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT IN A TRANSACTION
REGISTERED OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS, OR (B) AN
2
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.
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 THE SUPPLEMENTAL LETTER AGREEMENT. THE
TRANSFER AND OTHER RESTRICTIONS SET FORTH HEREIN AND IN THE SUPPLEMENTAL LETTER
AGREEMENT SHALL REMAIN APPLICABLE WITH RESPECT TO THESE SECURITIES 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.
This Supplemental Letter Agreement shall be interpreted and all the
rights and obligations hereunder shall be governed by the laws of the State of
New York without regard to the principles of conflicts of law thereof.
3
The Company and the Depositary have caused this Supplemental Letter
Agreement to be executed and delivered on their behalf by their respective
officers thereunto duly authorized as of the date set forth above.
CITIBANK, N.A.
as Depositary
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
AMARIN CORPORATION PLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
EXHIBITS
A List of Share Owners
B Resale Certification and Instruction Letter
C Withdrawal Certification
4
EXHIBIT A
_____________________
LIST OF SHARE OWNERS
_____________________
Number of Designated
Name of Share Owner Address of Share Owner Restricted Shares Owned
------------------- ---------------------- -----------------------
Amarin Investment Holdings Clarendon House 302,170
Limited / ▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ ZAO Samara-Nafta, 4 261,881
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
Sunninghill Limited Kleinwort ▇▇▇▇▇▇ House 67,148
Wests Centre
St. Helier
Jersey JE4 8PQ, Channel Islands
J&E Davy Stockbrokers / ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 20,078
Ranelagh
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Mardleybury Manor 13,429
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ 3,357
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
J&E Davy Stockbrokers / ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2,619
▇▇▇▇▇▇▇▇▇▇ Carrickmines Wood
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
A-1
EXHIBIT B
_____________________
RESALE CERTIFICATION AND INSTRUCTION LETTER
_____________________
Citibank, N.A., as Depositary
c/o Agency & Trust Department
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: Broker Services
Amarin Corporation plc (Cusip No.: ▇▇▇▇▇▇▇▇▇)
Dear Sirs:
Reference is hereby made to (i) the Deposit Agreement, dated as of
March 29, 1993, as amended by Amendment No. 1 to Deposit Agreement, dated as of
October 8, 1998, and as further amended by Amendment No. 2 to Deposit Agreement,
dated as of September 25, 2002 (the Deposit Agreement as amended by Amendment
No. 1 to Deposit Agreement and Amendment No. 2 to Deposit Agreement, the
"Deposit Agreement"), by and among Amarin Corporation plc (formerly known as
"Ethical Holdings plc"), a corporation organized and existing under the laws of
England (the "Company"), Citibank, N.A., as Depositary (the "Depositary"), and
all Holders from time to time of American Depositary Receipts (the "ADRs")
evidencing by American Depositary Shares ("ADSs") issued thereunder, (ii) the
Letter Agreement, dated as of March 29, 2006, by and between the Company and the
Depositary, and (iii) the Supplemental Letter Agreement, dated as of April 11,
2006 (the "Letter Agreement"), by and between the Company and the Depositary.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Deposit Agreement, or, in the event so noted herein, in the Letter
Agreement.
This Resale Certification is being provided in connection with our
request to the Depositary to transfer __________(insert number) of Restricted
ADSs (CUSIP No.: ▇▇▇▇▇▇▇▇▇) registered in the name of the undersigned or the
undersigned's designee in the form of freely transferable ADSs in connection
with our sale of such ADSs in a transaction exempt from registration under the
Securities Act or covered by a Registration Statement (the "Sale").
B-1
The undersigned certifies that (please check appropriate box below):
* |_| Sale Pursuant to Resale Registration Statement: (x) the Sale
pursuant to which its Restricted ADSs are being sold is covered by a
registration statement under the Securities Act that has been declared effective
by the Commission and is currently in effect, (y) the ADSs to be delivered upon
such sale are not "Restricted Securities" (as defined in the Letter Agreement),
and (z) the undersigned has satisfied all applicable prospectus delivery
requirements under the Securities Act,
OR
* |_| Sale Exempt from Registration (Rule 144(k) sales only): the
Restricted ADSs to be transferred and the Restricted Shares represented thereby
are not (x) held by an affiliate of the Company or a person who has been an
affiliate of the Company during the preceding three months, and (y) at least two
years has elapsed since the Restricted Shares represented by such Restricted
ADSs were acquired from the Company or an affiliate of the Company,
OR
**|_| Sale Exempt from Registration (Sales Other than Pursuant to
Rule 144(k)): the Restricted ADSs to be transferred and the Restricted Shares
represented thereby are being transferred in a transaction exempt from
registration under the Securities Act and the ADSs to be delivered upon transfer
are not "Restricted Securities" (as defined in the Letter Agreement.
The undersigned hereby requests that the Depositary: (i) accept, for
the issuance of ADSs, the surrender of
Restricted ADR(s) (Certificate Number(s)):
_______________________
evidencing
_______________________
Restricted ADSs (CUSIP No.: ▇▇▇▇▇▇▇▇▇), and
----------
* The Company may have delivered the requisite opinion of counsel to cover
this transaction to the Depositary.
** The delivery of the requisite opinion of counsel to cover this transaction
is the responsibility of the selling Restricted ADS holder.
B-2
(ii) following confirmation of receipt by the Depositary of the
surrender of the Restricted ADR(s) provided for in (i) above, issue and deliver
"free" the following number of ADSs:
_______________________
(CUSIP No.: ▇▇▇▇▇▇▇▇▇)
to the person(s) identified below:
1. If ADSs are to be issued and delivered by means of book-entry transfer
to the DTC account of the undersigned:
Name of DTC Participant acting for
undersigned:
DTC Participant Account No.:
Account No. for undersigned at DTC
Participant (f/b/o information):
Onward Delivery Instructions of undersigned:
Contact person at DTC Participant:
Daytime telephone number of contact person at
DTC Participant:
2. If ADSs are to be issued delivered in the form of an ADR:
Name of Purchaser:
Street Address:
City, State, and Country:
Nationality:
Social Security or Tax Identification
Number:
B-3
The undersigned hereby instructs the Depositary to cancel the
enclosed Restricted ADR evidencing the Restricted ADSs to be transferred to the
purchaser pursuant to the Sale and, if applicable, to reissue a Restricted ADR
evidencing the number of Restricted ADSs held by the undersigned and not
transferred pursuant to the Sale.
[NAME OF CERTIFYING OWNER]
By: ___________________________
Name:
Title
Signature Guarantee:
_____________________
Name:
Title
B-4
EXHIBIT C
_____________________
WITHDRAWAL CERTIFICATION
_____________________
Citibank, N.A., as Depositary
c/o Agency & Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor/Zone ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: Broker Services
Amarin Corporation plc (Cusip No.: ▇▇▇▇▇▇▇▇▇)
Dear Sirs:
Reference is hereby made to (i) the Deposit Agreement, dated as of
March 29, 1993, as amended by Amendment No. 1 to Deposit Agreement, dated as of
October 8, 1998, and as further amended by Amendment No. 2 to Deposit Agreement,
dated as of September 25, 2002 (the Deposit Agreement as amended by Amendment
No. 1 to Deposit Agreement and Amendment No. 2 to Deposit Agreement, the
"Deposit Agreement"), by and among Amarin Corporation plc (formerly known as
"Ethical Holdings plc"), a corporation organized and existing under the laws of
England (the "Company"), Citibank, N.A., as Depositary (the "Depositary"), and
all Holders from time to time of American Depositary Receipts (the "ADRs")
evidencing by American Depositary Shares ("ADSs") issued thereunder, (ii) the
Letter Agreement, dated as of March 29, 2006, by and between the Company and the
Depositary, and (iii) the Supplemental Letter Agreement, dated as of April 11,
2006 (the "Letter Agreement"), by and between the Company and the Depositary.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Deposit Agreement, or, in the event so noted herein, in the Letter
Agreement.
This Withdrawal Certification is being furnished in connection with
the withdrawal of Shares (as defined in the Letter Agreement) upon surrender of
Restricted ADSs (as defined in the Letter Agreement) to the Depositary.
(A) We acknowledge, or, if we are acting for the account of another
person, such person has confirmed to us that it acknowledges, that the
Restricted ADSs and the Shares represented thereby have not been registered
under the Securities Act; and
(B) We certify that we, and, if we are not the beneficial owner, the
beneficial owner has certified that it, will sell the Shares in compliance with
the requirements of the U.S. securities laws (including, without limitation, the
applicable laws of the states of the United States), and we, and, if we are not
the beneficial owner, the beneficial owner has certified that it, will not
deposit, or cause to be deposited, such Shares into any depositary receipts
facility established or maintained by a depositary bank other than a restricted
facility established and maintained for such purpose.
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By: _______________________
Name:
Title:
Date:
Signature Guarantee:
_______________________
Name:
Title:
C-2