EQUITY SECURITIES PURCHASE AGREEMENT
Exhibit
99.6
EQUITY
This
Securities Purchase Agreement (this “Agreement”) is dated as of December
4, 2007, between Amarin Corporation plc, a corporation formed under the laws
of
England and Wales (the “Company”), and each purchaser identified on the
signature pages hereto (each, including its successors and assigns, a
“Purchaser” and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
an effective registration statement under the Securities Act of 1933, as
amended
(the “Securities Act”), the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company, securities of the Company as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of
which
are hereby acknowledged, the Company and each Purchaser agree as
follows:
ARTICLE
1.
DEFINITIONS
Section
1.1. Definitions. In addition to the terms defined
elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:
“ADSs”
means American Depositary Shares, each representing one Ordinary Share of
the
Company, par value GBP 0.05 per share, and each evidenced by an American
Depositary Receipt, issued pursuant to the terms of the Deposit
Agreement.
“Affiliate”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
a
Person as such terms are used in and construed under Rule 405 under the
Securities Act. With respect to a Purchaser, any investment fund or
managed account that is managed on a discretionary basis by the same investment
manager as such Purchaser will be deemed to be an Affiliate of such
Purchaser.
“Base
Prospectus” means the prospectus in the form in which it appears in the
Registration Statement.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a
federal legal holiday in the United States or any day on which banking
institutions in
the
State
of New York are authorized or required by law or other governmental action
to
close.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to
Section
2.1.
“Closing
Date” has the meaning set forth in Section 2.1(3).
“Commission”
means the Securities and Exchange Commission.
“Common
Stock” means the Ordinary Shares of the Company, par value GBP 0.05 per
share, and any other class of securities into which such securities may
hereafter be reclassified or changed into.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive,
Common
Stock.
“Company
Counsel” means ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇,
and
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ LLP, London,
England.
“Deposit
Agreement” means the Company’s agreement with National City Nominees Limited
of Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, being
the
nominee of Citibank, N.A., the Company’s depositary for its ADS program (the
“ADS Depositary”).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to
employees, officers or directors of the Company pursuant to any stock or
option
plan duly adopted for such purpose, by a majority of the non-employee members
of
the Board of Directors or a majority of the members of a committee of
non-employee directors established for such purpose, (b) securities upon
the
exercise or exchange of or conversion of any Securities issued hereunder
and/or
other securities exercisable or exchangeable for or convertible into shares
of
Common Stock issued and outstanding on the date of this Agreement, provided
that
such securities have not been amended since the date of this Agreement to
increase the number of such securities or to decrease the exercise, exchange
or
conversion price of such securities, (c) warrants to purchase 10,000 shares
of
Common Stock issued or to be issued to ▇▇▇ ▇▇▇▇▇▇▇ and shares of Common Stock
upon exercise thereof, (d) shares of Common Stock in connection with the
acquisition by the Company of Ester Neurosciences Ltd., an Israeli company,
pursuant to the definitive agreement relating thereto, and payment of related
fees, (e) the convertible debt and equity financings concurrently being offered
by the Company as described in the Prospectus
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Supplement,
and (f) securities issued pursuant to acquisitions or strategic transactions
approved by a majority of the disinterested directors of the Company, provided
that any such issuance shall only be to a Person which is, itself or through
its
subsidiaries, an operating company in a business synergistic with the business
of the Company and in which the Company receives benefits in addition to
the
investment of funds, but shall not include a transaction in which the Company
is
issuing securities primarily for the purpose of raising capital or to an
entity
whose primary business is investing in securities.
“Material
Adverse Effect” shall have the meaning set forth in Section
3.1(1).
“Per
Unit Purchase Price” equals $0.33.
“Person”
means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other
entity
of any kind.
“Prospectus”
means the final prospectus filed for the Registration Statement.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule
424(b) of the Securities Act that is filed with the Commission and delivered
by
the Company to each Purchaser at the Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in Section
4.8.
“Registration
Statement” means the effective registration statement with Commission file
No. 333-135718 which registers the sale of the Shares, the Warrants and the
Warrant Shares to the Purchasers.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.
“SEC
Reports” means all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years
preceding the date hereof (or such shorter period as the Company was required
by
law to file such material).
“Securities”
means the Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“Shares”
means the ADSs issued or issuable to each Purchaser pursuant to this
Agreement.
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“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO
under the Exchange Act (but shall not be deemed to include the location and/or
reservation of borrowable shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for
Shares and Warrants purchased hereunder as specified below such Purchaser’s name
on the signature page of this Agreement and next to the heading “Subscription
Amount,” in United States dollars and in immediately available funds, and shall
equal the Per Unit Purchase Price times the number specified below such
Purchaser’s name on the signature page of this Agreement and next to the heading
“Shares.”
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, include
any
subsidiary of the Company formed or acquired after the date hereof.
“Time
of Sale Prospectus” means the preliminary prospectus, if any, together with
the free writing prospectuses, if any, used in connection with the sale
contemplated by this Agreement, including any documents incorporated by
reference therein.
“Trading
Day” means a day on which the NASDAQ Capital Market is open for
trading.
“Trading
Market” means the following markets or exchanges on which the Common Stock
is listed or quoted for trading on the date in question: the American Stock
Exchange, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ
Global
Select Market, the New York Stock Exchange or the OTC Bulletin
Board.
“Transaction
Documents” means this Agreement, the Warrants and any other documents or
agreements executed in connection with the purchase and sale of the Securities
to the Purchasers hereunder.
“Warrants”
means, collectively, the Share purchase warrants delivered to the Purchasers
at
the Closing in accordance with Section 2.2(a) hereof, which Warrants shall
be
exercisable immediately and have a term of exercise equal to 5 years, in
the
form of Exhibit A attached hereto.
“Warrant
Shares” means the Shares issuable upon exercise of the
Warrants.
ARTICLE
2.
PURCHASE
AND SALE
Section
2.1. Purchase and Sale; Procedures. At the Closing, upon
the terms and subject to the conditions set forth herein, the Company agrees
to
sell, and the Purchasers, severally and not jointly, agree to purchase, up
to an
aggregate of $4,376,000 of Shares and Warrants. The purchase and sale
of the Securities to each Purchaser hereunder is expressly conditioned on
(a)
the public announcement by the Company that it has entered into a definitive
agreement for the acquisition by the Company of Ester Neurosciences Ltd.,
an
Israeli company, and that it in-
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tends
to
call an extraordinary general meeting of shareholders to effect a reverse
stock
split for the purpose of bringing the Company into compliance with the
continuing listing requirements of the Nasdaq Capital Market (the
“Announcement”), and (b) such Purchaser’s satisfactory review of the
Prospectus Supplement. Prior to the satisfaction of each of such
conditions, this Agreement shall only constitute an indication of interest
by
the purchaser in the offered securities. The process for funding and
delivery of the Securities to each Purchaser shall be as follows:
(1) no
later than 4:00 PM Eastern Standard Time in the United States (“EST”) on
the date of this Agreement, the Purchaser shall deliver executed signature
pages
hereto, and the Company shall deliver legal opinions of Company Counsel,
substantially in the forms of Exhibits B and C attached hereto, in
each case to a mutually-agreed third party to be held pending release of
funds;
(2) prior
to the end of the calendar day on the date of this Agreement, the Company
shall
provide to each Purchaser a copy of the Prospectus Supplement;
(3) the
Company plans to make the Announcement prior to 7:30 AM EST on the business
day
following the date of this Agreement, whereupon the condition in clause (a)
above shall be satisfied;
(4) on
the business day following the date of this Agreement (assuming the condition
in
clause (a) above is satisfied as provided in the preceding clause (3)), (A)
at
7:30 AM EST, the condition in clause (b) above shall be satisfied, unless
prior
to that time the Company receives notice in writing from the Purchaser that
the
Purchaser is not satisfied with the Prospectus Supplement, such notice
to be faxed to: 011 3531 6699 028, Attention: ▇▇▇ ▇▇▇▇▇ or e-mailed to:
▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇; (B) simultaneously with the satisfaction of
the condition in clause (b) above as provided in the preceding clause (A),
the
signature pages and legal opinion referred to in clause (1) shall be released
to
the parties, and (C) no later than 5:00 PM EST, the Purchaser shall deliver
immediately available funds equal to its Subscription Amount by wire transfer
to
the following account:
|
Account
Name:
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Amarin
Corporation plc
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|
Account
No:
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▇▇▇▇▇▇▇▇
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Sort
Code:
|
30
- 93 - 05
|
|
Swift
Code:
|
▇▇▇▇▇▇▇▇▇▇▇
|
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IBAN
No:
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▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
|
(the
date
on which these events occur, the “Closing Date”); and
(5) on
the business day following the Closing Date (the “Securities Delivery
Date”), subject, as to each Purchaser, to receipt of such Purchaser’s
Subscription Amount by the Company, the Company shall commence issuing the
Securities by (a) causing the
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CREST
account of the nominee of the ADS Depositary to be credited with the Shares
issued and sold hereunder, (b) instructing the ADS Depositary to issue American
Depositary Receipts evidencing ADSs in the amount to be registered to a
nominated Depository Trust Company (“DTC”) account designated by the
Purchaser in writing, and (c) issuing to the Purchaser a Warrant registered
in
the name of such Purchaser to purchase up to a number of shares of Common
Stock
equal to 50% of such Purchaser’s Subscription Amount divided by 0.33, with an
exercise price equal to $0.48, subject to adjustment as provided therein
(such
Warrant certificate may be delivered within three Trading Days of the Closing
Date).
Section
2.2. Closing. The Closing shall occur at the offices of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇ ▇▇▇▇▇ or such
other location as the parties shall mutually agree.
Section
2.3. Closing Conditions.
(1) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(a) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Purchasers contained herein;
(b) all
obligations, covenants and agreements of each Purchaser required to be performed
at or prior to the Closing Date shall have been performed; and
(c) the
delivery by each Purchaser of the items to be delivered by it as set forth
in
Section 2.1 of this Agreement, excluding the delivery of the Shares, which
occurs on the Securities Delivery Date.
(2) The
respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(a) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Company contained herein;
(b) all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed;
(c) the
delivery by the Company of the items to be delivered by it as set forth in
Section 2.1 of this Agreement;
(d) there
shall have been no Material Adverse Effect with respect to the Company since
the
date hereof; and
(e) from
the date hereof to the Closing Date, trading in the Common Stock shall not
have
been suspended by the Commission or the Company’s principal Trading Market
(except for any suspension of trading of limited duration agreed to by the
Com-
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pany,
which suspension shall be terminated prior to the Closing), and, at any time
prior to the Closing Date, trading in securities generally as reported by
Bloomberg L.P. shall not have been suspended or limited, or minimum prices
shall
not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been
declared either by the United States or New York State authorities nor shall
there have occurred any material outbreak or escalation of hostilities or
other
national or international calamity of such magnitude in its effect on, or
any
material adverse change in, any financial market which, in each case, in
the
reasonable judgment of each Purchaser, makes it impracticable or inadvisable
to
purchase the Securities at the Closing.
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES
Section
3.1. Representations and Warranties of the Company. The
Company makes the following representations and warranties to each of the
Purchasers:
(a) Organization
and Qualification. All of the direct and indirect subsidiaries
(individually, a “Subsidiary”) of the Company are set forth on in the Company’s
annual report on Form 20-F for the fiscal year ended December 31,
2006. The Company owns, directly or indirectly, all of the capital
stock or other equity interests of each Subsidiary free and clear of any
“Liens”
(which for purposes of this Agreement shall mean a lien, charge, security
interest, encumbrance, right of first refusal, preemptive right or similar
restriction), 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 any Transaction Document,
(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 any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no
“Proceeding” (which for purposes of this Agreement shall mean any action, claim,
suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced
or
threatened) 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
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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.
(b) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by
each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated thereby 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 stockholders in connection therewith
other than in connection with the “Required Approvals” (as defined in subsection
3.1(d) below). Each Transaction Document has been (or upon delivery
will have been) duly executed by the Company and, when delivered in accordance
with the terms hereof and thereof, will constitute the valid and binding
obligation of the Company; each Transaction Document shall be 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.
(c) No
Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company, the issuance and sale of the Securities
and the consummation by the Company of the other transactions contemplated
hereby and thereby do not and will not (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or 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, credit
facility, debt or other instrument (evidencing a Company or Subsidiary debt
or
otherwise) or, to our knowledge, other understanding to which the Company
or any
Subsidiary is a party or by which any property or asset of the Company or
any
Subsidiary is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal
and
state securities laws and regulations), or by which any property or asset
of the
Company or a Subsidiary is bound or affected; except in the case of each
of
clauses (ii) and (iii), such as could not reasonably be expected to
result in a Material Adverse Effect.
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(d) Filings,
Consents and Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or
other
governmental authority or other “Person” (defined as an individual or
corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government
(or an
agency or subdivision thereof) or any Trading Market (as defined in subsection
3.1(e) below)) in connection with the execution, delivery and performance
by the
Company of the Transaction Documents, other than such filings as are required
to
be made under applicable securities laws of England and Wales, the
Republic of Ireland and U.S. Federal and state securities laws, the listing
of
the ADS on the Nasdaq Capital Market and the Common Stock on the AIM Market
of
the London Stock Exchange and the IEX Market of the Irish Stock Exchange
and any
notification filing related thereto, or under the rules and regulations of
the
Financial Industry Regulatory Authority (“FINRA”) (collectively, the
“Required Approvals”).
(e) Issuance
of the Securities; Registration. The Securities when issued and
paid for in accordance with the applicable Transaction Documents, will be
duly
authorized and validly issued, fully paid and nonassessable, free and clear
of
all Liens imposed by the Company other than restrictions on transfer provided
for in the Transaction Documents. The Company will reserve from its
duly authorized capital stock the maximum number of shares of Common Stock
issuable pursuant to the Transaction Documents. The issuance by the
Company of the Securities has been registered under the Securities Act and
all
of the Securities are freely transferable and tradable by the Purchasers
without
restriction (other than any restrictions arising solely from an act or omission
of a Purchaser). The Securities are being issued pursuant to the
Registration Statement and the issuance of the Securities has been registered
by
the Company under the Securities Act. The Registration Statement is
effective and available for the issuance of the Securities thereunder and
the
Company has not received any notice that the Commission has issued or intends
to
issue a stop-order with respect to the Registration Statement or that the
Commission otherwise has suspended or withdrawn the effectiveness of the
Registration Statement, either temporarily or permanently, or intends or
has
threatened in writing to do so. The “Plan of Distribution” section
under the Registration Statement permits the issuance and sale of the Securities
hereunder. Upon receipt of the Securities, the Purchasers will have
good title to such Securities and the Shares will be listed on the “Trading
Market” (which, for purposes of this Agreement shall mean the Nasdaq Capital
Market).
(f) Capitalization. The
capitalization of the Company is as set forth in the Prospectus
Supplement. The Company has not issued any capital stock since its
most recently filed report under the Exchange Act, other than pursuant to
the
exercise of employee stock options under the Company’s stock option plans, the
issuance of shares of Common Stock to employees pursuant to the Company’s
employee stock purchase plan and pursuant to the conversion or exercise of
securities exercisable, exchangeable or convertible into Common Stock
(“Common Stock Equivalents”), other than in connection with the
acquisition of Ester Neurosciences Limited (the “Ester Acquisition”), an
Israeli company, and any related fees, pursuant to the Stock Purchase Agreement
dated Decem-
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ber
5,
2007 among the Company and the other parties named therein. Except as
disclosed the SEC Reports, the Registration Statement, the Base Prospectus,
the
Prospectus Supplement or any Time of Sale Prospectus, no Person has any right
of
first refusal, preemptive right, right of participation, or any similar right
to
participate in the transactions contemplated by the Transaction
Documents. Except as a result of the purchase and sale of the
Securities or as described above or in the SEC Reports, the Registration
Statement, the Base Prospectus, the Prospectus Supplement or any Time of
Sale
Prospectus, and except the Neurostat Pharmaceuticals Inc. and Strategic
Pharmaceutical Solutions Warrants, there are no outstanding options, warrants,
script rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or giving any Person any right to subscribe
for
or acquire, any shares of Common Stock, or contracts, commitments, or agreements
by which the Company or any Subsidiary is or may become bound to issue
additional shares of Common Stock or Common Stock Equivalents. The
issuance and sale of the Securities will not result in a right of any holder
of
Company securities to adjust the exercise, conversion, exchange or reset
price
under such securities. All of the outstanding shares of capital stock of
the
Company are validly issued, fully paid and nonassessable, have been issued
in
compliance with all applicable securities laws, and none of such outstanding
shares was issued in violation of any preemptive rights or similar rights
to
subscribe for or purchase securities. There are no stockholders
agreements, voting agreements or other similar agreements with respect to
the
Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders.
(g) SEC
Reports; Financial Statements. The Company has complied in all
material respects with requirements to file all reports, schedules, forms,
statements and other documents required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “SEC Reports”) on a timely
basis or has received a valid extension of such time of filing and has filed
any
such SEC Reports prior to the expiration of any such extension. As of
their respective dates, the SEC Reports complied in all material respects
with
the requirements of the Securities Act and the Exchange Act and the rules
and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The financial statements of the
Company included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles (“GAAP”)
applied on a consistent basis during the periods involved (the financial
statements are prepared under U.K. GAAP and reconciled to U.S. GAAP), except
as
may be otherwise specified in such financial statements or the notes thereto
and
except that unaudited financial statements may not be rec-
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onciled
to U.S. GAAP or contain all footnotes required by GAAP, and fairly present
in
all material respects the financial position of the Company and its consolidated
subsidiaries as of and for the dates thereof and the results of operations
and
cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
(h) Material
Changes; Undisclosed Events, Liabilities or Developments. Since
the date of the latest audited financial statements included within the SEC
Reports, except as specifically disclosed in the SEC Reports, (i) there has
been
no event, occurrence or development that has had or that could reasonably
be
expected to result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent
with
past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or required to be disclosed in filings
made with the Commission, (iii) the Company has not altered its method of
accounting, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock and (v) the Company has not issued any equity securities to any officer,
director or “Affiliate” (defined as any Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with a Person, as such terms are used in and construed under
Rule
144 under the Securities Act), except pursuant to existing Company stock
option
plans and other than financing by the Company for cash with third parties
in
which such officers, directors or Affiliates may have participated on terms
no
more favorable to those given to such third parties. Except for the
issuance of the Securities contemplated by this Agreement, no event, liability
or development has occurred or exists with respect to the Company or its
Subsidiaries or their respective business, properties, operations or financial
condition, that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made that has
not
been publicly disclosed at least 1 Trading Day prior to the date that this
representation is made.
(i) Litigation. Except
as disclosed in the SEC Reports, the Registration Statement, the Base
Prospectus, the Prospectus Supplement or any Time of Sale Prospectus, there
is
no action, suit, inquiry, notice of violation, Proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting
the
Company, any Subsidiary or any of their respective properties before or by
any
court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “Action”)
which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Securities or (ii)
could, if there were an unfavorable decision, reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor any Subsidiary,
nor any director or officer thereof, is or has been the subject of any Action
involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. Except as disclosed in
the SEC Reports, the Registration Statement, the Base Prospectus, the Prospectus
Supplement or any Time of Sale Prospectus, there has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
investigation by
-11-
the
Commission involving the Company or any current or former director or officer
of
the Company regarding the business, operations, activities or securities
of the
Company. The Commission has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by the Company
or any Subsidiary under the Exchange Act or the Securities Act. The
Company and its Subsidiaries are in compliance with all U.S. federal, state,
local and foreign laws and regulations relating to employment and employment
practices, terms and conditions of employment and wages and hours, except
where
the failure to be in compliance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(j) Labor
Relations. Except as disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or
any
Time of Sale Prospectus, no material labor dispute exists or, to the knowledge
of the Company, is imminent with respect to any of the employees of the Company
which could reasonably be expected to have a Material Adverse
Effect.
(k) Compliance. Neither
the Company nor any Subsidiary (i) is in default under or in violation of
(and
no event has occurred that has not been waived that, with notice or lapse
of
time or both, would result in a default by the Company or any Subsidiary
under),
nor has the Company or any Subsidiary received notice of a claim that it
is in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or
by
which it or any of its properties is bound, (ii) is in violation of any order
of
any court, arbitrator or governmental body, or (iii) is or has been in violation
of any statute, rule or regulation of any governmental authority, including
without limitation all foreign, federal, state and local laws applicable
to its
business and all such laws that affect the environment, except in each case
as
could reasonably be expected to not have a Material Adverse Effect.
(l) Regulatory
Permits. Except as disclosed in the SEC Reports, the Registration
Statement, the Base Prospectus, the Prospectus Supplement or any Time of
Sale
Prospectus, the Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state, local
or
foreign regulatory authorities necessary to conduct their respective businesses
as described in the SEC Reports (“Material Permits”), except where the
failure to possess such permits could not reasonably be expected to have
in a
Material Adverse Effect, and neither the Company nor any Subsidiary has received
any notice of proceedings relating to the revocation or modification of any
Material Permit which revocation or modification could reasonably be expected
to
have a Material Adverse Effect.
(m) Title
to Assets. The Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them that is
material to the business of the Company and the Subsidiaries and good and
marketable title in all personal property owned by them that is material
to the
business of the Company and the Subsidiaries, in each case free and clear
of all
Liens, except for Liens as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made
of
such property by the Company and the Subsidiaries and Liens for the
pay-
-12-
ment
of
federal, state or other taxes, the payment of which is neither delinquent
nor
subject to penalties. Any real property and facilities held under
lease by the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases of which the Company and the Subsidiaries
are
in compliance, except where such invalidity, failure to subsist,
unenforceability or non-compliance would be deemed immaterial.
(n) Patents
and Trademarks. Except as disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or
any
Time of Sale Prospectus or as could not reasonably be expected to have a
Material Adverse Effect, (A) the Company and the Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other similar intellectual property rights necessary or material
for use in connection with their respective businesses as described in the
SEC
Reports (collectively, the “Intellectual Property Rights”); (B) neither
the Company nor any Subsidiary has received a written notice that the
Intellectual Property Rights used by the Company or any Subsidiary violates
or
infringes upon the rights of any Person; (C) to the knowledge of the Company,
all such Intellectual Property Rights are valid and there is no existing
infringement by another Person of any of the Intellectual Property Rights;
and
(D) the Company and its Subsidiaries have taken reasonable security measures
to
protect the secrecy, confidentiality and value of all of their intellectual
properties.
(o) Insurance. The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries
are
engaged, including, but not limited to, directors and officers insurance
coverage at least equal to the aggregate subscription amount under the
Transaction Documents. To the knowledge of the Company, such
insurance contracts and policies are accurate and complete. Neither
the Company nor any Subsidiary has any reason to believe that it will not
be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost.
(p) Transactions
With Affiliates and Employees. Except as set forth in the SEC
Reports, none of the officers or directors of the Company and, to the knowledge
of the Company, none of the employees of the Company is presently a party
to any
transaction with the Company or any Subsidiary (other than for services as
employees, officers and directors), including any contract, agreement or
other
arrangement providing for the furnishing of services to or by, providing
for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of
the
Company, any entity in which any officer, director, or any such employee
has a
substantial interest or is an officer, director, trustee or partner, other
than
(i) for payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company and (iii) for other
employee benefits, including stock option agreements under any stock option
plan
of the Company.
-13-
(q) ▇▇▇▇▇▇▇▇-▇▇▇▇▇. To
the Company’s knowledge, after due inquiry, the Company is in material
compliance with all provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 which are
applicable to it as of the date hereof and of the closing date of the
transactions contemplated herein.
(r) Certain
Fees. Except for fees payable to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLC, J & E Davy and ProSeed Capital Holdings CVA pursuant to
separate agreements therewith, no brokerage or finder’s fees or commissions are
or will be payable by the Company to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by the Transaction
Documents. The Purchasers shall have no obligation with respect to
any fees or with respect to any claims made by or on behalf of other Persons
for
fees of a type contemplated in this Section that may be due in connection
with
the transactions contemplated by the Transaction Documents.
(s) Trading
Market Rules. The issuance and sale of the Securities hereunder
does not contravene the rules and regulations of the Trading
Market.
(t) Investment
Company. The Company is not, and is not an Affiliate of, and immediately
after receipt of payment for the Securities, will not be or be an Affiliate
of,
an “investment company” within the meaning of the Investment Company Act of
1940, as amended. The Company shall conduct its business in a manner
so that it will not become subject to the Investment Company Act.
(u) Registration
Rights. Except as has been disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or
any
Time of Sale Prospectus, except in connection with the Ester Acquisition
and
related fees, and except the Neurostat Pharmaceuticals Inc. and Strategic
Pharmaceutical Solutions Warrants, no Person has any right to cause the Company
to effect the registration under the Securities Act of any securities of
the
Company.
(v) Listing
and Maintenance Requirements. The Company’s Common Stock is
registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge is likely
to
have the effect of, terminating the registration of the Common Stock under
the
Exchange Act nor has the Company received any notification that the Commission
is contemplating terminating such registration. Except as has been
disclosed in the SEC Reports, the Registration Statement, the Base Prospectus,
the Prospectus Supplement or any Time of Sale Prospectus, the Company has
not,
in the 12 months preceding the date hereof, received notice from any Trading
Market on which the Common Stock is or has been listed or quoted to the effect
that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market.
(w) Application
of Takeover Protections. The Company and its Board of Directors
have taken all necessary action, if any, in order to render inapplicable
any
control share acquisition, business combination, poison pill (including any
distribution under a
-14-
rights
agreement) or other similar anti-takeover provision under the Company’s
Certificate of Incorporation (or similar charter documents) or the laws of
its
state of incorporation that is or could become applicable to the Purchasers
as a
result of the Purchasers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including without
limitation as a result of the Company’s issuance of the Securities and the
Purchasers’ ownership of the Securities.
(x) Solvency. As
described in the Company’s press release (dated November 30) setting out the
Company’s third quarter financial results, at September 30, 2007, the Company
had cash of $20.7 million. Based on current business activities, the
Company forecasts having sufficient cash to fund the group’s operating
activities into September 2008. Based on the financial condition of
the Company as of the Closing Date after giving effect to the receipt by
the
Company of the proceeds from the sale of the Securities hereunder, (i) the
Company’s fair saleable value of its assets exceeds the amount that will be
required to be paid on or in respect of the Company’s existing debts and other
liabilities (including known contingent liabilities but excluding contingent
liabilities relating to completed acquisitions including the acquisition
of
Laxdale Limited, Ester Neurosciences Limited, the rights to an oral formulation
of apomorphine and the rights to a nanocrystal nasal formulation of lorazepam)
as they mature and (ii) the current cash flow of the Company, together with
the
proceeds the Company would receive, were it to liquidate all of its assets,
after taking into account all anticipated uses of the cash, would be sufficient
to pay all amounts on or in respect of its debt when such amounts are required
to be paid. The Company does not intend to incur debts beyond its
ability to pay such debts as they mature (taking into account the timing
and
amounts of cash to be payable on or in respect of its debt). The
Company has no knowledge of any facts or circumstances which lead it to believe
that it will file for reorganization or liquidation under the bankruptcy
or
reorganization laws of any jurisdiction within one year from the Closing
Date. The SEC Reports set forth as of the dates thereof all
outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments. For the
purposes of this Agreement, “Indebtedness” shall mean (a) any liabilities for
borrowed money or amounts owed in excess of $50,000 (other than trade accounts
payable incurred in the ordinary course of business), (b) all guaranties,
endorsements and other contingent obligations in respect of Indebtedness
of
others, whether or not the same are or should be reflected in the Company’s
balance sheet (or the notes thereto), except guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions
in the
ordinary course of business; and (c) the present value of any lease payments
in
excess of $50,000 due under leases required to be capitalized in accordance
with
GAAP. Neither the Company nor any Subsidiary is in default with
respect to any Indebtedness.
(y) Tax
Status. Except for matters that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect,
the
Company and each Subsidiary has filed all material, applicable income and
franchise tax returns and has paid or accrued all taxes shown as due thereon
(and other than those being contested in good faith and for which adequate
reserves have been provided), and the Company has
-15-
no
knowledge of a tax deficiency which has been asserted or threatened against
the
Company or any Subsidiary.
(z) Foreign
Corrupt Practices. Neither the Company, nor to the knowledge of
the Company, any agent or other person acting on behalf of the Company, has
(i)
directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully
any
contribution made by the Company (or made by any person acting on its behalf
of
which the Company is aware) which is in violation of law, or (iv)
violated in any material respect any provision of the Foreign Corrupt Practices
Act of 1977, as amended.
(aa) Accountants. The
Company’s accountants are PricewaterhouseCoopers LLP. To the
knowledge of the Company, such accountants, who the Company expects will
express
their opinion with respect to the financial statements to be included in
the
Company’s next Annual Report on Form 20-F, are a registered public accounting
firm as required by the Securities Act.
(bb) Regulation
M Compliance. Except as has been disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or
any
Time of Sale Prospectus, the Company has not, and to its knowledge no one
acting
on its behalf has, in connection with the transactions contemplated by each
of
the Transaction Documents, (i) taken, directly or indirectly, any action
designed to cause or to result in the stabilization or manipulation of the
price
of any security of the Company to facilitate the sale or resale of any of
the
Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to
pay
to any person any compensation for soliciting another to purchase any other
securities of the Company.
(cc) Approvals. The
issuance and listing on the NASDAQ Capital Market of the Shares requires
no
further approvals, including but not limited to, the approval of
shareholders.
(dd) FINRA
Affiliations. There are no affiliations with any Financial
Industry Regulatory Authority (“FINRA”) member firm among the Company’s
officers, directors or, to the knowledge of the Company, any five percent
(5%)
or greater stockholder of the Company.
(ee) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company
acknowledges and agrees that each of the Purchasers is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated thereby. The Company further
acknowledges that no Purchaser is acting as a financial advisor or fiduciary
of
the Company (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated thereby and any advice given
by any
Purchaser or any of their respective representatives
-16-
or
agents
in connection with the Transaction Documents and the transactions contemplated
thereby is merely incidental to the Purchasers’ purchase of the
Securities. The Company further represents to each Purchaser that the
Company’s decision to enter into this Agreement and the other Transaction
Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its
representatives.
(ff) Acknowledgement
Regarding Purchaser’s Trading Activity. Anything in this
Agreement or elsewhere herein to the contrary notwithstanding (except for
Sections 3.2(e) and 4.13 hereof), it is understood and acknowledged by the
Company (i) that none of the Purchasers have been asked by the Company to
agree,
nor has any Purchaser agreed, to desist from purchasing or selling, long
and/or
short, securities of the Company, or “derivative” securities based on securities
issued by the Company or to hold the Securities for any specified term; (ii)
that past or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement
transactions, may negatively impact the market price of the Company’s
publicly-traded securities; (iii) that any Purchaser, and counter-parties
in
“derivative” transactions to which any such Purchaser is a party, directly or
indirectly, presently may have a “short” position in the Common Stock, (iv) that
each Purchaser shall not be deemed to have any affiliation with or control
over
any arm’s length counter-party in any “derivative” transaction, (v) that one or
more Purchasers may engage in hedging activities at various times during
the
period that the Securities are outstanding, including, without limitation,
during the periods that the value of the Warrant Shares deliverable with
respect
to Securities are being determined, (vi) that such hedging activities (if
any)
could reduce the value of the existing stockholders' equity interests in
the
Company at and after the time that the hedging activities are being conducted,
and (vii) that such aforementioned hedging activities do not constitute a
breach
of any of the Transaction Documents.
Section
3.2. Representations and Warranties of the
Purchasers. Each Purchaser, for itself and for no other
Purchaser, hereby represents and warrants as of the date hereof and as of
the
Closing Date to the Company as follows:
(a) Organization;
Authority. Such Purchaser is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate or partnership power and authority
to
enter into and to consummate the transactions contemplated by this Agreement
and
otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of this Agreement and performance by such Purchaser of the
transactions contemplated by this Agreement have been duly authorized by
all
necessary corporate or similar action on the part of such
Purchaser. Each Transaction Document to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii)
as
-17-
limited
by laws relating to the availability of specific performance, injunctive
relief
or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b) Own
Account. Such Purchaser is acquiring the Securities as principal
for its own account and not with a view to or for distributing or reselling
such
Securities or any part thereof in violation of the Securities Act or any
applicable state securities law, has no present intention of distributing
any of
such Securities in violation of the Securities Act or any applicable state
securities law and has no direct or indirect arrangement or understandings
with
any other persons to distribute or regarding the distribution of such Securities
(this representation and warranty not limiting such Purchaser’s right to sell
the Securities immediately pursuant to the Registration Statement or otherwise
in compliance with applicable federal and state securities laws) in violation
of
the Securities Act or any applicable state securities law. Such
Purchaser is acquiring the Securities hereunder in the ordinary course of
its
business.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it
was, and at the date hereof it is, and on each date on which it exercises
any
Warrants, it will be either: (i) an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii)
a
“qualified institutional buyer” as defined in Rule 144A(a) under the Securities
Act. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with
its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits
and
risks of the prospective investment in the Securities, and has so evaluated
the
merits and risks of such investment. Such Purchaser is able to bear
the economic risk of an investment in the Securities and, at the present
time,
is able to afford a complete loss of such investment.
(e) Short
Sales and Confidentiality Prior to the Date Hereof. Other than
consummating the transactions contemplated hereunder, such Purchaser has
not,
nor has any Person acting on behalf of or pursuant to any understanding with
such Purchaser, directly or indirectly executed any purchases or sales,
including Short Sales, of the securities of the Company during the period
commencing from the time that such Purchaser first received a term sheet
(written or oral) from the Company or any other Person representing the Company
setting forth the material terms of the transactions contemplated hereunder
(“Discussion Time”). Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser's assets and
the
portfolio managers have no direct knowledge of the investment decisions made
by
the portfolio managers managing other portions of such Purchaser's assets,
the
representation set forth above shall only apply with respect to the portion
of
assets managed by the portfolio manager that made the investment decision
to
purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement, such Purchaser has maintained the
confidentiality
-18-
of
all
disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).
ARTICLE
4.
OTHER
AGREEMENTS OF THE PARTIES
Section
4.1. Warrant Shares. If all or any portion of a Warrant
is exercised at a time when there is an effective registration statement
to
cover the issuance or resale of the Warrant Shares, the Warrant Shares issued
pursuant to any such exercise shall be issued free of all legends. If
at any time following the date hereof the Registration Statement (or any
subsequent registration statement registering the Warrant Shares) is not
effective or is not otherwise available for the sale or resale of the Warrant
Shares, the Company shall immediately notify the holders of the Warrants
in
writing that such registration statement is not then effective and thereafter
shall promptly notify such holders when the registration statement is effective
again and available for the sale or resale of the Warrant Shares. The
Company shall use best efforts to keep a registration statement (including
the
Registration Statement) registering the issuance or resale of the Warrant
Shares
effective during the term of the Warrants.
Section
4.2. Furnishing of Information. Until the earliest of
the time that (i) no Purchaser owns Securities (based solely on a review
of the
transfer agent’s list of registered holders of Common Stock, a list of
non-objecting beneficial holders and the Company’s registry for the Warrants) or
(ii) the Warrants have expired, the Company covenants to timely file (or
obtain
extensions in respect thereof and file within the applicable grace period)
all
reports required to be filed by the Company after the date hereof pursuant
to
the Exchange Act even if the Company is not then subject to the reporting
requirements of the Exchange Act. As long as any Purchaser owns
Securities, if the Company is not required to file reports pursuant to the
Exchange Act, it will prepare and furnish to the Purchasers and make publicly
available in accordance with Rule 144(c) such information as is required
for the
Purchasers to sell the Securities under Rule 144. The Company further
covenants that, if at any time following the date hereof the Registration
Statement (or any subsequent registration statement registering the Warrant
Shares) is not effective or is not otherwise available for the sale or resale
of
the Warrant Shares, it will take such further action as any Purchaser may
reasonably request, to the extent required from time to time, to enable such
Purchaser to sell such Warrant Shares without registration under the Securities
Act within the requirements of the exemption provided by Rule 144.
Section
4.3. Integration. The Company shall not sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in Section 2 of the Securities Act) that would be integrated
with
the offer or sale of the Securities for purposes of the rules and regulations
of
any Trading Market such that it would require shareholder approval prior
to the
closing of such other transaction unless shareholder approval is obtained
before
the closing of such subsequent transaction.
Section
4.4. Securities Laws Disclosure; Publicity. The Company
shall, by 8:30 a.m. (New York City time) on the Trading Day immediately
following the Closing Date, issue a Current Report on Form 6-K, disclosing
the
material terms of the purchase and sale of the
-19-
Securities
pursuant to this Agreement, and filing the Transaction Documents as exhibits
thereto. Notwithstanding the foregoing, the Company shall not
publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any filing with the Commission or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (i) as
required by federal securities law in connection with the filing of final
Transaction Documents (including signature pages thereto) with the Commission
and (ii) to the extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Purchasers with
prior
notice of such disclosure permitted under this clause (ii).
Section
4.5. Shareholder Rights Plan. No claim will be made or
enforced by the Company or, with the consent of the Company, any other Person,
that any Purchaser is an “Acquiring Person” under any control share acquisition,
business combination, poison pill (including any distribution under a rights
agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Purchaser could be deemed to trigger
the
provisions of any such plan or arrangement, by virtue of receiving Securities
under the Transaction Documents or under any other agreement between the
Company
and the Purchasers.
Section
4.6. Non-Public Information. Except with respect to the
material terms and conditions of the transactions contemplated by the
Transaction Documents, the Company covenants and agrees that neither it nor
any
other Person acting on its behalf will provide any Purchaser or its agents
or
counsel with any information that the Company believes constitutes material
non-public information, unless prior thereto such Purchaser shall have executed
a written agreement regarding the confidentiality and use of such
information. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in
securities of the Company.
Section
4.7. Use of Proceeds. Except as set forth on Schedule
4.7 attached hereto, the Company shall use the net proceeds from the sale
of the
Securities hereunder for working capital purposes and shall not use such
proceeds for (a) the satisfaction of any portion of the Company’s debt (other
than payment of trade payables in the ordinary course of the Company’s business
and prior practices), (b) the redemption of any Common Stock or Common Stock
Equivalents or (c) the settlement of any outstanding litigation.
Section
4.8. Indemnification of Purchasers. Subject to the
provisions of this Section 4.8, to the extent permitted by law, the Company
will
indemnify and hold each Purchaser and its directors, officers, shareholders,
members, partners, agents and employees (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding
a
lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of
the
Exchange Act), and the directors, officers, shareholders, members, partners,
agents or employees (and any other Persons with a functionally equivalent
role
of a Person holding such titles notwithstanding a lack of such title or any
other title)or employees of such controlling persons (each, a “Purchaser
Party”) harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs and reasonable attorneys’ fees and costs of
investigation that any such Purchaser Party may suffer or incur as a result
of
or relating to (a) any breach of any of the representations, warranties,
covenants or agreements made by the Com-
-20-
pany
in
this Agreement or in the other Transaction Documents or (b) any action
instituted against a Purchaser in any capacity, or any of them or their
respective Affiliates, by any stockholder of the Company who is not an Affiliate
of such Purchaser, with respect to any of the transactions contemplated by
the
Transaction Documents (unless such action is based upon a breach of such
Purchaser’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser may have with
any
such stockholder or any violations by the Purchaser of state or federal
securities laws or any conduct by such Purchaser which constitutes fraud,
gross
negligence, willful misconduct or malfeasance). If any action shall
be brought against any Purchaser Party in respect of which indemnity may
be
sought pursuant to this Agreement, such Purchaser Party shall promptly notify
the Company in writing, and the Company shall have the right to assume the
defense thereof with counsel of its own choosing reasonably acceptable to
the
Purchaser Party. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but
the fees and expenses of such counsel shall be at the expense of such Purchaser
Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or
(iii)
in such action there is, in the reasonable opinion of such separate counsel,
a
material conflict on any material issue between the position of the Company
and
the position of such Purchaser Party, in which case the Company shall be
responsible for the reasonable fees and expenses of no more than one such
separate counsel. The Company will not be liable to any Purchaser
Party under this Agreement (i) for any settlement by a Purchaser Party effected
without the Company’s prior written consent, which shall not be unreasonably
withheld or delayed; or (ii) to the extent, but only to the extent that a
loss,
claim, damage or liability is attributable to any Purchaser Party’s breach of
any of the representations, warranties, covenants or agreements made by such
Purchaser Party in this Agreement or in the other Transaction
Documents.
Section
4.9. Reservation of Common Stock. As of the date hereof,
the Company has reserved and the Company shall continue to reserve and keep
available at all times, free of preemptive rights, a sufficient number of
shares
of Common Stock for the purpose of enabling the Company to issue Shares pursuant
to this Agreement and Warrant Shares pursuant to any exercise of the
Warrants.
Section
4.10. Listing of Common Stock. The Company hereby agrees
to use all commercially reasonable efforts to maintain the listing of the
Common
Stock on a Trading Market, and as soon as reasonably practicable following
the
Closing to list all of the Shares and Warrant Shares on such Trading
Market. The Company further agrees, if the Company applies to have
the Common Stock traded on any other Trading Market, it will include in such
application all of the Shares and Warrant Shares, and will take such other
action as is necessary to cause all of the Shares and Warrant Shares to be
listed on such other Trading Market as promptly as possible. The
Company will use all commercially reasonable efforts to continue the listing
and
trading of its Common Stock on a Trading Market.
Section
4.11. Equal Treatment of Purchasers. No consideration
shall be offered or paid to any Person to amend or consent to a waiver or
modification of any provision of any of the Transaction Documents unless
the
same consideration is also offered to all of the parties to the Transaction
Documents. For clarification purposes, this provision constitutes a
separate right
-21-
granted
to each Purchaser by the Company and negotiated separately by each Purchaser,
and is intended for the Company to treat the Purchasers as a class and shall
not
in any way be construed as the Purchasers acting in concert or as a group
with
respect to the purchase, disposition or voting of Securities or
otherwise.
Section
4.12. Subsequent Equity Sales.
(1) From
the date hereof until 45 days after the Closing Date, neither the Company
nor
any Subsidiary shall issue shares of Common Stock or Common Stock Equivalents;
provided, however, the 45 day period set forth in this Section
4.12 shall be extended for the number of Trading Days during such period
in
which (i) trading in the Common Stock is suspended by any Trading Market,
or
(ii) the Registration Statement is not effective or the prospectus included
in
the Registration Statement may not be used by the Purchasers for the resale
of
the Shares and Warrant Shares.
(2) From
the date hereof until such time as no Purchaser holds any of the Securities
(based solely on a review of the transfer agent’s list of registered holders of
Common Stock, a list of non-objecting beneficial holders and the Company’s
registry for the Warrants), the Company shall be prohibited from effecting
or
entering into an agreement to effect any Subsequent Financing involving a
Variable Rate Transaction. “Variable Rate Transaction” means a
transaction in which the Company issues or sells any debt or equity securities
that are convertible into, exchangeable or exercisable for, or include the
right
to receive additional shares of Common Stock at a conversion, exercise or
exchange rate or other price that is based upon and/or varies with the trading
prices of or quotations for the shares of Common Stock at any time after
the
initial issuance of such debt or equity securities. The Purchasers
shall be entitled to obtain injunctive relief against the Company to preclude
any such issuance, which remedy shall be in addition to any right to collect
damages.
(3) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt
Issuance, except that no Variable Rate Transaction shall be an Exempt
Issuance.
Section
4.13. Short Sales and Confidentiality After the Date
Hereof. Each Purchaser, severally and not jointly with the other
Purchasers, covenants that neither it nor any Affiliate acting on its behalf
or
pursuant to any understanding with it will execute any Short Sales during
the
period commencing at the Discussion Time and ending at the time that the
conditions in Sections 2.1(a) and 2.1(b) are deemed satisfied as provided
in
Sections 2.1(3) and 2.1(4) (the “Time of Satisfaction”). Each
Purchaser, severally and not jointly with the other Purchasers, covenants
that
until such Time of Satisfaction, such Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the
information included in the Disclosure Schedules. Notwithstanding the
foregoing, no Purchaser makes any representation, warranty or covenant hereby
that it will not engage in Short Sales in the securities of the Company after
the Time of Satisfaction. Notwithstanding the foregoing, in the case of a
Purchaser that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets and the portfolio
managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s assets, the
covenant set forth above shall only apply with respect to the portion of
assets
managed by the
-22-
portfolio
manager that made the investment decision to purchase the Securities covered
by
this Agreement.
Section
4.14. Delivery of Securities After Closing. The Company
shall deliver, or cause to be delivered, the respective Securities purchased
by
each Purchaser to such Purchaser within 3 Trading Days of the Closing
Date.
ARTICLE
5.
MISCELLANEOUS
Section
5.1. Termination. This Agreement may be terminated by
any Purchaser, as to such Purchaser’s obligations hereunder only and without any
effect whatsoever on the obligations between the Company and the other
Purchasers, by written notice to the other parties, if the Closing has not
been
consummated on or before December 15, 2007; provided, however,
that no such termination will affect the right of any party to ▇▇▇ for any
breach by the other party (or parties).
Section
5.2. Fees and Expenses. Except as expressly set forth in
the Transaction Documents to the contrary, each party shall pay the fees
and
expenses of its advisers, counsel, accountants and other experts, if any,
and
all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this
Agreement. The Per Unit Purchase Price includes costs of issuance,
such as all Transfer Agent fees, stamp taxes and other taxes and duties levied
in connection with the delivery of any Securities to the
Purchasers.
Section
5.3. Entire Agreement. The Transaction Documents,
together with the exhibits and schedules thereto, the Prospectus and the
Prospectus Supplement, contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the
parties
acknowledge have been merged into such documents, exhibits and
schedules.
Section
5.4. Notices. Any and all notices or other
communications or deliveries required or permitted to be provided hereunder
shall be in writing and shall be deemed given and effective on the earliest
of
(a) the date of transmission, if such notice or communication is delivered
via
facsimile at the facsimile number set forth on the signature pages attached
hereto prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the
next
Trading Day after the date of transmission, if such notice or communication
is
delivered via facsimile at the facsimile number set forth on the signature
pages
attached hereto on a day that is not a Trading Day or later than 5:30 p.m.
(New
York City time) on any Trading Day, (c) the 2nd Trading
Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice
is
required to be given. The address for such notices and communications
shall be as set forth on the signature pages attached hereto.
Section
5.5. Amendments; Waivers. No provision of this Agreement
may be waived or amended except in a written instrument signed, in the case
of
an amendment, by the Company and the Purchasers of at least 85% of the Shares
still held by the Purchasers or, in the
-23-
case
of a
waiver, by the party against whom enforcement of any such waived provision
is
sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of
any
other provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair
the
exercise of any such right.
Section
5.6. Headings. The headings herein are for convenience
only, do not constitute a part of this Agreement and shall not be deemed
to
limit or affect any of the provisions hereof.
Section
5.7. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors
and
permitted assigns. The Company may not assign this Agreement or any
rights or obligations hereunder without the prior written consent of each
Purchaser (other than by merger). Any Purchaser may assign any or all
of its rights under this Agreement to any Person to whom such Purchaser assigns
or transfers any Securities, provided such transferee agrees in writing to
be
bound, with respect to the transferred Securities, by the provisions of the
Transaction Documents that apply to the “Purchasers.”
Section
5.8. No Third-Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in
Section 4.8.
Section
5.9. Governing Law. All questions concerning the
construction, validity, enforcement and interpretation of the Transaction
Documents shall be governed by and construed and enforced in accordance with
the
internal laws of the State of New York, without regard to the principles
of
conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents
(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 or discussed herein (including with respect
to
the enforcement of any of the Transaction Documents), 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,
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. If
either party shall commence an action or proceeding to enforce any provisions
of
the Transaction Documents, then the prevailing party in such action or
proceeding shall be ▇▇▇▇-
-24-
bursed
by
the other party for its reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such action
or
proceeding.
Section
5.10. Survival. The representations and warranties
contained herein shall survive the Closing and the delivery of the Shares
and
Warrant Shares.
Section
5.11. Execution. This Agreement may be executed in two
or more counterparts, all of which when taken together shall be considered
one
and the same agreement and shall become effective when counterparts have
been
signed by each party and delivered to the other party, it being understood
that
both parties need not sign the same counterpart. 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
5.12. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties
hereto shall use their commercially reasonable efforts to find and employ
an
alternative means to achieve the same or substantially the same result as
that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would
have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void
or
unenforceable.
Section
5.13. Rescission and Withdrawal Right. Notwithstanding
anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser
exercises a right, election, demand or option under a Transaction Document
and
the Company does not timely perform its related obligations within the periods
therein provided, then such Purchaser may rescind or withdraw, in its sole
discretion from time to time upon written notice to the Company, any relevant
notice, demand or election in whole or in part without prejudice to its future
actions and rights; provided, however, in the case of a rescission of an
exercise of a Warrant, the Purchaser shall be required to return any shares
of
Common Stock delivered in connection with any such rescinded exercise
notice.
Section
5.14. Replacement of Securities. If any certificate or
instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution
for
and upon cancellation thereof (in the case of mutilation), or in lieu of
and
substitution therefor, a new certificate or instrument, but only upon receipt
of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction. The applicant for a new certificate or instrument under
such circumstances shall also pay any reasonable third-party costs (including
customary indemnity) associated with the issuance of such replacement
Securities.
-25-
Section
5.15. Remedies. In addition to being entitled to
exercise all rights provided herein or granted by law, including recovery
of
damages, each of the Purchasers and the Company will be entitled to specific
performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations contained in the Transaction Documents
and
hereby agrees to waive and not to assert in any action for specific performance
of any such obligation the defense that a remedy at law would be
adequate.
Section
5.16. Payment Set Aside. To the extent that the Company
makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and
such
payment or payments or the proceeds of such enforcement or exercise or any
part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside, recovered from, disgorged by or are required to be refunded, repaid
or otherwise restored to the Company, a trustee, receiver or any other person
under any law (including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the extent
of any
such restoration the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not
occurred.
Section
5.17. Independent Nature of Purchasers’ Obligations and
Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser,
and no Purchaser shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any Transaction
Document. Nothing contained herein or in any other Transaction
Document, 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 with respect to such obligations
or the
transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation, the rights arising out of this Agreement or
out of
the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate
legal counsel in their review and negotiation of the Transaction
Documents. The Company has elected to provide all Purchasers with the
same terms and Transaction Documents for the convenience of the Company and
not
because it was required or requested to do so by the Purchasers.
Section
5.18. Liquidated Damages. The Company’s obligations to
pay any partial liquidated damages or other amounts owing under the Transaction
Documents is a continuing obligation of the Company and shall not terminate
until all unpaid partial liquidated damages and other amounts have been paid
notwithstanding the fact that the instrument or security pursuant to which
such
partial liquidated damages or other amounts are due and payable shall have
been
canceled.
Section
5.19. Saturdays, Sundays, Holidays, etc. If the last or
appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a
-26-
Business
Day, then such action may be taken or such right may be exercised on the
next
succeeding Business Day.
Section
5.20. Construction. The parties agree that each of them and/or
their respective counsel has reviewed and had an opportunity to revise the
Transaction Documents and, therefore, the normal rule of construction to
the
effect that any ambiguities are to be resolved against the drafting party
shall
not be employed in the interpretation of the Transaction Documents or any
amendments hereto.
Section
5.21. Waiver of Jury Trial. 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 absolutely, unconditionally, irrevocably and expressly
waives forever trial by jury.
(Signature
Pages Follow)
-27-
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories
as of
the date first indicated above.
|
AMARIN
CORPORATION PLC
|
Address
for Notice:
|
|
By: __________________________________
Name:
Title:
|
Fax:
|
|
With
a copy to (which shall not constitute notice):
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO AMRN 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):
Subscription
Amount: $_________________
Shares: _________________
Warrant
Shares: __________________
EIN
Number: [PROVIDE THIS UNDER SEPARATE
COVER]
Name
of
Purchaser:
DTC
Account Details:
Name
of
DTC Participant:
__________________________________
(your
broker or custodian bank)
Address of DTC Participant:
___________________________________
(address
of your broker or custodian bank)
___________________________________
___________________________________
DTC
Participant Account Number:
___________________________________
Client
Account (“Account Holder”) number
at
DTC
Participant:
___________________________________
Address
of Account Holder:
___________________________________
___________________________________
___________________________________