WITHOUT PREJUDICE & SUBJECT TO CONTRACT UNTIL EXECUTED BY BOTH PARTIES DATED 16th OCTOBER 2009
Exhibit 4.95
WITHOUT PREJUDICE &
SUBJECT TO CONTRACT UNTIL EXECUTED BY BOTH PARTIES
DATED
16th
OCTOBER 2009
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(1)
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AMARIN
CORPORATION plc
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(2)
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▇▇▇▇
▇▇▇▇▇
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_____________________________
_____________________________
THIS AGREEMENT is made on the
16th of
October 2009 (the “Signing
Date”).
BETWEEN:
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(1)
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AMARIN CORPORATION plc
whose registered office is at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
(the "Company");
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(2)
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▇▇▇▇ ▇▇▇▇▇ (the "Employee")
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WHEREAS:
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(A)
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The
Company anticipates consummating an equity financing pursuant to a
Securities Purchase Agreement with various investors (such consummation,
the “Closing”).
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(B)
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Following
consultation with the Employee, the parties agree that the Employee's
employment with the Company will terminate by reason of redundancy on the
Termination Date.
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(B)
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Without
any admission of liability on the part of the Company, the Company and the
Employee have agreed the terms set out in this Agreement in settlement of
the Claims and all and any other claims which the Employee has or may have
against the Company or any Associated Companies or against any employees
or officers of any such company arising out of or in connection with his
employment or termination of employment with the Company or any Associated
Company.
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(C)
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The
Company is entering into this Agreement on its own behalf and as agent for
any Associated Company.
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DEFINITIONS
In this
Agreement the following words and expressions shall have the following
meanings:
"Act" means the Irish
Companies Acts;
"Associated Company"
means:
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(a)
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any
Holding Company of the Company; or
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(b)
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any
direct or indirect Subsidiary of the Company or any such Holding
Company;
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"the Claims" means those
allegations and/or potential claims referred to in Clauses 4.1 and 4.3
below;
“the Effective Date” means the
date on which the Closing occurs;
"Subsidiary" and "Holding Company" have the
respective meanings given to them by the Act and any reference to the Subsidiary
or Subsidiaries or Holding Company is (unless inconsistent with the context)
intended to be a reference to the Subsidiary or Subsidiaries or Holding Company
respectively of the company in question at the relevant time;
"the Termination Date" means
the 31st of October 2009 if, but only if, the Effective Date
occurs.
"the Warrant Issuance" means
the issue to the Employee of 247,050 warrants to purchase shares in the Company
on the terms set out in the Warrant Agreement included in Appendix
1
THE PARTIES have agreed as
follows:
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1.
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CONFIDENTIALITY
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1.1
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The
Employee and the Company agree to keep the terms of this Agreement
confidential, save (i) where disclosure is required to the Revenue
Commissioners, (ii) where required by law or as a result of any
regulatory filing or disclosure requirement (to include, without
limitation, all applicable SEC filings), and (ii) where necessary or
appropriate to give effect to this Agreement,
to:
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(a)
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the
Employee's legal or professional advisers or family, provided that they
agree to keep the information confidential;
or
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(b)
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the
Company's legal or professional
advisers.
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1.2
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The
Employee undertakes that the Employee shall not (except where authorised
by the Company or obliged by law) reveal to any person, company, employer
or organisation or use for his or her own or another person’s or
organisation’s benefit any confidential information concerning the
dealings, affairs, business, strategies, computer systems, plans,
forecasts, accounts, or finances of the Company or any Associated Company
or its or their customers.
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2.
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EFFECTIVENESS
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2.1
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The
provisions of Clauses 1, 2 and 10-12 of this Agreement will be effective
from the Signing Date and shall survive indefinitely whether or not the
Effective Date shall occur.
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2.2
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Clauses
3-9 of this Agreement shall not become effective until, but shall become
automatically effective upon, the Effective Date. If the Closing (and thus
the Effective Date) does not occur by October 31, 2009, then such clauses
shall become void and no party hereto shall have any liability to any
other party hereto, or to any Associated Company of the Company, with
respect to such clauses.
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3.
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WARRANT
ISSUANCE
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3.1
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The
Company will, without any admission of liability whatsoever on behalf of
itself and its Associated Companies, issue to the Employee the Warrant
Issuance on the Closing or no later than the Termination
Date.
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3.2 The
Employee:
(i)
represents that he is an accredited investor having such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of receiving the warrants and has received and reviewed a draft
of the Company's draft form 20-F for the year ended December 31, 2008; and (ii)
acknowledges that the warrants are subject to certain transfer
restrictions.
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3.3
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The
Company hereby grants to the Employee registration rights with respect to
the resale of Ordinary Shares issued upon exercise of the Warrants granted
pursuant to this compromise agreement, such registration rights having the
same terms as those contained in Article 6 of October 12, 2009 Securities
Purchase Agreement (the "SPA") as if such Warrants had been purchased
thereunder. Notwithstanding the foregoing, unless the SPA is amended
to permit otherwise, (i) the Employee shall not be entitled to exercise
piggy back rights with regard to the registration statement contemplated
by the SPA and (ii) the Employee's rights to piggy back on any other
registration statements shall be subordinate to the piggy back rights of
the purchasers under the SPA. To the extent permitted, the Company
covenants to register such Ordinary Shares on Form S-8 as promptly as
practicable following the closing of the transactions contemplated by the
SPA.
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4.
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PAYMENTS
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4.1
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The
Company will provide such notice of termination of employment to the
Employee (contractual or statutory, whichever is the greater) as is
applicable on October 31st 2009. The
Employee will be paid in lieu of such notice for all unexpired notice on
the Termination Date. This will amount to a termination payment
of €375,000. All payments are subject to tax and other deductions as
required by law. This Agreement shall be a full and final settlement of
the Claims and all other claims which the Employee has or may have
(whether now or at any time in the future) against the Company or any
Associated Company arising out of his employment or the termination of his
employment. The Employee's employment will terminate on the Termination
Date and the Company will issue and send a form P45 to the Employee on the
Termination Date.
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4.2
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The
Employee acknowledges and accepts that the benefits in this
Agreement include, if applicable, any statutory redundancy
payment.
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4.3
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Where
applicable, the Employee will continue to receive his or her salary and
other contractual benefits up to the Termination Date on the usual basis,
subject to the normal deductions for income tax and PRSI. Payment shall be
made in accordance with the usual payroll cycle and the final payment
shall be made on Termination Date.
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4.4
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The
Company shall reimburse the Employee for all business expenses properly
and reasonably incurred by the Employee up to the Termination Date,
subject to his or her compliance with the Company's rules and procedures
relating to expenses and the production of satisfactory
receipts.
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5.
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CONSULTING
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5.1
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In
advance of the Termination Date, the Company and the Employee will
endeavour to agree a consulting agreement to take effect from October 31,
2009, subject to formal execution of a consulting
agreement.
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6.
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NON-DISPARAGEMENT
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6.1
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Other
than as may be reasonably necessary for the purposes of enforcing the
terms of this Agreement, the parties undertake not to make or cause to be
made (directly or indirectly):
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(a)
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any
derogatory or disparaging statement about the other, and in the Employee’s
case about any Associated Company or any of the officers, employees or
shareholders of the Company or any Associated Company;
or
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(b)
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save
for the filings or disclosures as set out at clause 1.1 above, any comment
to the press or other media or any other public statement concerning the
Employee’s employment, the termination of his employment or the
Claims.
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6.2
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The
Employee and the Company agree that any covenants in this Clause 6 shall
survive indefinitely after the Termination
Date.
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7.
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SETTLEMENT
AND WAIVER
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7.1
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The
purpose of this Agreement is to settle fully and finally any of the Claims
the Employee may have whatsoever against the Company or any Associated
Companies (or any of their respective officers, directors or shareholders)
arising from his employment or termination of employment with the Company
or any Associated Companies, it not being admitted by the Company (either
for itself or any Associated Company) that he has any such
Claim.
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7.2
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The
purpose of this Agreement is to settle fully and finally any claims the
Company or any Associated Companies (or any of their respective officers,
directors or shareholders) may have whatsoever against the Employee
arising from his employment or termination of employment with the Company
or any Associated Companies, it not being admitted by the Employee that
the Company or any Associated Companies (or any of their respective
officers, directors or shareholders) has any such
Claim.
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7.3
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The
terms contained in this Agreement are in full and final settlement of the
Claims and the Employee represents to the Company that the Employee
accepts the terms of this Agreement in full and final settlement of the
Claims.
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7.4
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The
Employee represents to the Company that the Employee accepts the terms of
this Agreement in full and final settlement of any claims that the
Employee has or may have against the Company or any Associated Company (or
any of their respective officers, directors or shareholders) relating to
his or her employment, the termination of his or her employment or any
other matter including (without limitation) any action that might be
commenced before a rights commissioner, any employment tribunal or similar
or any court of law in respect of any or all of the following
claims:
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(a)
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Any
common law claims, including for wrongful dismissal, breach of contract or
tort claims (including, without limitation, any personal injury
claims);
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(b)
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Unfair
or constructive dismissal under the Unfair Dismissals Acts
1977-2007;
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(c)
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Unlawful
deduction from wages under the Payment of Wages ▇▇▇ ▇▇▇▇;
or
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(d)
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Any
other claims under the Redundancy Payments Acts 1967 to 2003, the
Protection of ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Minimum Notice and Terms of
Employment Acts 1973 to 2001, the Organisation of Working Time ▇▇▇ ▇▇▇▇,
Protection of Employees (Fixed-
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Term
Work) ▇▇▇ ▇▇▇▇, the Employment Equality Acts 1998 to 2004, the Terms of
Employment (Information) ▇▇▇ ▇▇▇▇, the Data Protection Acts 1988 and 2004 and
all other Irish employment related legislation) or otherwise.
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7.5
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The
Employee warrants and further represents that the Claims are all of the
claims that have been or will be contemplated by the
Employee.
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7.6
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The
Employee hereby agrees that, except for sums and matters referred to in
this Agreement, no other sums are due to him from the Company or any
Associated Company.
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8.
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SHARE
OPTIONS
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The
Company and the Employee agree and acknowledge that:
The
289,167 unvested options to purchase shares in Amarin Corporation Plc which the
Employee currently holds will vest and become exercisable on the Termination
Date and will remain exercisable for a period of twelve months following that
date. The 255,833 vested options to purchase shares in Amarin
Corporation Plc which the Employee currently holds will remain exercisable for a
period of twelve months following the Termination Date. Any of the Employee’s
options which have not been exercised within twelve months of the Termination
Date will lapse automatically at the end of that twelve month
period. For the avoidance of doubt, the terms and provisions of the
option plan and/or option agreement under which the options were granted shall
continue to apply except that the twelve month exercise period specified in this
clause shall override the earlier lapse of the options should this arise under
any such provisions.
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9.
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RETURN
OF PROPERTY
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The
Employee agrees that the Employee shall, on the Termination Date or as may be
requested by the Company, deliver to the Company all property and equipment,
including without limitation, laptop computer, computer disks, memory sticks,
tapes, mobile phone, security passes, fuel cards, keys, correspondence,
documents, files and other information (whether originals, copies or extracts
and whether electronic, audio or otherwise ) belonging to the Company, any of
its Associated Companies, or its or their clients. The Employee warrants by
signing this Agreement that the Employee will not retain any copies of any of
the foregoing (whether paper copies or copies stored on software storage
media).
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10.
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INDEPENDENT
LEGAL ADVICE
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The
Employee confirms that the Compensation Payment and other arrangements herein
are fair and adequate consideration for the discharge and waiver of his or her
rights. The Employee further confirms that the Employee fully understands the
implications of signing this Agreement and has signed this Agreement having
taken independent advice from BCM ▇▇▇▇▇ ▇▇▇▇▇▇▇ solicitors. The Company will
discharge the Employee's reasonable costs for legal advice taken by the Employee
within 7 days of the Closing.
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11.
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WHOLE
AGREEMENT
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The
parties to this Agreement agree and acknowledge that this Agreement sets out the
entire agreement between them relating to the termination of the Employee’s
employment with the Company or any of its Associated Companies and supersedes
all previous related discussions between them and their advisers and all
statements, representations, terms and conditions, warranties, guarantees,
proposals, communications and understandings (if any) whenever given and whether
orally or in writing, all of which are hereby treated as terminated by mutual
consent. For the avoidance of doubt, nothing in this Agreement shall in any way
alter, amend or effect the provisions of any agreement between the Company or
any of its Associated Companies and the Employee relating to confidentiality or
ownership of intellectual property rights. This Agreement may be
executed in counterparts, including by electronic transmission.
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12.
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GOVERNING
LAW ETC.
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12.1
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This
Agreement shall be governed by and construed in accordance with the laws
of Ireland and the Irish courts shall have exclusive jurisdiction for all
purposes connected with this
Agreement.
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SIGNED ………………………………………………………………………..
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For and on behalf of the
Company
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DATED ………………………………………………………………………..
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SIGNED ………………………………………………………………………..
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DATED ………………………………………………………………………..
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APPENDIX
1
WARRANT
WARRANT
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE 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 UNLESS (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS OR (B) AN EXEMPTION FROM SUCH REGISTRATION OR QUALIFICATION
REQUIREMENTS IS AVAILABLE. AS A CONDITION TO PERMITTING ANY TRANSFER
OF THESE SECURITIES PURSUANT TO CLAUSE (B) ABOVE, THE COMPANY MAY REQUIRE THAT
IT BE FURNISHED WITH AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY
TO THE EFFECT THAT NO REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED FOR SUCH
TRANSFER.
AMARIN
CORPORATION PLC
WARRANT
TO PURCHASE ORDINARY SHARES
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No.
W___
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October
16, 2009
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Void After October 16, 2014
THIS
CERTIFIES THAT, for value received, ▇▇▇▇ ▇▇▇▇▇, or assigns (the “Holder”), is entitled to
subscribe for and purchase at the Exercise Price (defined below) from Amarin
Corporation plc, a public limited company incorporated under the laws of England
and Wales, with its registered office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the “Company”), up to 247,050
ordinary shares, par value ₤0.50 per share, of the Company (the “Ordinary Shares”), each
Ordinary Share represented by one American Depositary Share of the Company
(“ADS”), subject to
adjustment as provided herein. This warrant is one of a series of
warrants (each a “Warrant” and collectively, the
“Warrants”) being issued
in connection with the Securities Purchase Agreement, dated as of
October 12, 2009, by and among the Company, the original Holder of
this Warrant and the other parties named therein (the “Purchase
Agreement”). The initial Holder is entitled to the benefit of
certain registration rights with respect to the Ordinary Shares issuable upon
exercise of this Warrant, and subsequent holders of this Warrant may be entitled
to such rights (subject to Section 6.9 of the Purchase Agreement).
1. DEFINITIONS. As
used herein, the following terms shall have the following respective
meanings:
(a) “Assignment Form” shall mean
the form attached hereto as Exhibit A.
(b) “Business Day” shall mean any
day the NASDAQ Capital Market or other national securities exchange on which the
ADS are then listed is open for trading in New York City, New York and which is
not a Saturday, a Sunday or any other day on which banks in New York City, New
York or Dublin, Ireland are authorized or required by law to close.
(c) “Exercise Period” shall mean
the period commencing on the date hereof and ending on
October 16, 2014, unless sooner terminated as provided
below.
(d) “Exercise Price” shall mean the
greater of (i) $1.50 per Ordinary Share, subject to adjustment pursuant to
Section 5 below, and (ii) the amount in U.S. dollars equal to the £0.50 per
Ordinary Share (subject to any adjustment of the par value of the Ordinary
Shares as a result of the occurrence of the events specified in Section 5),
using for this purpose the U.S. dollar/UK pounds sterling exchange rate as
published in the New York City edition of the Wall Street Journal on the date of
exercise.
(e) “Exercise Shares” means all or
some of the Warrant Shares to which the Holder would be entitled in accordance
with this Warrant as specified in the Notice of Exercise and which the Holder
instructs the Company to offer to prospective subscribers pursuant to Section
2.2.
(f) “Subscription Rights” means the
rights of the Holder to subscribe for Warrant Shares pursuant to this Warrant,
on the terms and subject to the conditions set out herein.
(g) “Warrant Shares” shall mean the
Ordinary Shares, each Ordinary Share represented by an ADS, issued upon exercise
of all or any portion of this Warrant, subject to adjustment pursuant
to the terms herein, including but not limited to Section 5
below.
(h) Capitalized
terms not otherwise defined herein shall have the respective meanings ascribed
to such terms in the Purchase Agreement.
2. EXERCISE OF
WARRANT.
2.1. Method of Exercise Upon Payment of
the Exercise Price in Cash. The rights represented by this
Warrant may be exercised in whole or, subject to Section 2.4 hereof, in
part in cash at any time during the Exercise Period, by delivery of the
following to the Company at its address set forth above (or at such other
address as it may designate by notice in writing to the Holder):
(a) An
executed Notice of Exercise in the form attached hereto as Exhibit B (the “Notice of
Exercise”);
(b) Payment
of the Exercise Price for the number of Ordinary Shares being purchased by wire
transfer of immediately available funds;
(c) This
Warrant (together with each duly completed Assignment Form in respect of each
assignment of this Warrant, if any, subsequent to the date hereof);
and
(d) All other
documentation required by the transfer agent in the ordinary course of its
business.
2.2. Method
of Cashless Exercise.
(a) The
Holder may at any time serve a Notice of Exercise requiring the Company, within
five (5) Business Days of the date of the Notice of Exercise, to instruct its
brokers to use their reasonable endeavours to procure subscribers for the
Exercise Shares at the best cash price available during the five (5) Business
Days following receipt of such instructions from the Company. On or
before the fifth (5th) Business Day following receipt of such instructions, the
brokers shall notify the Company and the Holder of whether or not it has found
subscribers for the Exercise Shares and, if it has, of the best cash price(s)
the buyer(s) is offering to pay for the Exercise Shares (the “Exercise Subscription
Price”). If (x) the Exercise Subscription Price is at least
equal to the Exercise Price and (y) the Holder accepts such Exercise
Subscription Price, by notice in writing to the Company, the Company shall
instruct the brokers to arrange for such subscription (if it is still available)
to take place as soon as reasonably practicable and shall, within five (5)
Business Days of such subscription, pay to the Holder for each Exercise Share
the amount by which the Exercise Subscription Price therefor is greater than the
Exercise Price (the “Holder
Proceeds”) and shall pay the Exercise Price to the Company (after
deduction of reasonable broker's commission and other reasonable expenses
associated with the procurement of such subscribers). In the event
that, during the period of five (5) Business Days following receipt of
instructions to do so by the Company, the brokers are not able to procure
subscribers for all of the Exercise Shares or to procure subscribers for all of
the Exercise Shares at a price acceptable to the Holder, then upon the broker
notifying the Company and the Holder of (i) the fact that subscribers for all
the Exercise Shares could not be found and/or (ii) the best cash price(s) at
which subscribers for all the Exercise Shares could be found, the Holder shall
have the option by notice in writing to the Company within two (2) Business Days
thereafter to either (i) revoke its Notice of Exercise in whole or in part (in
which event the Company shall consent in writing to the revocation of such
Notice of Exercise) and/or (ii) receive the Exercise Shares itself upon the
Holder’s payment of the Exercise Price to the Company by wire transfer of
immediately available funds.
(b) In the
event that more than one holder of Warrants validly serves a Notice of Exercise
on the Company pursuant to this Section 2.2, then, if such Notices of Exercise
are served on the same Business Day, such holders shall be treated on a pro rata
basis with regards to any subscribers that the brokers procure, and if served on
different days they shall be treated in the same order of priority as the order
in which the Notices of Exercise were served.
(c) Receipt
by the Holder of the Holder Proceeds under Section 2.2(a) shall constitute full
exercise of that Holder's Subscription Rights for Warrant Shares equal to the
number of Exercise Shares issued to subscribers pursuant to that
clause.
2.3. Effect of
Exercise. Upon the exercise of the rights represented by this
Warrant, and compliance with Section 2.1 or 2.2 above (i) the Holder shall
be deemed to be the Holder of record of the Warrant Shares issuable upon such
exercise, notwithstanding that the register of members of the Company shall then
be closed or that ADSs constituting such Warrant Shares shall not then actually
have been issued to the Holder and (ii) ADSs shall be issued for the Warrant
Shares so purchased, and shall be registered in the name of the Holder or
persons specified in an original accompanying Assignment Form or Notice of
Exercise, promptly after the rights represented by this Warrant shall have been
so exercised. The Exercise Price includes costs of exercise and
issuance, such as any stamp duty or stamp duty reserve tax with
respect
thereto
or any other cost incurred by the Company in connection with the exercise of
this Warrant and the related issuance of Warrant Shares. In
connection with the exercise of the rights represented by this Warrant, the
Holder shall not be required to pay any amount to the Company other than the
payment of the Exercise Price applicable thereto. In no event shall
this Warrant be exercised on a net cash basis.
2.4. Partial
Exercise. This Warrant may be exercised in part; provided, however, that no partial
exercise of this Warrant may be in respect for less than 50,000 Warrant
Shares; and provided,
further, that if this
Warrant is, upon issuance, exercisable for less than 50,000 Warrant Shares,
this Warrant may be exercised in whole but not in part. If this
Warrant is exercised in part only, the Company shall, upon surrender of this
Warrant, execute and deliver, within ten (10) days of the date of exercise, a
new Warrant evidencing the rights of the Holder, or such other person as shall
be designated in an accompanying Notice of Assignment, to purchase the balance
of the Warrant Shares purchasable hereunder. In addition, in no event
shall this Warrant be exercised for a fractional Warrant Share, and the Company
shall not distribute a Warrant exercisable for a fractional Warrant
Share. Fractional Warrant Shares shall be treated as provided in
Section 7 hereof.
3. COVENANTS OF THE
COMPANY.
3.1. Covenants as to Warrant
Shares. The Company covenants and agrees that all Warrant
Shares that may be issued upon the exercise of the rights represented by this
Warrant will, upon issuance, be validly issued, fully paid and free from all
Liens. The Company further covenants and agrees that the Company will
at all times during the Exercise Period, have (and reserve) sufficient
authorized and unissued share capital to issue all the Warrant Shares issuable
upon the exercise of the rights represented by this Warrant. If at
any time during the Exercise Period the authorized and unissued share capital
shall not be sufficient to permit exercise of this Warrant and all other
outstanding Warrants and other options to acquire Ordinary Shares in full, the
Company will promptly take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued share capital (or
other securities as provided herein) to such amount as shall be sufficient for
such purposes.
3.2. No
Impairment. Except and to the extent as waived or consented to
by the Holder in accordance with Section 11 hereof, the Company will not, by
amendment of its Memorandum and Articles of Association, or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities, or any other means or action, avoid or seek to avoid the
observance or performance in full of any of the terms of this Warrant to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Warrant and in
the taking of all commercially reasonable actions as may be necessary in order
to protect the rights of the Holder hereunder against impairment.
3.3. Notices of Record
Date. Upon any establishment by the Company of a record date
of the holders of any class or series of securities for the purpose of
determining the holders thereof who are entitled to (a) receive any dividend or
other distribution, or right or option to acquire securities of the Company, or
any other similar right, or (b) vote on any capital
reorganization,
reclassification, recapitalization, merger or consolidation of the Company with
or into any other corporation or other entity, any transfer of all or
substantially all the assets of the Company, or any voluntary or involuntary
dissolution, scheme of arrangement, liquidation or winding up of the Company,
the Company shall mail to the Holder at least ten (10) Business Days prior
to such record date, a notice specifying (i) the date established as the record
date for the purpose of such dividend, distribution, option or right and a
description of such dividend, distribution, option or right, (ii) the date
established as the record date for any such reorganization, reclassification,
recapitalization, merger, consolidation, transfer, dissolution, scheme of
arrangement, liquidation or winding up and the date any such reorganization,
reclassification, recapitalization, merger, consolidation, transfer,
dissolution, scheme of arrangement, liquidation or winding up is expected to
become effective, and (iii) the date, if any, fixed as to when the holders of
record of such securities shall be entitled to exchange their securities for
securities or other property deliverable upon such reorganization,
reclassification, recapitalization, consolidation, merger, transfer,
dissolution, scheme of arrangement, liquidation or winding up.
4. REPRESENTATIONS OF HOLDER. The Holder
represents and warrants that it is acquiring this Warrant, and at the time of
exercise of this Warrant will acquire the Warrant Shares, solely for its account
and not with a present view toward the public sale or distribution of said
Warrant or Warrant Shares or any part thereof and has no intention of selling or
distributing said Warrant or Warrant Shares or any arrangement or understanding
with any other persons regarding the sale or distribution of said Warrant or the
Warrant Shares, except, in either case, as would not result in a violation of
the Securities Act. The Holder hereby represents, warrants and
acknowledges to the Company each of the representations, warranties and
acknowledgements as set forth in Section 3 of the Purchase Agreement as if such
representations, warranties and acknowledgements were set out in full
herein.
5. REORGANIZATION, RECLASSIFICATION,
CONSOLIDATION, ETC. The Exercise Price and/or the number of Warrant
Shares issuable upon exercise of this Warrant will be subject to adjustment in
the event of changes in the outstanding Ordinary Shares or ADSs, by reason of a
capital reorganization, reclassification, recapitalization, stock split, reverse
stock split, stock dividend, subdivision, split-up, combination of shares or
other transaction having similar effect. In any such case, the number
of Warrant Shares available under this Warrant in the aggregate and the Exercise
Price shall be correspondingly adjusted to give the Holder, on exercise for the
same aggregate Exercise Price, the total number of Warrant Shares as such Holder
would have owned had the Warrant been exercised prior to the event requiring
adjustment and had such Holder continued to hold such shares until after such
event.
If any
(i) capital reorganization, reclassification or recapitalization (other than a
subdivision or combination of the capital stock of the Company into a greater or
lesser number of shares of stock, whether with or without par value, which shall
be subject to the foregoing provisions of this Section 5);
(ii) merger, consolidation, scheme of arrangement, reorganization or other
similar transaction or series of related transactions which results in the
voting securities of the Company outstanding immediately prior thereto
representing immediately thereafter (either by remaining outstanding or by being
converted into voting securities of or economic interests in the surviving or
acquiring entity) 50% or less of the combined voting power of the voting
securities of the Company or such surviving or acquiring entity outstanding
immediately after such merger, consolidation, scheme of arrangement
or
reorganization;
(iii) sale, lease, license, transfer, conveyance or other disposition of all or
substantially all of the assets of the Company; (iv) sale of shares of capital
stock of the Company, in a single transaction or series of related transactions,
representing greater than 50% of the voting power of or economic interests in
the voting securities of the Company; or (v) any “person” (together with his,
her or its affiliates) or “group” (within the meaning of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended) acquires, directly or
indirectly, the beneficial ownership (as such term is defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of outstanding
shares of capital stock and/or other equity securities of the Company, in a
single transaction or series of related transactions (including, without
limitation, one or more tender offers or exchange offers), representing at least
50% of the voting power of or economic interests in the then outstanding shares
of capital stock of the corporation (each of (i)-(v) above a “Corporate Reorganization”)
shall be effected, then the Company shall use its best efforts to ensure that
lawful and adequate provision shall be made whereby each Holder shall thereafter
continue to have the right to purchase and receive upon the basis and upon the
terms and conditions herein specified and in lieu of the Warrant Shares issuable
upon exercise of the Warrants held by such Holder, shares of stock in the
surviving or acquiring entity (“Acquirer”), as the case may
be, such that the aggregate value of the Holder’s warrants to purchase such
number of shares of the Acquirer, where the value of each new warrant to
purchase one share in the Acquirer is determined in accordance with the
Black-Scholes Option Pricing formula set forth in Exhibit C hereto, is
equivalent to the aggregate value of the Warrants held by such Holder, where the
value of each Warrant to purchase one share in the Company is determined in
accordance with the Black-Scholes Option Pricing formula set forth Exhibit D hereto.
Furthermore, the new warrants to purchase shares in the Acquirer referred to
herein shall have the same expiration date as the Warrants, and shall have a
strike price, KAcq, that is
calculated in accordance with Exhibit C
hereto. For the avoidance of doubt, if the surviving or acquiring
entity, as the case may be, is a member of a consolidated group for financial
reporting purposes, the “Acquirer” shall be deemed to
be the parent of such consolidated group for purposes of this Section 6 and
Exhibit C hereto.
Moreover,
appropriate provision shall be made with respect to the rights and interests of
each Holder to the end that the provisions hereof (including, without
limitation, provision for adjustment of the Exercise Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation to any shares
of stock thereafter deliverable upon the exercise thereof. The Company shall
effect any such Corporate Reorganization only if (A) the Acquirer shall assume
by written instrument delivered to the Holders at least two (2) Business Days
prior to the consummation of the Corporate Reorganization, the obligation to
deliver to each Holder, at the last address of such Holder appearing on the
books of the Company, such shares of stock, as, in accordance with the foregoing
provisions, such Holder may be entitled to purchase, and the other obligations
under the Warrants through the termination of the Exercise Period and (B)
Holders representing at least a majority of the Warrant Shares then issuable
upon exercise of the Warrants do not notify the Company in writing prior to the
consummation of the Corporate Reorganization that such written instrument does
not, in their reasonable judgment, comply with the provisions of this Section
5. Notwithstanding the foregoing, if the Company, in spite of using
its best efforts, is unable to comply with the foregoing provisions of this
Section 5 in connection with any Corporate Reorganization, then the Company
shall pay the Holders an amount per Warrant to purchase one share in the Company
that is calculated in accordance with the Black-Scholes Option Pricing formula
set forth in Exhibit D
hereto. Such payment shall be made in cash in the event that the Corporate
Reorganization results in the shareholders of the Company receiving cash from
the Acquirer at the closing of the transaction, and shall be made in shares of
the Company (delivered prior to the consummation of the Corporate
Reorganization) with the value of each share in the Company determined according
to SCorp
in Exhibit D
hereto, in the event that the Corporate Reorganization results in the
shareholders of the Company receiving shares in the Acquirer or other entity at
the closing of the transaction. In the event that the shareholders of the
Company receive both cash and shares at the closing of the transaction, such
payment to the Holders shall
be also
be made in both cash and shares in the same proportion as the consideration
received by the shareholders. The provisions of this Section 5
shall similarly apply to successive Corporate Reorganizations.
6. CERTIFICATE AS TO
ADJUSTMENTS. Upon the occurrence of each adjustment or
readjustment of the Exercise Price and the number of Warrant Shares to be
obtained upon exercise of this Warrant pursuant to Section 5, this Warrant
shall, without any action on the part of the holder thereof, be adjusted in
accordance with Section 5, and the Company promptly shall compute such
adjustment or readjustment in accordance with the terms hereof and prepare and
furnish to the Holder a certificate setting forth such adjustment or
readjustment, showing in detail the facts upon which such adjustment or
readjustment is based. Such certificate shall be informational only
and not binding on the Holder, provided that, absent manifest error, the
computation set forth in such certificate shall be binding upon the Holder
unless the Holder or any other holder of Warrants shall have objected thereto,
within thirty (30) days after receiving such certificate, by a written notice to
the Company setting forth the basis of such objection.
7. FRACTIONAL
SHARES. No fractional shares shall be issued upon the exercise
of this Warrant as a consequence of any adjustment pursuant
hereto. All Warrant Shares (including fractions) issuable upon
exercise of this Warrant may be aggregated for purposes of determining whether
the exercise would result in the issuance of any fractional
share. If, after aggregation, the exercise would result in the
issuance of a fractional share, the Company shall, in lieu of issuance of any
fractional share, pay the Holder otherwise entitled to such fraction a sum in
cash equal to the product resulting from multiplying the then current fair
market value of an Warrant Share by such fraction.
8. NO SHAREHOLDER RIGHTS OR
OBLIGATIONS. This Warrant in and of itself shall not entitle
the Holder to any voting rights or other rights, or impose any duties or
obligations, as a shareholder of the Company.
9. TRANSFER OF
WARRANT. Subject to applicable laws and compliance with
Section 4.9 of the Purchase Agreement and delivery of this Warrant and an
executed Assignment Form, this Warrant and all rights hereunder are
transferable, by the Holder in person or by duly authorized attorney, upon
delivery of this Warrant and the form of assignment attached hereto to any
transferee designated by the Holder. The Holder agrees to promptly
notify the Company of any such transfer, and the Company may deem and treat the
person or entity in whose name this Warrant is registered as the absolute owner
thereof.
10. LOST, STOLEN, MUTILATED OR DESTROYED
WARRANT. If this Warrant is lost, stolen, mutilated or
destroyed, the Company may, on such terms as to indemnity or otherwise as it may
reasonably impose (which shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination and tenor as the
Warrant so lost, stolen, mutilated or destroyed. Any such new Warrant
shall constitute an original contractual obligation of the Company, whether or
not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any
time enforceable by anyone.
11. MODIFICATIONS AND
WAIVER. Unless otherwise provided herein, this Warrant and any
provision hereof may be changed, waived, discharged or terminated only by an
instrument in writing signed by the Company and the Holder.
12. NOTICES, ETC. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed facsimile if sent during normal
business hours of the recipient, if not, then on the next Business Day, (c) five
(5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) Business Day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to
the Company at the address listed on the signature page and to the Holders at
the addresses on the Company records, or at such other address as the Company or
Holder may designate by ten days’ advance written notice to the other party
hereto.
13. ACCEPTANCE. Receipt
of this Warrant by the Holder shall constitute acceptance of and agreement to
all of the terms and conditions contained herein and in the Purchase Agreement
to the extent applicable to this Warrant or the Warrant Shares.
14. GOVERNING LAW. This
Warrant and all rights, obligations and liabilities hereunder shall be governed
by the laws of England and Wales without regard to the principles of conflict of
laws.
15. DESCRIPTIVE
HEADINGS. The descriptive headings of the several paragraphs
of this Warrant are inserted for convenience only and do not constitute a part
of this Warrant. The language in this Warrant shall be construed as to its fair
meaning without regard to which party drafted this Warrant.
16. SEVERABILITY. The
invalidity or unenforceability of any provision of this Warrant in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction, or affect any other provision of this Warrant, which
shall remain in full force and effect.
17. ENTIRE
AGREEMENT. This Warrant, together with the provisions of the
Purchase Agreement to the extent applicable to this Warrant or the Warrant
Shares, constitutes the entire agreement between the parties pertaining to the
subject matter contained in it and supersedes all prior and contemporaneous
agreements, representations, and undertakings of the parties, whether oral or
written, with respect to such subject matter.
18. WARRANT BINDING UPON ASSIGNEE OR
SUCCESSOR. The terms and conditions of this Warrant shall be
binding upon, and inure to the benefit of, any permitted assignee and successor
of the Holder.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed and
delivered as a deed as of October 16, 2009.
|
AMARIN
CORPORATION PLC
|
|
By:
_______________________________
Name:
Title: Director
|
|
Address: Amarin
Corporation plc
First Floor, Block 3
The Oval, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇
Facsimile: ▇▇▇ (▇)
▇▇▇▇ ▇▇▇
|
|
In
the presence of a witness
|
|
By:
______________________________
Name:
Title:
|
|
Occupation:
Address:
|
EXHIBIT
A
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, subject to compliance with the terms of the
Warrant, execute this form and supply required information. Do not
use this form to exercise the Warrant.)
FOR VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
|
Name:
(Please
Print)
|
|
Address:
(Please
Print)
|
and the
Company Secretary is hereby appointed to transfer said rights on the books of
Amarin Corporation plc, with full power of substitution in the
premises.
Dated: __________,
20__
|
Holder’s
Name:________________________
|
|
Title:________________________________
|
|
Holder’s
Address:_____________________
|
|
Holder’s
Telephone:____________________
|
|
Facsimile:____________________________
|
|
Assignee
Tax ID No.:___________________
|
|
Assignee
Telephone:____________________
|
|
Assignee
Facsimile:_____________________
|
|
Signature
Guaranteed:___________________
|
NOTE: The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatever and must be guaranteed by a bank or trust company. Officers
of the Company and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.
EXHIBIT
B
NOTICE OF
EXERCISE
TO: AMARIN
CORPORATION PLC
(1) The
undersigned hereby elects to purchase ________ ordinary shares (“Ordinary Shares”) of Amarin
Corporation plc (the “Company”) in the form of
American Depositary Shares (“ADSs”) pursuant to the terms
of the attached warrant (the “Warrant”), and tenders
herewith payment of the Exercise Price in full for such ADSs in accordance with
Section [2.1] [2.2] of the Warrant, together
with all applicable transfer taxes, if any.
(2) Please
issue ADSs representing said Ordinary Shares in the name of the undersigned or
in such other name as is specified in the accompanying Notice of
Assignment:
|
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:
|
______________________________
(Date)
|
______________________________
______________________________
(Signature)
|
|
______________________________
______________________________
(Holder’s
Name)
|
|
______________________________
______________________________
(Authorized
Signature)
|
|
______________________________
______________________________
(Title)
|
|
______________________________
______________________________
(Tax
ID Number)
|
|
______________________________
______________________________
(Telephone)
|
NOTE: SIGNATURE
MUST CONFORM IN ALL RESPECTS TO THE NAME OF HOLDER AS SPECIFIED ON THE FACE OF
THE WARRANT.
EXHIBIT
C
Black
Scholes Option Pricing formula to be used when calculating the value of each new
warrant to purchase one share in the Acquirer shall be:
CAcq
= SAcqe-λ(TAcq-tAcq)N(d1) – KAcqe-r(TAcq-tAcq)N(d2),
where
CAcq = value of each warrant to
purchase one share in the Acquirer
SAcq = price of Acquirer’s stock
as determined by reference to the average of the closing prices on the
securities exchange or Nasdaq Global Market over the 20-day period
ending three trading days prior to the closing of the Corporate Reorganization
described in Section 6 if the Acquirer’s stock is then traded on such
exchange or system, or the average of the closing bid or sale prices (whichever
is applicable) in the over-the-counter market over the 20-day period ending
three trading days prior to the closing of the Corporate Reorganization if the
Acquirer’s stock is then actively traded in the over-the-counter market, or the
then most recently completed financing if the Acquirer’s stock is not then
traded on a securities exchange or system or in the over-the-counter
market.
TAcq = expiration date of new
warrants to purchase shares in the Acquirer = TCorp
tAcq = date of issue of new
warrants to purchase shares in the Acquirer
TAcq-tAcq = time until warrant
expiration, expressed in years
σ =
volatility = annualized standard deviation of daily log-returns (using a
262-day annualization factor) of the Acquirer’s stock price on the securities
exchange or Nasdaq Global Market over a 20-day trading
period, determined by the Holders of more than 50% of the Warrants, that is
within the 100-day trading period ending on the trading day immediately after
the public announcement of the Corporate Reorganization described in
Section 6 if the Acquirer’s stock is then traded on such exchange or
system, or the annualized standard deviation of daily-log returns (using a
262-day annualization factor) of the closing bid or sale prices (whichever is
applicable) in the over-the-counter market over a 20-day trading period,
determined by the Holders of more than 50% of the Warrants, that is within the
100-day trading period ending on the trading day immediately after the public
announcement of the Corporate Reorganization if the Acquirer’s stock is then
actively traded in the over-the-counter market, or 0.6 (or 60%) if the
Acquirer’s stock is not then traded on a securities exchange or system or in the
over-the-counter market.
N = cumulative normal
distribution function
d1 =
(ln(SAcq/KAcq)
+ (r-λ+σ2/2)(TAcq-tAcq))
÷ (σ√(TAcq-tAcq))
ln = natural
logarithm
λ =
dividend rate of the Acquirer for the most recent 12-month period at the
time of closing of the Corporate Reorganization.
KAcq = strike price of new warrants to
purchase shares in the Acquirer = KCorp
*
(SAcq
/
SCorp)
r = annual yield, as reported
by Bloomberg at time tAcq, of the
United States Treasury security measuring the nearest time TAcq
d2 = d1- σ√(TAcq-tAcq)
EXHIBIT
D
Black
Scholes Option Pricing formula to be used when calculating the value of each
Warrant to purchase one Ordinary Share in the Company shall be:
CCorp
= SCorpe-λ(TCorp-tCorp)N(d1) – KCorpe-r(TCorp-tCorp)N(d2),
where
CCorp = value of each Warrant to
purchase one Ordinary Share in the Company
SCorp = price of Company stock as
determined by reference to the average of the closing prices on the securities
exchange or Nasdaq Global Market over the 20-day period
ending three trading days prior to the closing of the Corporate Reorganization
described in Section 6 if the Company’s stock is then traded on such
exchange or system, or the average of the closing bid or sale prices (whichever
is applicable) in the over-the-counter market over the 20-day period ending
three trading days prior to the closing of the Corporate Reorganization if the
Company’s stock is then actively traded in the over-the-counter market, or the
then most recently completed financing if the Company’s stock is not then traded
on a securities exchange or system or in the over-the-counter
market.
TCorp = expiration date of Warrant
to purchase Ordinary Shares in the Company
tCorp = date of public announcement
of transaction
TCorp-tCorp = time until Warrant
expiration, expressed in years
σ =
volatility = the annualized standard deviation of daily log-returns
(using a 262-day annualization factor) of the Company’s stock price on the
securities exchange or Nasdaq Global Market over a 20-day trading
period, determined by the Holders of more than 50% of the Warrants, that is
within the 100-day trading period ending on the trading day immediately after
the public announcement of the Corporate Reorganization described in
Section 6 if the Company’s stock is then traded on such exchange or system,
or the annualized standard deviation of daily-log returns (using a 262-day
annualization factor) of the closing bid or sale prices (whichever is
applicable) in the over-the-counter market over a 20-day trading period,
determined by the Holders of more than 50% of the Warrants, that is within the
100-day trading period ending on the trading day immediately after the public
announcement of the Corporate Reorganization if the Company’s stock is then
actively traded in the over-the-counter market, or 0.6 (or 60%) if the Company’s
stock is not then traded on a securities exchange or system or in the
over-the-counter market.
N = cumulative normal
distribution function
d1 =
(ln(SCorp/KCorp) + (r-λ+σ2/2)(TCorp-tCorp))
÷ (σ√(TCorp-tCorp))
ln = natural
logarithm
λ =
dividend rate of the Company for the most recent 12-month period at the
time of closing of the Corporate Reorganization.
KCorp = strike price of
Warrant
r = annual yield, as reported
by Bloomberg at time tCorp, of the
United States Treasury security measuring the nearest time TCorp
d2
= d1- σ√(TCorp-tCorp)