Exhibit 99.1

December 3, 2007

CONFIDENTIAL

Amarin Corporation plc

7 Curzon Street

London W1J 5HG, England

Attn:  Alan Cooke, CFO

Dear Alan:

 

This letter (the “ Agreement ”) constitutes the agreement between Rodman & Renshaw, LLC (“ R&R ” or the “ Placement Agent ”) and Amarin Corporation plc (the “ Company ”), that R&R shall serve as the exclusive placement agent for the Company, on a “reasonable best efforts” basis, in connection with the proposed placement (the “ Placement ”) of ordinary shares, ₤0.05 par value per share, of the Company (each, a “Share”), each Share represented by one American Depositary Share (“ ADS ”), evidenced by one American Depositary Receipt (“ ADR ”), and (ii) warrants to purchase Shares, each Ordinary Share represented by one ADS, evidenced by one ADR (the Shares and such warrants collectively, the “ Securities ”).  R&R shall be authorized to utilize sub-placement agents and/or selected dealers in its discretion (provided that the use of any sub-placement agent and/or selected dealers by Rodman shall not increase any fees or expenses payable by the Company under this Agreement or release R&R from its obligations under this Agreement) in compliance with applicable rules and regulations.  The terms of such Placement and the Securities shall be mutually agreed upon by the Company and the purchasers (each, a “ Purchaser ” and collectively, the “ Purchasers ”) and nothing herein provides R&R with any power or authority to bind the Company or any Purchaser or obligates the Company to issue any Securities or complete the Placement.  This Agreement and the documents executed and delivered by the Company and the Purchasers in connection with the Placement shall be collectively referred to herein as the “ Transaction Documents .”  The date of the closing of the Placement shall be referred to herein as the “ Closing Date .”  The Company expressly acknowledges and agrees that R&R’s obligations hereunder are on a reasonable best efforts basis only and that the execution of this Agreement does not constitute a commitment by R&R to purchase the Securities and does not ensure the successful placement of the Securities or any portion thereof or the success of R&R with respect to securing any other financing on behalf of the Company.

 

I.    COMPENSATION AND OTHER FEES .

 

A.    As compensation for the services provided by R&R hereunder, the Company agrees to pay to R&R a cash fee payable immediately upon the closing of the Placement equal to 5% of the aggregate gross proceeds raised from the placement of the Securities; provided that in the case of those investors listed on Schedule A hereto, the cash fee shall equal 2.5% of the aggregate gross proceeds raised from such investors.

 

B.    The Company also agrees to reimburse R&R’s reasonable, out-of-pocket expenses (with supporting invoices/receipts) if the Placement is consummated.  If the Placement is not consummated (i) due to the occurrence of any event specified in subsection 8(F) or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, in each case such expenses shall not exceed $50,000 without prior written consent of the Company, or (ii) if the Placement is not consummated for any other reason not mentioned in (i) above, then such expenses shall not exceed $10,000 without prior written consent of the Company.  Such reimbursement shall be payable immediately upon the closing of the Placement or within a reasonable time after any other termination of this Agreement.

 

II.    REGISTRATION STATEMENT .

 

              The Company represents and warrants to, and agrees with, the Placement Agent that:

 

A.    The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form F-3 (Registration File No.   333-135718 ) under the Securities Act of 1933, as amended (the “Securities Act”), which became effective on August 2, 2006, for the registration under the Securities Act of the Shares.  At the time of such filing, the Company met the requirements of Form F-3 under the Securities Act.  Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule.  The Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a supplement to the form of prospectus included in such registration statement relating to the placement of the Shares, the plan of distribution thereof and all further information (financial and other) with respect to the Company required to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date of this Agreement, is hereinafter called the “Registration Statement”; such prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”; and the supplemented form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter called the “Prospectus Supplement.”  Any reference in this Agreement to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 9 of Form F-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the Registration Statement, the Base Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus or the Prospectus Supplement, as the case may be.  No stop order suspending the effectiveness of the Registration Statement or the use of the Base Prospectus or the Prospectus Supplement has been issued, and no proceeding for any such purpose is pending or has been initiated or, to the Company's knowledge, is threatened by the Commission. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act and the “Time of Sale Prospectus” means the preliminary prospectus, if any, together with the free writing prospectuses, if any, used in connection with the Placement, including any documents incorporated by reference therein.

 

B.    The Registration Statement (and any further documents to be filed with the Commission) contains all exhibits and schedules as required by the Securities Act.  Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, as amended or supplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement, each as of its respective date, complied in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations. Each of the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference in the Base Prospectus or Prospectus Supplement), in light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated by reference in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus Supplement, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. No post-effective amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental change in the information set forth therein is required to be filed with the Commission.  There are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within the requisite time period. There are no contracts or other documents required to be described in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which have not been described or filed (including any description or filing made through incorporation by reference of the SEC Reports (as defined in subsection 3(G)) as required.

 

C.    The Company is eligible to use free writing prospectuses in connection with the Placement pursuant to Rules 164 and 433 under the Securities Act.  Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.  Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.  The Company will not, without the prior consent of the Placement Agent, prepare, use or refer to, any free writing prospectus in connection with the Placement.

 

 

III.    REPRESENTATIONS AND WARRANTIES .   The Company hereby makes the representations and warranties set forth below to the Placement Agent.

 

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 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(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.

 

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(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 December [  ], 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 for the transactions listed on Schedule B attached hereto, 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 reconciled 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 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 payment 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.

 

Q.    Sarbanes-Oxley .  To the Company’s knowledge, after due inquiry, the Company is in material compliance with all provisions of the Sarbanes-Oxley Act of 2002 which are applicable to it as of the date hereof and of the closing date of the Placement.

 

R.    Certain Fees .  Except as otherwise provided in this Agreement and except for fees payable to Dominick & Dominick 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 listed on Schedule B, 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 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 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 (other than for the placement agent’s placement 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.

 

IV.    INDEMNIFICATION . The Company agrees to the indemnification and other agreements set forth in the Indemnification Provisions (the “ Indemnification ”) attached hereto as Addendum A, the provisions of which are incorporated herein by reference and shall survive the termination or expiration of this Agreement.

 

V.    ENGAGEMENT TERM .  R&R’s engagement hereunder will be for the period of 60 days.  The engagement may be terminated by either the Company or R&R at any time upon 10 days’ written notice, provided that the Company shall not give any such notice for a period of 20 days after the date hereof.  Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification, contribution, limitation on liability and the Company’s obligations to pay fees and reimburse expenses contained herein and the Company’s obligations contained in the Indemnification Provisions will survive any expiration or termination of this Agreement.  R&R agrees not to use any confidential information concerning the Company provided to them by the Company for any purposes other than those contemplated under this Agreement.

 

VI.    R&R INFORMATION .  The Company agrees that any information or advice rendered by R&R in connection with this engagement is for the confidential use of the Company only in their evaluation of the Placement and, except as otherwise required by law, regulation or court order, the Company will not disclose or otherwise refer to the advice or information in any manner without R&R’s prior written consent.

 

VII.    NO FIDUCIARY RELATIONSHIP .  This Agreement does not create, and shall not be construed as creating rights enforceable by any person or entity not a party hereto, except those entitled hereto by virtue of the Indemnification Provisions hereof.  The Company acknowledges and agrees that R&R is not and shall not be construed as a fiduciary of the Company and shall have no duties or liabilities to the equity holders or the creditors of the Company or any other person by virtue of this Agreement or the retention of R&R hereunder, all of which are hereby expressly waived.

 

 

VIII.    CLOSING.   The obligations of the Placement Agent and the Purchasers, and the closing of the sale of the Securities hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties on the part of the Company contained herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of their obligations hereunder, and to each of the following additional terms and conditions:

 

A.    No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission, and any request for additional information on the part of the Commission (to be included in the Registration Statement, the Base Prospectus or the Prospectus Supplement or otherwise) shall have been complied with to the reasonable satisfaction of the Placement Agent.  Any filings required to be made by the Company in  connection with the Placement shall have been timely filed with the Commission.

 

B.    The Placement Agent shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Prospectus Supplement or any amendment or supplement thereto contains an untrue statement of a fact which, in a written opinion of counsel for the Placement Agent (which opinion is provided to the Company at the Company’s request), is material or omits to state any fact which, in a written opinion of such counsel, is material and is required to be stated therein or is necessary, in light of the circumstances under which they were made, to make the statements therein not misleading.

 

C.    All corporate proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each of this Agreement, the Securities, the Registration Statement, the Base Prospectus and the Prospectus Supplement and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Placement Agent, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.

 

D.    The Placement Agent shall have received from outside counsel to the Company such counsel’s written opinion, addressed to the Placement Agent and the Purchasers dated as of the Closing Date, in form and substance reasonably satisfactory to the Placement Agent, and a “10b-5” statement from such counsel.

 

E.    (i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Base Prospectus, any loss or interference with its business from fire, explosion, flood, terrorist act or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in or contemplated by the Prospectus Supplement and (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company or any of its Subsidiaries or any change, or any development involving a prospective change, in or affecting the business, assets, financial position, or results of operations of the Company and its Subsidiaries, otherwise than as set forth in or contemplated by the Prospectus Supplement, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Placement Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by the Base Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement.

 

F.    The Common Stock is registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading on the Nasdaq Capital Market, and satisfactory evidence of such actions shall have been provided to the Placement Agent.  The Company shall have taken no action designed to, or intended to have the effect of terminating the registration of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Nasdaq Capital Market, provided that no representation is made with respect to the Company’s oral or written communications with Nasdaq Capital Market, made in good faith, in connection with the Company’s efforts to maintain its listing on the Nasdaq Capital Market.  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 received any written information suggesting that the Commission or the Nasdaq National Market is contemplating terminating such registration or listing.

 

G.    Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum or maximum prices or maximum ranges for prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged in hostilities in which it is not currently engaged, the subject of an act of terrorism, there shall have been an escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States, or (iv) there shall have occurred any other calamity or crisis or any change in general economic, political or financial conditions in the United States or elsewhere, if the effect of any such event in clause (iii) or (iv) makes it, in the reasonable judgment of the Placement Agent, impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by the Base Prospectus and the Prospectus Supplement.

 

H.    No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Securities or materially and adversely affect or potentially and adversely affect the business or operations of the Company.

 

 

I.    The Company shall have prepared and filed with the Commission a Report of Foreign Private Issuer on Form 6-K with respect to the Placement, including as an exhibit thereto this Agreement.

 

J.    The Company shall have entered into subscription agreements with each of the Purchasers and such agreements shall be in full force and effect and shall contain representations and warranties of the Company as agreed between the Company and the Purchasers.

 

K.    FINRA shall have raised no objection to the fairness and reasonableness of the terms and arrangements of this Agreement.  In addition, the Company shall, if requested by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s behalf, an Issuer Filing with the Financial Industry Regulatory Authority, Inc. Corporate Financing Department pursuant to NASD Rule 2710 with respect to the Registration Statement and pay all filing fees required in connection therewith.

 

L.    Prior to the Closing Date, the Company shall have furnished to the Placement Agent such further information, certificates and documents as the Placement Agent may reasonably request.

 

M.    The Company and the Placement Agent shall consult with each other in issuing any other press releases with respect to the purchase and sale of the Securities hereunder, and neither the Company nor the Placement Agent shall issue any such press release or otherwise make any such public statement without the prior consent of the Company, with respect to any press release of the Placement Agent, or without the prior consent of the Placement Agent, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior (where feasible) notice of such public statement or communication; provided, that no such consent shall be required for any press release in which the description of the purchase and sale of the Securities is limited to those terms as are already in the public domain.

 

N.    All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Placement Agent.

 

 

IX.    GOVERNING LAW; ASSIGNMENT .  This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made and to be performed entirely in such State.  This Agreement may not be assigned by either party without the prior written consent of the other party.  This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. Any right to trial by jury with respect to any dispute arising under this Agreement or any transaction or conduct in connection herewith is waived.  Any dispute arising under this Agreement may be brought into the courts of the State of New York or into the Federal Court located in New York, New York and, by execution and delivery of this Agreement, the Company hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of aforesaid courts.  Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by delivering a copy thereof via 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 manner permitted by law. If either party shall commence an action or proceeding to enforce any provisions of a Transaction Document, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.

 

X.    ENTIRE AGREEMENT/MISC .  This Agreement (including the attached Indemnification Provisions) embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof.  If any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any other provision of this Agreement, which will remain in full force and effect.  This Agreement may not be amended or otherwise modified or waived except by an instrument in writing signed by both R&R and the Company.  The representations, warranties, agreements and covenants contained herein shall survive the closing of the Placement and delivery and/or exercise of the Securities, as applicable.  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 a .pdf format 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 signature page were an original thereof.

 

XI.    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 specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a business day, (b) the next business day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number on the signature pages attached hereto on a day that is not a business day or later than 6:30 p.m. (New York City time) on any business day, (c) the business 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 hereto.

 

[Signature Page Follows]

Please confirm that the foregoing correctly sets forth our agreement by signing and returning to R&R the enclosed copy of this Agreement.

 

                                                                                               Very truly yours,

                                                                                               

                                                                                               RODMAN & RENSHAW, LLC

 

 

                                                                                               By:   /s/ Jonn Borer                                            

                                                                                                                                                                                                        Name:  John Borer

                                                                                                       Title:  Senior Managing Director

 

                                                                                                                                                                                                        A ddress for notice:

                                                                                                        1270 Avenue of the Americas, 16th Floor

                                                                                                        New York, NY,  10020

Accepted and Agreed to as of

the date first written above:

AMARIN CORPORATION PLC

 

By:    Alan Cooke                                                

         Name:/s/ Alan Cooke

         Title: President/CFO

Address for notice :

Amarin Corporation plc

7 Curzon Street

London W1J 5HG, England

ADDENDUM A

 

INDEMNIFICATION PROVISIONS

 

In connection with the engagement of Rodman & Renshaw, LLC (“ R&R ”) by Amarin Corporation plc (the “ Company ”) pursuant to a letter agreement dated December 3, 2007, between the Company and R&R, as it may be amended from time to time in writing (the “ Agreement ”), the Company hereby agrees as follows:

 

1.

(A)  To the extent permitted by law, the Company will indemnify R&R and its affiliates, and their respective stockholders, directors, officers, employees and controlling persons (within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934) against all losses, claims, damages, expenses and liabilities, as the same are incurred (including the reasonable fees and expenses of counsel), relating to or arising out of its activities hereunder or pursuant to the Agreement, except to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect thereof) are found in a final judgment (not subject to appeal) by a court of law to have resulted primarily and directly from R&R’s bad faith, willful misconduct or gross negligence in performing the services described herein ; provided that the foregoing indemnity agreement shall not apply to any loss, claim, damage, expense or liability arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the R&R expressly for use in the Registration Statement, Base Prospectus, the Prospectus Supplement or the Time of Sale Prospectus.

 

(B)  To the extent permitted by law, R&R and its affiliates will indemnify, and will cause any sub-placement agent or selected dealer to indemnify, the Company and its stockholders, directors, officers, employees and controlling persons (within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934) against all losses, claims, damages, expenses and liabilities, as the same are incurred (including the reasonable fees and expenses of counsel), relating to or arising out of its activities hereunder or pursuant to the Agreement insofar as such loss, claim, damage, expense or liability arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in and in conformity with information concerning the Placement Agent furnished in writing by or on behalf of the Placement Agent to the Company expressly for use in any amendment to the Registration Statement or the Prospectus Supplement or any Time of Sale Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such information required to be stated in such Registration Statement, the Disclosure Package or such Prospectus or necessary to make such information not misleading.

 

2.

Promptly after receipt by an indemnified party of notice of any claim or the commencement of any action or proceeding with respect to which such indemnified party is entitled to indemnity hereunder, such indemnified party will notify the indemnifying party in writing of such claim or of the commencement of such action or proceeding, and the indemnifying party will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory to an indemnified party and will pay the reasonable fees and expenses of such counsel.  Notwithstanding the preceding sentence, such indemnified party will be entitled to employ counsel separate from counsel for the Company and from any other party in such action if counsel for an indemnified party reasonably determines that it would be inappropriate under the applicable rules of professional responsibility for the same counsel to represent both the Company and R&R.  In such event, the reasonable fees and disbursements of no more than one such separate counsel will be paid by the indemnifying party.  The indemnifying party will have the exclusive right to settle the claim or proceeding, provided that the indemnifying party will not settle any such claim, action or proceeding without the prior written consent of the indemnified party, which will not be unreasonably withheld.

 

 

 

3.	The indemnifying party agrees to notify the indemnified party promptly of the assertion against it of any claim or the commencement of any action or proceeding relating to a transaction contemplated by the Agreement.

 

4.

If for any reason the foregoing indemnity is unavailable to an indemnified party or insufficient to hold such indemnified party harmless (other than as a result of the limitations thereon set forth in paragraph 1 above), then the indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party on the one hand and by the indemnified on the other, but also the relative fault of the indemnifying party on the one hand and the indemnified party on the other that resulted in such losses, claims, damages or liabilities, as well as any relevant equitable considerations.  The amounts paid or payable by a party in respect of losses, claims, damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses incurred in defending any litigation, proceeding or other action or claim.  Notwithstanding the provisions hereof, R&R’s share of the liability hereunder shall not be in excess of the amount of fees actually received, or to be received, by R&R under the Agreement (excluding any amounts received as reimbursement of expenses incurred by R&R).

 

5.

These Indemnification Provisions shall remain in full force and effect whether or not the transaction contemplated by the Agreement is completed and shall survive the termination of the Agreement, and shall be in addition to any liability that the indemnifying any might otherwise have to any indemnified party under the Agreement or otherwise.

 

                                 RODMAN & RENSHAW, LLC

                                                                  By:     /s/ John Borer                                           

                                                                            Name:  John Borer

                                                                            Title:  Senior Managing Director

Accepted and Agreed to as of

the date first written above:

AMARIN CORPORATION PLC

 

 

 

SCHEDULE A

 

Roswell

Fort Mason

Midsummer

Vision

Sandel

Centercourt

Southridge

Special Situation

SCO

Potomac

Perceptive

Micro Capital

Sterling Johnson

 

SCHEDULE B

 

1.	175,000 Warrants were granted to Neurostat Pharmaceuticals Inc. with an exercise price of $1.79 per ordinary share, subject to adjustment pursuant to the terms of the Warrants.

 

2.	10,000 Warrants were approved to Strategic Pharmaceutical Solutions but the exact terms have not yet been finalized for issuance.

 

 

---

Amarin Corporation plc

December 3, 2007

Indemnification Provisions

Exhibit 99.2

---

 

 

 

 

 

 

AMARIN CORPORATION PLC,

as Issuer,

 

and

 

Wilmington Trust Company, as Trustee

 

 

SENIOR INDENTURE

 

 

Dated as of December 6, 2007

 

 

 

 

 

 

 

TABLE OF CONTENTS

Page          

 

ARTICLE 1.   DEFINITIONS
Section 1.01.	Certain Terms Defined	1
ARTICLE 2.   SECURITIES
Section 2.01.	Forms Generally	8
Section 2.02.	Form of Trustee’s Certification of Authentication	9
Section 2.03.	Amount Unlimited; Issuable in Series	9
Section 2.04.	Authentication and Delivery of Securities	12
Section 2.05.	Execution of Securities	13
Section 2.06.	Certificate of Authorization	14
Section 2.07.	Denomination and Date of Securities; Payments of Interest	14
Section 2.08.	Registration, Transfer and Exchange	15
Section 2.09.	Mutilated, Defaced, Destroyed, Lost and Stolen Securities	17
Section 2.10.	Cancellation of Securities	19
Section 2.11.	Temporary Securities	19
Section 2.12.	CUSIP Numbers, ISINs and Common Codes	20
ARTICLE 3.   COVENANTS OF THE ISSUER AND THE TRUSTEE
Section 3.01.	Payment of Principal and Interest	21
Section 3.02.	Offices for Payments, etc	21
Section 3.03.	Appointment to Fill a Vacancy in Office of Trustee	22
Section 3.04.	Paying Agents	22
Section 3.05.	Certificates of the Issuer	23
Section 3.06.	Securityholders Lists	24
Section 3.07.	Reports by the Issuer	24
Section 3.08.	Reports by the Trustee	25
Section 3.09.	Calculation of Original Issue Discount	25
ARTICLE 4.   REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01.	Event of Default; Acceleration of Maturity; Waiver of Default	25
Section 4.02.	Collection of Indebtedness by Trustee; Trustee May Prove Debt	29
Section 4.03.	Application of Proceeds	32
Section 4.04.	Suits for Enforcement	34
Section 4.05.	Restoration of Rights on Abandonment of Proceeding	34
Section 4.06.	Limitations on Suits by Securityholder	35
Section 4.07.	Unconditional Right of Securityholders to Institute Certain Suits	36
Section 4.08.	Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default	36
Section 4.09.	Control by Securityholders	36
Section 4.10.	Waiver of Past Defaults	37
Section 4.11.	Trustee to Give Notice of Default, But May Withhold in Certain Circumstances	38
Section 4.12.	Right of Court to Require Filing of Undertaking to Pay Costs	39
ARTICLE 5.   CONCERNING THE TRUSTEE
Section 5.01.	Duties and Responsibilities of the Trustee; During Default; Prior to Default	40
Section 5.02.	Certain Rights of the Trustee	41
Section 5.03.	Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof	43
Section 5.04.	Trustee and Agents May Hold Securities; Collections, etc	43
Section 5.05.	Moneys Held by Trustee	43
Section 5.06.	Compensation and Indemnification of Trustee and Its Prior Claim	43
Section 5.07.	Right of Trustee to Rely on Officers’ Certificate, etc	45
Section 5.08.	Persons Eligible for Appointment as Trustee	46
Section 5.09.	Resignation and Removal; Appointment of Successor Trustee	47
Section 5.10.	Acceptance of Appointment By Successor Trustee	49
Section 5.11.	Merger, Conversion, Consolidation or Succession to Business of Trustee	49
ARTICLE 6.   CONCERNING THE SECURITYHOLDERS
Section 6.01.	Evidence of Action Taken by Securityholders	50
Section 6.02.	Proof of Execution of Instruments and of Holding of Securities; Record Date	50
Section 6.03.	Holders to Be Treated as Owners	51
Section 6.04.	Securities Owned by Issuer Deemed Not Outstanding	51
Section 6.05.	Right of Revocation of Action Taken	52
ARTICLE 7.   SUPPLEMENTAL INDENTURES
Section 7.01.	Supplemental Indentures Without Consent of Securityholders	53
Section 7.02.	Supplemental Indentures With Consent of Securityholders	54
Section 7.03.	Effect of Supplemental Indenture	57
Section 7.04.	Documents to Be Given to Trustee	57
Section 7.05.	Notation on Securities in Respect of Supplemental Indentures	58
ARTICLE 8.   CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.01.	Issuer May Consolidate, etc., on Certain Terms	58
Section 8.02.	Successor Substituted	59
Section 8.03.	Reserved	60
Section 8.04.	Reserved	60
Section 8.05.	Opinion of Counsel to Trustee	60
ARTICLE 9.   SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 9.01.	Satisfaction and Discharge of Indenture	60
Section 9.02.	Application by Trustee of Funds Deposited for Payment of Securities	63
Section 9.03.	Repayment of Moneys Held by Paying Agent	64
Section 9.04.	Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years	64
ARTICLE 10.   MISCELLANEOUS PROVISIONS
Section 10.01.	Incorporators, Stockholders, Members, Officers and Directors of Issuer Exempt from Individual Liability	65
Section 10.02.	Provisions of Indenture for the Sole Benefit of Parties and Securityholders	65
Section 10.03.	Successors and Assigns of Issuer Bound by Indenture	65
Section 10.04.	Notices and Demands on Issuer, Trustee and Securityholders	66
Section 10.05.	Officers’ Certificates and Opinions of Counsel; Statements to Be Contained Therein	67
Section 10.06.	Payments Due on Saturdays, Sundays and Holidays	69
Section 10.07.	Conflict of Any Provision of Indenture with Trust Indenture Act of 1939	69
Section 10.08.	New York Law to Govern	69
Section 10.09.	Counterparts	70
Section 10.10.	Effect of Headings	70
Section 10.11.	Securities in a Non-U.S. Currency	70
Section 10.12.	Submission to Jurisdiction	71
Section 10.13.	Judgment Currency	72
ARTICLE 11.   REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.01.	Applicability of Article	73
Section 11.02.	Notice of Redemption; Partial Redemptions	73
Section 11.03.	Payment of Securities Called for Redemption	75
Section 11.04.	Exclusion of Certain Securities from Eligibility for Selection for Redemption	76
Section 11.05.	Mandatory and Optional Sinking Funds	76

 

THIS INDENTURE, dated as of December 6, 2007 among AMARIN CORPORATION PLC (the “Issuer”), a public limited company incorporated under the laws of England and Wilmington Trust Company, as trustee (the “Trustee”).

 

W I T N E S S E T H:

 

WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture;

 

WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide, among other things, for the issuance, authentication, delivery and administration of the Securities;

 

WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;

 

NOW, THEREFORE:

 

In consideration of the premises and the purchases of the Securities by the holders thereof, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:

 

ARTICLE 1.

 

DEFINITIONS

 

Section 1.01  Certain Terms Defined .  The following terms (except as otherwise expressly provided herein or in any indenture supplemental hereto, or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section.  All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939 or the definitions of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, including terms defined therein by reference to the Securities Act of 1933 (except as herein otherwise expressly provided or unless the context otherwise clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture.  All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles” means such accounting principles as are generally accepted at the time of any computation.  The words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.  The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.

 

“Authorized Agent” shall have the meaning set forth in Section 10.12.

 

“Bankruptcy Law” means Title 11, United States Code, or any similar U.S. Federal, state or any foreign law for the relief of debtors.

 

“Bearer Security” means any Security other than a Registered Security.

 

“Board” means the board of directors or the board of managers of the Issuer, or any other body or Person authorized by the organizational documents or by the members of the Issuer to act for it.

 

“Board Resolution” means one or more resolutions, certified by the secretary of the Board to have been duly adopted or consented to by the Board and to be in full force and effect, and delivered to the Trustee.

 

“Business Day” means, with respect to any Security, a day that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized by law or regulation to close.

 

“Capital Stock” means:

 

(1)           in the case of a corporation or a company, corporate stock or shares;

 

(2)           in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock or shares;

 

(3)           in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

(4)           any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.

 

“Corporate Trust Office” means the office(s) of the Trustee located in New York, New York, London England or Wilmington, Delaware as applicable at which at any particular time its corporate trust business shall be administered of this Indenture is located in Wilmington Delaware.

 

“Depositary” means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that series.

 

“Dollar” means the coin or currency of the United States of America as at the time of payment that is legal tender for the payment of public and private debts.

 

“Event of Default” means any event or condition specified as such in Section 4.01.

 

“Holder”, “Holder of Securities”, “Securityholder” or other similar terms mean the registered holder of any Security.

 

“Indenture” means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.

 

“Interest” means, when used with respect to non-interest bearing Securities, interest payable after maturity.

 

“Issuer” means (except as otherwise provided in Article 5) Amarin Corporation plc, a public limited company incorporated under the laws of England, and, subject to Article 8, its successors and assigns.

 

“Judgment Currency” shall have the meaning set forth in Section 10.13.

 

“New York Banking Day” shall have the meaning set forth in Section 10.13.

 

“Non-U.S. Currency” means a currency issued by the government of a country other than the United States (or any currency unit comprised of any such currencies).

 

“Officers’ Certificate” means a certificate (i) signed by any two officers of the Issuer authorized by the Board to execute any such certificate and (ii) delivered to the Trustee.  Each such certificate shall comply with Section 314 of the Trust Indenture Act of 1939.

 

“Opinion of Counsel” means an opinion in writing signed by legal counsel to the Issuer who may be an employee of or counsel to the Issuer and who shall be reasonably satisfactory to the Trustee.  Each such opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 10.05, if and to the extent required hereby.

 

“Original Issue Date” of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.

 

“Original Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.

 

“Outstanding”, when used with reference to Securities, shall, subject to the provisions of Section 6.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:

 

(1)           Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(2)           Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the holders of such Securities (if the Issuer shall act as its own paying agent), provided that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and

 

(3)           Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.09 (except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer).

 

In determining whether the holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization or government or any agency or political subdivision thereof.

 

“Principal” whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium, if any”.

 

“Registered Global Security”, means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for such series in accordance with Section 2.03, and bearing the legend prescribed by the applicable supplemental indenture.

 

“Registered Security” means any Security registered on the Security register of the Issuer.

 

“Required Currency” shall have the meaning set forth in Section 10.13.

 

“Responsible Officer” when used with respect to the Trustee means any officer of the Trustee, having direct responsibility for this Indenture and also means, with respect to a par-

 

ticular corporate trust matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with that particular subject.

 

“Security” or “Securities” has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities that have been authenticated and delivered under this Indenture.

 

“Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject to the provisions of Article 5, shall also include any successor trustee.

 

“Trust Indenture Act of 1939” (except as otherwise provided in Sections 7.01 and 7.02) means the Trust Indenture Act of 1939 as amended, as in force at the date as of which this Indenture was originally executed.

 

“U.S. Government Obligations” shall have the meaning set forth in Section 9.01.

 

“vice president” when used with respect to the Issuer or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title of “vice president”.

 

“Yield to Maturity” means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.

 

ARTICLE 2.

 

SECURITIES

 

Section 2.01.  Forms Generally .  The Securities of each series shall be substantially in such form (not inconsistent with this Indenture) as shall be established by or pursuant to a resolution of the Board or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities, as evidenced by their execution of the Securities.

 

The definitive Securities shall be printed or lithographed on security printed paper or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.

 

Section 2.02.  Form of Trustee’s Certification of Authentication .  The Trustee’s certificate of authentication on all Securities shall be in substantially the following form:

 

This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.

 

 

WILMINGTON TRUST COMPANY,

                                               as Trustee

 

By:      ______________________________________

           Authorized Signatory

                                                                                     

 

 

Section 2.03.  Amount Unlimited; Issuable in Series .  The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series and unless provided for otherwise in an indenture supplemental hereto, each such series shall rank equally and pari passu with all other unsecured and unsubordinated debt of the Issuer.  There shall be established in or pursuant to a resolution of the Board and set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,

 

(1)           the designation of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);

 

(2)           any limit on the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03);

 

(3)           the percentage or percentages of the principal amount at which the debt securities will be issued;

 

(4)           if other than Dollars, the coin or currency in which the Securities of that series are denominated (including, but not limited to, any Non-U.S. Currency);

 

(5)           the date or dates on which the principal of the Securities of the series is payable;

 

(6)           the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate shall be determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;

 

(7)           the place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided in Section 3.02);

 

(8)           the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise;

 

(9)           the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption sinking fund or analogous provisions

 

or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;

 

(10)           if other than denominations of $1,000 and any multiple thereof, the denominations in which Securities of the series shall be issuable;

 

(11)           if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 4.01 or provable in bankruptcy pursuant to Section 4.02;

 

(12)           if other than the coin or currency in which the Securities of that series are denominated, the coin or currency in which payment of the principal of or interest on the Securities of such series shall be payable;

 

(13)           if the principal of or interest on the Securities of such series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;

 

(14)           if the amount of payments of principal of and interest on the Securities of the series may be determined with reference to an index based on a coin or currency other than that in which the Securities of the series are denominated, or with reference to any currencies, securities or baskets of securities, commodities or indices, the manner in which such amounts shall be determined;

 

(15)           if the Holders of the Securities of the series may convert or exchange the Securities of the series into or for securities of the Issuer or of other entities or other property (or the cash value thereof), the specific terms of and period during which such conversion or exchange may be made;

 

(16)           whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable in whole or in part in the form of Registered Global Securities) or Bearer Securities (with or without coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Bearer Securities or Registered Securities or the payment of interest thereon and, if other than as provided herein, the terms upon which Bearer Securities of any series may be exchanged for Registered Securities of such series and vice versa;

 

(17)           the identity of the Depositary;

 

(18)           whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series held by a Person who is not a U.S. Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such additional amounts;

 

(19)           if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;

 

(20)           any trustees, depositaries, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Securities of such series;

 

(21)           any applicable United States federal income tax and English income tax consequences, including, but not limited to: whether and under what circumstances the Issuer will pay additional amounts on Securities for any tax, assessment or governmental charge withheld or deducted and, if so, whether it will have the option to redeem those Securities rather than pay the additional amounts; tax considerations applicable to any discounted Securities or to Securities issued at par that are treated as having been issued at a discount for United States federal income tax purposes; and tax considerations applicable to any Securities denominated and payable in foreign currencies;

 

(22)           whether the Securities of such series will be secured;

 

(23)           any applicable selling restrictions;

 

(24)           whether the Securities of such series will be entitled to the benefits of guarantees;

 

(25)           any other events of default, modifications or elimination of any acceleration rights, or covenants with respect to the Securities of such series and any terms required by or advisable under applicable laws or regulations; and

 

(26)           any other terms of the Securities of such series.

 

All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board or in any such indenture supplemental hereto.  All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to such Board Resolution or in any such indenture supplemental hereto.

 

Section 2.04.  Authentication and Delivery of Securities .  At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer, signed by any two officers of the Issuer authorized by the Board to execute any such order, without any further action by the Issuer.  In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities the Trustee shall be entitled to receive, and (subject to Section 5.01) shall be fully protected in relying upon:

 

(1)           a certified copy of any resolution or resolutions of the Board authorizing the action taken pursuant to the resolution or resolutions delivered under clause 2.04(b) below;

 

(2)           a copy of any resolution or resolutions of the Board relating to such series, in each case certified by the Secretary or an Assistant Secretary of the Issuer;

 

(3)           an executed supplemental indenture, if any;

 

(4)           an Officers’ Certificate setting forth the form and terms of the Securities as required pursuant to Sections 2.01 and 2.03, respectively and prepared in accordance with Section 10.05;

 

(5)           an Opinion of Counsel, prepared in accordance with Section 10.05, to the effect that

 

(a)           the form or forms and terms of such Securities have been established by or pursuant to a resolution of the Board or by a supplemental indenture as permitted by Sections 2.01 and 2.03 in conformity with the provisions of this Indenture;

 

(b)           such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer; and

 

(c)           all laws and requirements in respect of the execution and delivery by the Issuer of the Securities have been complied with; and

 

(d)           covering such other matters as the Trustee may reasonably request.

 

The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders.

 

Section 2.05.  Execution of Securities .  The Securities shall be signed on behalf of the Issuer by any two officers of the Issuer authorized by the Board to execute such Securities, which Securities may, but need not, be attested.  Such signatures may be the manual or facsimile signatures of the present or any future such officers.  Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.

 

In case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and deliv-

 

ered or disposed of as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security may be signed on behalf of the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer.

 

Section 2.06.  Certificate of Authorization .  Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.

 

Section 2.07.   Denomination and Date of Securities; Payments of Interest .  The Securities shall be issuable as registered securities without coupons and in denominations as shall be specified as contemplated by Section 2.03.  In the absence of any such specification with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any multiple thereof.  The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine with the approval of the Trustee as evidenced by the execution and authentication thereof.

 

Each Security shall be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the dates, in each case, which shall be specified as contemplated by Section 2.03.

 

The person in whose name any Security of any series is registered at the close of business on any record date applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such defaulted interest shall be paid to the persons in whose names Outstanding Securities for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the holders of Securities not less than 15 days preceding such subsequent record date.  The term “record date” as used with respect to any interest payment date (except a date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such interest payment date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day.

 

Section 2.08.   Registration, Transfer and Exchange .  The Issuer will keep or cause to be kept at each office or agency to be maintained for the purpose as provided in Section 3.02 a register or registers in which, subject to such reasonable regulations as it may prescribe, it

 

will register, and will register the transfer of, Securities as in this Article provided.  Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time.  At all reasonable times such register or registers shall be open for inspection by the Trustee.

 

Upon due presentation for registration of transfer of any Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of the same series in authorized denominations for a like aggregate principal amount.

 

Any Security or Securities of any series may be exchanged for a Security or Securities of the same series in other authorized denominations, in an equal aggregate principal amount.  Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Issuer for the purpose as provided in Section 3.02, and the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities of the same series which the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.

 

All Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the holder or his attorney duly authorized in writing.

 

The Issuer or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities.  No service charge shall be made for any such transaction.

 

The Issuer shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days next preceding the first mailing of notice of redemption of Securities of such series to be redeemed, or (b) any Securities selected, called or being called for redemption except, in the case of any Security where notice has been given that such Security is to be redeemed in part, the portion thereof not so to be redeemed.

 

All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

Section 2.09.  Mutilated, Defaced, Destroyed, Lost and Stolen Securities .  In case any temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen.  In every case the applicant for a substitute Security shall furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be required by them to

 

indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof in the case of mutilation or defacement shall surrender the Security to the Trustee or such agent.

 

Upon the issuance of any substitute Security, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee or its agent) connected therewith.  In case any Security which has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.

 

Every substitute Security of any series issued pursuant to the provisions of this section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder.  All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

 

Section 2.10.  Cancellation of Securities .  All Securities surrendered for payment, redemption, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture.  The Trustee shall dispose of cancelled Securities held by it in accordance with its procedures for the disposition of cancelled Securities and deliver if pursuant to the Issuer’s written request a certificate of disposition to the Issuer.  If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.

 

Section 2.11.  Temporary Securities .  Pending the preparation of definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee).  Temporary Securities of any series shall be issu-

 

able as registered Securities without coupons, of any authorized denomination, and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of the Trustee.  Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate.  Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities.  Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of the same series of authorized denominations.  Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series unless otherwise established pursuant to Section 2.03.

 

Section 2.12.  CUSIP Numbers , ISINs and Common Codes .  The Issuer in issuing the Securities may use one or more “CUSIP” numbers “ISINs” and/or Common Codes, and, if so, the Trustee shall use such CUSIP numbers, ISINs and Common Codes in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.  The Issuer will promptly notify the Trustee in writing of any change in the CUSIP numbers, ISINs and/or Common Codes.

 

ARTICLE 3.

 

COVENANTS OF THE ISSUER AND THE TRUSTEE

 

Section 3.01.  Payment of Principal and Interest .  The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and interest on, each of the Securities of such series (together with any additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective times and in the manner provided in such Securities.  Subject to any other provisions that may be established pursuant to Section 2.03, the interest on Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to or upon the written order of the Holders thereof and, at the option of the Issuer, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the registry books of the Issuer.

 

Section 3.02.  Offices for Payments, etc .  So long as any of the Securities remain outstanding, the Issuer will maintain in the Borough of Manhattan, The City of New York, Wilmington, Delaware, the following for each series: an office or agency (a) where the Securities may be presented for payment, (b) where the Securities may be presented for registration of transfer and for exchange as in this Indenture provided and (c) where notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served.  The Issuer will

 

give to the Trustee written notice of the location of any such office or agency and of any change of location thereof.  Unless otherwise specified in accordance with Section 2.03, the Issuer hereby initially designates the Corporate Trust Office of the Trustee, as the office to be maintained by it for each such purpose.  In case the Issuer shall fail to so designate or maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Corporate Trust Office.

 

The Issuer may from time to time designate one or more additional offices or agencies where the Securities of a series may be presented for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and pursuant to Section 2.03 and where the Securities of that series may be presented for registration of transfer as provided in this Indenture, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain the agencies provided for in this Section.  The Issuer will give to the Trustee prompt written notice of any such designation or rescission thereof.

 

Section 3.03.  Appointment to Fill a Vacancy in Office of Trustee .  The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 5.09, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.

 

Section 3.04.  Paying Agents .  Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,

 

(1)           that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the holders of the Securities of such series or of the Trustee,

 

(2)           that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and

 

(3)           that it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the continuance of the failure referred to in clause 3.04(b) above.

 

The Issuer will, on or prior to each due date of the principal of or interest on the Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify the Trustee of any failure to take such action.

 

If the Issuer shall act as its own paying agent with respect to the Securities of any series, it will, on or before each due date of the principal of or interest on the Securities of such

 

series, set aside, segregate and hold in trust for the benefit of the holders of the Securities of such series a sum sufficient to pay such principal or interest so becoming due.  The Issuer will promptly notify the Trustee of any failure to take such action.

 

Anything in this section to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.

 

Anything in this section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this section is subject to the provisions of Section 9.03 and 9.04.

 

Section 3.05.  Certificates of the Issuer .  The Issuer will furnish to the Trustee within 120 days after the end of each fiscal year of the Issuer (beginning with 2008), an Officers’ Certificate of the Issuer, as to the signers’ knowledge of the Issuer’s compliance with all conditions and covenants under this Indenture (such compliance to be determined without regard to any period of grace or requirement of notice provided under this Indenture).  In the event an Officer of the Issuer comes to have actual knowledge of an Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, regardless of the date, the Issuer shall deliver an Officers’ Certificate to the Trustee specifying such Default and the nature and status thereof.

 

Section 3.06.  Securityholders Lists .  If and so long as the Trustee shall not be the Security registrar for the Securities of any series, the Issuer will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the holders of the Securities of such series pursuant to Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after each record date for the payment of interest on such Securities, as hereinabove specified, as of such record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing securities in each year, and (b) at such other times as the Trustee may request in writing, within thirty days after receipt by the Issuer of any such request as of a date not more than 15 days prior to the time such information is furnished.

 

Section 3.07.  Reports by the Issuer .  The Issuer covenants to file with the Trustee, within 15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports that the Issuer may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934.  Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

Section 3.08.  Reports by the Trustee .  Any Trustee’s report required under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or before July 15 in each

 

year following the date hereof, so long as any Securities are outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior thereto.

 

Section 3.09.  Calculation of Original Issue Discount .  The Issuer shall provide to the Trustee on a timely basis such information as the Trustee requires to enable the Trustee to prepare and file any form required to be submitted by the Trustee on behalf of the Issuer with the Internal Revenue Service and the Holders of Securities relating to original issue discount, including, without limitation, Form 1099-OID or any successor form.

 

ARTICLE 4.

 

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT

 

Section 4.01.  Event of Default; Acceleration of Maturity; Waiver of Default .  Unless otherwise established in accordance with Section 2.03 or by any applicable supplemental indenture, “Event of Default” with respect to Securities of any series wherever used herein, means each one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(1)           default in the payment of premium or principal in respect of the Securities; or

 

(2)           default for more than 30 days in the payment of interest in respect of the Securities; or

 

(3)           the failure by the Issuer to perform or observe any other obligations under the Securities which failure continues for the period of 60 days after it receives notice of default stating it is in breach; or

 

(4)           the entry by a court having jurisdiction in the premises of:

 

(a)           a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable Bankruptcy Law; or

 

(b)           a decree or order adjudging the Issuer bankrupt or insolvent, or approving as properly filed a petition seeking  reorganization, arrangement, adjustment or composition of or in respect of the Issuer under any applicable Bankruptcy Law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or

 

(5)           the commencement by the Issuer of a voluntary case or proceeding under any applicable Bankruptcy Law, other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Issuer to the entry of a de-

 

cree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable Bankruptcy Law or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer, or the filing by the Issuer of a petition or answer or consent seeking reorganization or relief under any applicable Bankruptcy Law, or the consent by the Issuer to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or of any substantial part of its property, or the making by the Issuer of an assignment for the benefit or creditors, or the admission by the Issuer in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Issuer expressly in furtherance of any such action; or

 

(6)           any other Event of Default provided in the supplemental indenture or resolution of the Board under which such series of Securities is issued or in the form of Security for such series.

 

Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c) or 4.01(f) above (if the Event of Default under clauses 4.01(c) or 4.01(f) is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case, except for any series the principal of which shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities of all series affected thereby then Outstanding hereunder (treated as one class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such affected series and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable.  Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(c) or 4.01(f) (if the Event of Default under clauses 4.01(c) or 4.01(f) is with respect to all series of Securities at the time Outstanding) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of all the then Outstanding Securities hereunder (treated as one class) for which any applicable supplemental indenture does not prevent acceleration under the relevant circumstances, by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities then Outstanding and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable.  Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(d) or 4.01(e), then the principal and accrued and unpaid interest, and premium of any, with respect to any Securities then Outstanding shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

 

The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of the

 

principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of such series (or of all the Securities, as the case may be) and the principal of any and all Securities of such series (or of all the Securities, as the case may be) which shall have become due otherwise than by acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein--then and in every such case the holders of a majority in aggregate principal amount of all the Securities of each such series (or of all the Securities, as the case may be), then Outstanding (in each case treated as one class), by written notice to the Issuer and the Trustee, may waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.

 

For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.

 

Section 4.02.  Collection of Indebtedness by Trustee; Trustee May Prove Debt .  The Issuer covenants that (a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or otherwise then upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and payable on all Securities of such series for principal or interest, as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); and in

 

addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.

 

Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the registered holders, whether or not the principal of and interest on the Securities of such series be overdue.

 

In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor of such Securities and collect in the manner provided by law out of the property of the Issuer or other obligor of such Securities, wherever situated, the moneys adjudged or decreed to be payable.

 

In case there shall be pending proceedings relative to the Issuer or any other obligor of the Securities under Bankruptcy Law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer, or other obligor of the Securities of any series, or to the creditors or property of the Issuer, or such other obligor, the Trustee, irrespective of whether the principal of any Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:

 

(1)           to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer or other obligor of the Securities of any series, or to the creditors or property of the Issuer or such other obligor,

 

(2)           unless prohibited by applicable law and regulations, to vote on behalf of the holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing similar functions in comparable proceedings, and

 

(3)           to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith.

 

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan or reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.

 

All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the holders of the Securities in respect of which such action was taken.

 

In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the holders of the Securities in respect to which such action was taken, and it shall not be necessary to make any holders of such Securities parties to any such proceedings.

 

Section 4.03.   Application of Proceeds .  Any moneys collected by the Trustee pursuant to this Article in respect of the Securities of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest, upon presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:

 

FIRST:  To the payment of costs and expenses applicable to such series in respect of which monies have been collected, including reasonable compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith;

 

SECOND:  In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;

 

THIRD:  In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest or Yield to Maturity, without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and

 

FOURTH:  To the payment of the remainder, if any, to the Issuer or any other person lawfully entitled thereto.

 

Section 4.04.  Suits for Enforcement .  In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.

 

Section 4.05.  Restoration of Rights on Abandonment of Proceeding .  In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue as though no such proceedings had been taken.

 

Section 4.06.  Limitations on Suits by Securityholder .  No Holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or

 

under or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount of the Securities of each affected series then Outstanding (treated as a single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 4.09; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series.  For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Section 4.07.  Unconditional Right of Securityholders to Institute Certain Suits .  Notwithstanding any other provision in this Indenture and any provision of any Security, the right of any Holder of any Security to receive payment of the principal of and interest on such Security on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

Section 4.08.  Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default .  Except as provided in Section 4.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

No delay or omission of the Trustee or of any Securityholder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 4.06, every power and remedy given by this Indenture or by law to the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.

 

Section 4.09.  Control by Securityholders .  The Holders of a majority in aggregate principal amount of the Securities of each series affected (with all such series voting as a single class) at the time Outstanding shall have the right to direct the time, method, and place of

 

conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture and provided further that (subject to the provisions of Section 5.01) the Trustee shall have the right to decline to follow any such direction if the Trustee shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forebearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 5.01) the Trustee shall have no duty to ascertain whether or not such actions or forebearances are unduly prejudicial to such Holders.

 

Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.

 

Section 4.10.  Waiver of Past Defaults .  Prior to the acceleration of the maturity of any Securities as provided in Section 4.01, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding with respect to which an Event of Default shall have occurred and be continuing (voting as a single class) may on behalf of the Holders of all such Securities waive any past default or Event of Default described in Section 4.01 and its consequences, except a default in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Security affected.  In the case of any such waiver, the Issuer, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

Upon any such waiver, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.

 

Section 4.11.  Trustee to Give Notice of Default, But May Withhold in Certain Circumstances .  The Trustee shall give to the Securityholders of any series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to the Trustee which have occurred with respect to such series, such notice to be transmitted within 90 days after the occurrence thereof, unless such defaults shall have been cured before the giving of such notice (the term “default” or “defaults” for the purposes of this section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided that, except in the case of default in the payment of the principal of or interest on any of the Securities of such series, or in the payment of any sinking or purchase fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees and/or Responsible Officers of the Trustee in good faith

 

determines that the withholding of such notice is in the interests of the Securityholders of such series.

 

Section 4.12.   Right of Court to Require Filing of Undertaking to Pay Costs .  All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit relating to or arising under clauses 4.01(c) or 4.01(f) (if the suit relates to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities Outstanding affected thereby, or in the case of any suit relating to or arising under clauses 4.01(c) or 4.01(f) (if the suit relates to all the Securities then Outstanding), 4.01(d) or 4.01(e), 10% in aggregate principal amount of all Securities Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest on any Security on or after the due date expressed in such Security.

 

ARTICLE 5.

 

CONCERNING THE TRUSTEE

 

Section 5.01.  Duties and Responsibilities of the Trustee; During Default; Prior to Default .  With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a particular series and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture.  In case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee shall exercise with respect to such series of Securities such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

 

No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that

 

(1)           prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred:

 

(a)           the duties and obligations of the Trustee with respect to the  Securities of any series shall be determined solely by the express  provisions of this

 

Indenture, and the Trustee shall not be liable except  for the performance of such duties and obligations as are specifically set  forth in this Indenture, and no implied covenants or obligations shall be  read into this Indenture against the Trustee; and

 

(b)           in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the  requirements of this Indenture; but in the case of any such statements, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty  to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the  accuracy of mathematical calculations or other facts stated therein);

 

(2)           the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

(3)           the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders pursuant to Section 4.09 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.

 

None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.

 

The provisions of this Section 5.01 are in furtherance of and subject to Sections 315 and 316 of the Trust Indenture Act of 1939.

 

Section 5.02.  Certain Rights of the Trustee .  In furtherance of and subject to the Trust Indenture Act of 1939, and subject to Section 5.01:

 

(1)           the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(2)           any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer;

 

(3)           the Trustee may consult with counsel of its selection and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;

 

(4)           the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred therein or thereby;

 

(5)           the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;

 

(6)           prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of all series affected then outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require indemnity satisfactory to it against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer upon demand;

 

(7)           the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder;

 

(8)           whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate;

 

(9)           the Trustee shall not be deemed to have notice of any Event of Default or an event which, with notice or lapse of time or both, would constitute an Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;

 

(10)           the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;

 

(11)           the Trustee may request that the Issuer deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;

 

(12)           the permissive rights of the Trustee shall not be construed as duties; and

 

(13)           in no event shall the Trustee be liable, directly or indirectly, for any special, indirect or consequential damages, even if the Trustee has been advised of the possibility of such damages.

 

Section 5.03.  Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof .  The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer and the Trustee assumes no responsibility for the correctness of the same.  The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities.  The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities or of the proceeds thereof.

 

Section 5.04.   Trustee and Agents May Hold Securities; Collections, etc .  The Trustee or any agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the Trustee or such agent.

 

Section 5.05.  Moneys Held by Trustee .  Subject to the provisions of Section 9.04 hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law.  Neither the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for interest on any moneys received by it hereunder.

 

Section 5.06.  Compensation and Indemnification of Trustee and Its Prior Claim .  The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, compensation as the Issuer and the Trustee shall from time to time agree in writing (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its

 

counsel and of all agents and other persons not regularly in its employ) except to the extent any such expense, disbursement or advance may arise from its negligence or bad faith.  The Issuer also covenants to indemnify the Trustee and each predecessor Trustee and their agents for, and to hold it harmless against, any loss, liability or expense arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in the premises, except to the extent such loss, liability or expense is due to the negligence or bad faith of the Trustee, its agents or employees or such predecessor Trustee.  The obligations of the Issuer under this section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive resignation or removal of the Trustee and the satisfaction and discharge of this Indenture.  Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities, and the Securities are hereby subordinated to such senior claim.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in clauses (d) or (e) of Section 4.01, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.

 

Section 5.07.  Right of Trustee to Rely on Officers’ Certificate, etc .  Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.

 

Section 5.08.  Persons Eligible for Appointment as Trustee .  The Trustee for each series of Securities hereunder shall at all times be a corporation organized and doing business under the laws of the United States of America or the District of Columbia having a combined capital and surplus of at least $25,000,000, and which is eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of 1939.  If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of a federal, state or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.

 

Section 5.09.  Resignation and Removal; Appointment of Successor Trustee .

 

(1)           The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of res-

 

ignation to the Issuer and by mailing notice thereof by first class mail to Holders of the applicable series of Securities at their last addresses as they shall appear on the Security register.  Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees.  If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee at the Issuer’s expense may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

 

(2)           In case at any time any of the following shall occur:

 

(a)           the Trustee shall fail to comply with the provisions of Section  310(b) of the Trust Indenture Act of 1939 with respect to any series of  Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or

 

(b)           the Trustee shall cease to be eligible in accordance with  the provisions of Section 310(a) of the Trust Indenture Act of 1939 and  shall fail to resign after written request therefor by the Issuer or by any Securityholder; or

 

(c)           the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property shall be  appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;

 

then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.

 

(3)           The Holders of a majority in aggregate principal amount of the Securities of each series at the time outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence provided for in Section 6.01 of the action in that regard taken by the Securityholders.

 

(4)           Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 5.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 5.10.

 

Section 5.10.  Acceptance of Appointment By Successor Trustee .  Any successor trustee appointed as provided in Section 5.09 shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 9.04, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations.  Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers.  Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 5.06.

 

If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor Trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts under separate indentures.

 

Upon acceptance of appointment by any successor trustee as provided in this Section 5.10, the Issuer shall mail notice thereof by first-class mail to the Holders of Securities of any series for which such successor trustee is acting as trustee at their last addresses as they shall appear in the Security register.  If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.09.  If the Issuer fails to mail such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Issuer.

 

Section 5.11.  Merger, Conversion, Consolidation or Succession to Business of Trustee .  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation

 

to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be eligible under the provisions of Section 5.08, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.

 

In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.

 

ARTICLE 6.

 

CONCERNING THE SECURITYHOLDERS

 

Section 6.01.  Evidence of Action Taken by Securityholders .  Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee.  Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.

 

Section 6.02.  Proof of Execution of Instruments and of Holding of Securities; Record Date .  Subject to Sections 5.01 and 5.02, the execution of any instrument by a Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.  The holding of Securities shall be proved by the Security register or by a certificate of the registrar thereof.  The Issuer may set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent to any action referred to in Section 6.01, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, only holders of Securities of such series of record on such record date shall be entitled to so vote or give such consent or revoke such vote or consent.

 

Section 6.03.  Holders to Be Treated as Owners .  The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and none of the Issuer, the Trustee or any agent of the Issuer or the Trustee shall be affected by any notice to the contrary.  All such payments so made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security.

 

Section 6.04.  Securities Owned by Issuer Deemed Not Outstanding .  In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Securities which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.  Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities.  In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice.  Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described persons; and, subject to Sections 5.01 and 5.02, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.

 

Section 6.05.  Right of Revocation of Action Taken .  At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security.  Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security.  Any action taken by the Holders of the per-

 

centage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.

 

ARTICLE 7.

 

SUPPLEMENTAL INDENTURES

 

Section 7.01.  Supplemental Indentures Without Consent of Securityholders .  The Issuer, when authorized by a resolution of its Board (which resolutions may provide general authorization for such action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby) and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:

 

(1)           to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series any property or assets;

 

(2)           to evidence the succession of another legal entity to the Issuer or successive successions, and the assumption by the successor legal entity of the covenants, agreements and obligations of the Issuer pursuant to Article 8;

 

(3)           to add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as the Issuer and the Trustee shall consider to be for the protection of the Holders of Securities, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;

 

(4)           to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the Issuer may deem necessary or desirable and which shall not adversely affect the interests of the Holders of the Securities in any material respect;

 

(5)           to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03; and

 

(6)           to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or

 

change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 5.10.

 

The Trustee is hereby authorized to join with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by the provisions of this section may be executed without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 7.02.

 

Section 7.02.  Supplemental Indentures With Consent of Securityholders .  With the consent (evidenced as provided in Article 6) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board (which resolutions may provide general authorization for such action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby), and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series; provided that no such supplemental indenture shall (a) (i) extend the final maturity of any Security, (ii) reduce the principal amount thereof, (iii) reduce the rate or extend the time of payment of interest thereon, (iv) reduce any amount payable on redemption thereof, (v) make the principal thereof (including any amount in respect of original issue discount), or interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms thereof, (vi) modify or amend any provisions for converting any currency into any other currency as provided in the Securities or in accordance with the terms thereof, (vii) reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 4.01 or the amount thereof provable in bankruptcy pursuant to Section 4.02, (viii) modify or amend any provisions relating to the conversion or exchange of the Securities for securities of the Issuer or of other entities or other property (or the cash value thereof), including the determination of the amount of securities or other property (or cash) into which the Securities shall be converted or exchanged, other than as provided in the antidilution provisions or other similar adjustment provisions of the Securities or otherwise in accordance with the terms thereof, or (ix) alter the provisions of Section 10.11 or Section 10.13 or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder, in each case without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected.

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of holders of Securities of such series, with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the holders of Securities of any other series.

 

Upon the request of the Issuer, accompanied by a copy of a resolution of the Board (which resolutions may provide general authorization for such action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby) certified by the secretary or an assistant secretary of the Issuer authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01, the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.

 

It shall not be necessary for the consent of the Securityholders under this section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.

 

Promptly after the execution by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give notice thereof by (a) first class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the registry books of the Issuer or (b) by any other means set forth in such supplemental indenture, setting forth in general terms the substance of such supplemental indenture.  Any failure of the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.

 

Section 7.03.  Effect of Supplemental Indenture .  Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

 

Section 7.04.  Documents to Be Given to Trustee .  In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, in addition to the documents required by Section 10.05, and shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.  The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Section 7.05.  Notation on Securities in Respect of Supplemental Indentures .  Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken by Securityholders.  If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.

 

ARTICLE 8.

 

CONSOLIDATION, MERGER, SALE OR CONVEYANCE

 

Section 8.01.  Issuer May Consolidate, etc., on Certain Terms .  The Issuer covenants that it will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless (i) either the Issuer shall be the continuing legal entity, or the successor legal entity or the Person which acquires by sale or conveyance substantially all the assets of the Issuer (if other than the Issuer) shall expressly assume the due and punctual payment of the principal of and interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Issuer, by supplemental indenture satisfactory to the Trustee, executed and delivered to the Trustee by such successor legal entity, and (ii) the Issuer or such successor legal entity, as the case may be, shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition.

 

Section 8.02.  Successor Substituted .  In case of any such consolidation, merger, sale or conveyance, and following such an assumption by the successor legal entity, all in the manner described in Section 8.01, such successor legal entity shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein.  Such successor legal entity may cause to be signed, and may issue either in its own name or in the name of the Issuer prior to such succession any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor legal entity instead of the Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Securities which such successor legal entity thereafter shall cause to be signed and delivered to the Trustee for that purpose.  All of the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.  Any required changes in phrasing and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.

 

In the event of such assumption following any sale or conveyance in accordance with Section 8.01 and this Section 8.02 (other than a conveyance by way of lease) the Issuer (including any successor legal entity that has been further substituted in accordance with Section

 

8.01 and this Section 8.02) shall be discharged from all obligations and covenants under this Indenture and the Securities and may be liquidated and dissolved.

 

Section 8.03.  Reserved .

 

Section 8.04.  Reserved .

 

Section 8.05.  Opinion of Counsel to Trustee .  The Trustee, subject to the provisions of Sections 5.01 and 5.02, shall receive an Opinion of Counsel and an Officer’s Certificate, prepared in accordance with Section 10.05, as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption, and any such liquidation or dissolution, complies with the applicable provisions of this Indenture.

 

ARTICLE 9.

 

SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS

 

Section 9.01.  Satisfaction and Discharge of Indenture .

 

(1)           If at any time (i) the Issuer shall have paid or caused to be paid the principal of and interest on all the Securities of any series outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.09) as and when the same shall have become due and payable, or (ii) the Issuer shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09) or (iii) (A) all the securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (B) the Issuer shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 9.04) in the case of any series of Securities the payments on which may only be made in United States dollars, direct obligations of the United States of America, backed by its full faith and credit (“U.S. Government Obligations”), maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or a combination thereof, sufficient to pay at maturity or upon redemption all Securities of such series (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09) not theretofore delivered to the Trustee for cancellation, including principal and interest due or to become due on or prior to such date of maturity as the case may be, and if, in any such case, the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer with respect to Securities of such series, then this Indenture shall cease to be of further effect with respect to Securities of such series (except as to (i) rights of registration of transfer and exchange of securities of such series, and the Issuer’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of holders to receive payments of principal thereof and interest thereon upon the original stated due date therefor (but no upon acceleration), and remaining rights of the holders to receive mandatory sinking

 

fund payments, if any, (iv) the rights, obligations and immunities of the Trustee hereunder and (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them), and the Trustee, on demand of the Issuer accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture with respect to such series; provided, that the rights of Holders of the Securities to receive amounts in respect of principal of and interest on the Securities held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange upon which the Securities are listed.  The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.

 

(2)           The following provisions shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution, Officers’ Certificate or indenture supplemental hereto provided pursuant to Section 2.03.  In addition to discharge of the Indenture pursuant to the next preceding paragraph, in the case of any series of Securities the exact amounts (including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause 9.01(b)(i) below, the Issuer shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a series on the 91st day after the date of the deposit referred to in clause 9.01(b)(i) below, and the provisions of this Indenture with respect to the Securities of such series thereto shall no longer be in effect (except as to (1) rights of registration of transfer and exchange of Securities of such series and the Issuer’s right of optional redemption, if any, (2) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of Holders of Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (4) the rights, obligations, duties and immunities of the Trustee hereunder, (5) the rights of the Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (6) the obligations of the Issuer under Section 3.02) and the Trustee, at the expense of the Issuer shall at the Issuer’s request, execute proper instruments acknowledging the same, if:

 

(a)           with reference to this provision the Issuer has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such  series (A) cash in an amount, or (B) in the case of any series of  Securities the payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to principal and interest at such times  and in such amounts as will insure the availability of cash or (C) a  combination thereof, sufficient, in the opinion of a nationally recognized  firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (1) the principal and interest on all Securities of such series and coupons appertaining thereto on each date  that such principal or interest is due and payable and (2) any mandatory sinking fund payments on the dates on which such payments are due and  payable in accordance with the terms of the Indenture and the Securities of  such series;

 

(b)           such deposit will not result in a breach or violation of, or  constitute a default under, any agreement or instrument to which the Issuer is a party or by which it is bound;

 

(c)           the Issuer has delivered to the Trustee an Opinion of Counsel based on the fact that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in the applicable  federal income tax law, in either case to the effect that, and such opinion shall confirm that, the Holders of the Securities of such series and coupons appertaining thereto will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and  discharge and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and  discharge had not occurred; and

 

(d)           the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been  complied with.

 

(3)           The Issuer shall be released from its obligations under Section 8.01 with respect to the Securities of any series, Outstanding, and under any guarantee in respect thereof, on and after the date the conditions set forth below are satisfied (hereinafter, “covenant defeasance”).  For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of any series, and under a guarantee in respect thereof, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in such Sections, whether directly or indirectly by reason of any reference elsewhere herein to such Sections or by reason of any reference in such Sections to any other provision herein or in any other document and such omission to comply shall not constitute an Event of Default under Section 4.01, but the remainder of this Indenture and such Securities and coupons shall be unaffected thereby.  The following shall be the conditions to application of this subsection (c) of this Section 9.01:

 

(a)           the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series, (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (C) a  combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (1) the principal and interest on all Securities of such series and coupons appertaining thereto and (2) any mandatory sinking fund payments on the day on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series;

 

(b)           no Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit or, insofar as subsections 4.01(c) and 4.01(d) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);

 

(c)           such covenant defeasance shall not cause the Trustee to have a  conflicting interest for purposes of the Trust Indenture Act of 1939 with respect to any securities of the Issuer;

 

(d)           such covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer is a party or by which it is bound;

 

(e)           such covenant defeasance shall not cause any Securities then listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted;

 

(f)           the Issuer shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for  federal income tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred; and

 

(g)           the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the covenant defeasance contemplated by this provision have been complied with.

 

Section 9.02.  Application by Trustee of Funds Deposited for Payment of Securities .  Subject to Section 9.04 and any subordination provisions applicable to the Securities, all moneys deposited with the Trustee pursuant to Section 9.01 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law.

 

Section 9.03.  Repayment of Moneys Held by Paying Agent .  In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.

 

Section 9.04.  Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years .  Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of or interest on any Security of any series and not applied but remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable, shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the Security of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.

 

The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S.  Government Obligations deposited pursuant to Section 9.01 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.

 

ARTICLE 10.

 

MISCELLANEOUS PROVISIONS

 

Section 10.01.  Incorporators, Stockholders, Members, Officers and Directors of Issuer Exempt from Individual Liability .  No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, member, officer or director, as such, of the Issuer or of any successor, either directly or through the Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the holders thereof and as part of the consideration for the issue of the Securities.

 

Section 10.02.  Provisions of Indenture for the Sole Benefit of Parties and Securityholders .  Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.

 

Section 10.03.  Successors and Assigns of Issuer Bound by Indenture .  All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.

 

Section 10.04.  Notices and Demands on Issuer, Trustee and Securityholders .  Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address is filed with the Trustee) as follows:

 

If to the Issuer:

 

Amarin Corporation plc

                 7 Curzon Street

                 Mayfair

London WIJ 5HG

                 England

                Attention:  Chief Financial Officer

               Fax:

 

with copies to:

 

Amarin Corporation plc

                 50 Pembroke Road

                 Ballsbridge

                 Dublin 4

                 Ireland

                Attention:  General Counsel

                Fax:

 

Cahill Gordon & Reindel LLP

                 80 Pine Street

                 New York, New York  10005

                Attention:  Christopher T. Cox

                Fax:  (212) 269-5420

 

Any notice, direction, request or demand by the Issuer or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if delivered in person or mailed by first-class mail to the Trustee at Wilmington Trust Company, Rodney Square North 1100 North Market Street, Wilmington, Delaware 19890, Attention:  Corporate Client Services.

 

Where this Indenture provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security register.  In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers

 

of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer or the Securityholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.

 

Section 10.05.  Officers’ Certificates and Opinions of Counsel; Statements to Be Contained Therein .  Upon any application or demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.

 

Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person giving such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement or opinion that such person, on behalf of the Issuer, has made such examination or investigation as is necessary to enable him to express an informed belief or opinion as to whether or not such covenant or condition has been complied with and (d) a statement or opinion as to whether or not such condition or covenant has been complied with.

 

Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.  Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, information with respect to which is in the possession of the Issuer upon the certificate, statement or opinion of or representations by an officer or officers of the Issuer unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.

 

Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.

 

Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.

 

Section 10.06.  Payments Due on Saturdays, Sundays and Holidays .  If the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.

 

Section 10.07.  Conflict of Any Provision of Indenture with Trust Indenture Act of 1939 .  If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939 (an “incorporated provision”), such incorporated provision shall control.

 

Section 10.08.  New York Law to Govern .  This Indenture and each Security shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of law.

 

Section 10.09.  Counterparts .  This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.

 

Section 10.10.  Effect of Headings .  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 10.11.  Securities in a Non-U.S. Currency .  Unless otherwise specified in an Officers’ Certificate delivered pursuant to Section 2.03 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding Securities of any series which are denominated in a coin or currency other than Dollars, then the principal amount of Securities of such series which shall be deemed to be Outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate.  For purposes of this Section 10.11, Market Exchange Rate shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York.  If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in The City of New York or in the country of issue of the currency in question, or such other quotations as the Trustee shall deem appropriate.  The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.

 

All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Issuer and all Holders.

 

Section 10.12.  Submission to Jurisdiction .  The Issuer agrees that any legal suit, action or proceeding arising out of or based upon this Indenture may be instituted in any federal or state court sitting in New York City, and, to the fullest extent permitted by law, waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the jurisdiction of such court in any suit, action or proceeding.  The Issuer, as long as any of the Securities remain Outstanding or the parties hereto have any obligation under this Indenture, shall have an authorized agent (the “Authorized Agent”) in the United States upon whom process may be served in any such legal action or proceeding.  Service of process upon such agent and written notice of such service mailed or delivered to it shall to the extent permitted by law be deemed in every respect effective service of process upon it in any such legal action or proceeding and, if it fails to maintain such agent, any such process or summons may be served by mailing a copy thereof by registered mail, or a form of mail substantially equivalent thereto, addressed to it at its address as provided for notices hereunder.  The Issuer hereby appoints Mr. Donald J. Puglisi, Managing Director, Puglisi & Associates, 850 Library Avenue, Suite 204, Newark, Delaware, as its agent for such purposes, and covenants and agrees that service of process in any legal action or proceeding may be made upon it at such office of such agent.

 

Section 10.13.  Judgment Currency .  The Issuer agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture.  For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.

 

ARTICLE 11.

 

REDEMPTION OF SECURITIES AND SINKING FUNDS

 

Section 11.01.  Applicability of Article .  The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities of such series.

 

Section 11.02.  Notice of Redemption; Partial Redemptions .  Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last addresses as they shall appear upon the registry books.  Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice.  Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.

 

The notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue.  In case any Security of a series is to be redeemed in part only the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.

 

The notice of redemption of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at the expense of the Issuer.

 

On or before the redemption date specified in the notice of redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money or other property sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption.  If less than all the outstanding Securities of a series are to be redeemed, the Issuer will deliver to the Trustee at least 70 days prior to the date fixed for redemption an Officers’ Certificate stating the aggregate principal amount of Securities to be redeemed.

 

If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair, Securities of such series to be redeemed in whole or in part.  Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof.  The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed.  For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.

 

Section 11.03.  Payment of Securities Called for Redemption .  If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided in Sections 5.05 and 9.04, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption.  On presentation and surrender of such Securities at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided that any semiannual payment of interest becoming due on the date fixed for redemption shall be payable to the Holders of such Securities registered as such on the relevant record date subject to the terms and provisions of Sections 2.03 and 2.04 hereof.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.

 

Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.

 

Section 11.04.  Exclusion of Certain Securities from Eligibility for Selection for Redemption .  Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Issuer and delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer.

 

Section 11.05.  Mandatory and Optional Sinking Funds .  The minimum amount of any sinking fund payment provided for by the terms of the Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”.  The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment date”.

 

In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.07, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of such series.  Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities.

 

On or before the sixtieth day next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee a written statement (which need not contain the statements required by Section 10.05) signed by an authorized officer of the Issuer (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series, (b) stating that none of the Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next succeeding sinking fund payment date.  Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with such written statement (or reasonably promptly thereafter if acceptable to the Trustee).  Such written statement shall be irrevocable and upon its receipt by the Trustee the Issuer shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date.  Failure of the Issuer, on or before any such sixtieth day, to deliver such written statement and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this Section.

 

If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer

 

shall so request) with respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption.  If such amount shall be $50,000 or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 is available.  The Trustee shall select, in the manner provided in Section 11.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of such series (or portions thereof) so selected.  Securities of any series which are (a) owned by the Issuer or an entity known by the Trustee to be directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, as shown by the Security register, and not known to the Trustee to have been pledged or hypothecated by the Issuer or any such entity or (b) identified in an Officers’ Certificate at least 60 days prior to the sinking fund payment date as being beneficially owned by, and not pledged or hypothecated by, the Issuer or an entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer shall be excluded from Securities of such series eligible for selection for redemption.  The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 11.02 (and with the effect provided in Section 11.03) for the redemption of Securities of such series in part at the option of the Issuer.  The amount of any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the provisions of this Section.  Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.

 

On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.

 

The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient for such redemption.  Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article 4 and held for the payment of all such Securities.  In case such Event of Default shall have been waived as provided in Section 4.09 or the default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.

 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of December 6, 2007.

 

 

                             EXECUTED AND DELIVERED

                                                                             AS A DEED BY

 

                             AMARIN CORPORATION PLC,

                                                                             AS ISSUER, ACTING BY,

 

 

                             

                                                                             By:  Alan Cooke                             

                                                                                     Name:  Alan Cooke

                                                                                     Title:    Director/President/CFO

 

                                                                               

    By:  /s/ Tom Maher                            

Name:  Tom Maher

Title:    Director/Company Secretary

               

 

                             WILMINGTON TRUST COMPANY, AS TRUSTEE

 

 

By:  /s/ Patrick Healy                             

Name:  Patrick Healy

Title:    Vice President

 

Exhibit 99.3

 

AMARIN CORPORATION PLC,

 

as Issuer

 

and

 

WILMINGTON TRUST COMPANY,

 

as Trustee

 

________________

 

FIRST SUPPLEMENTAL SENIOR INDENTURE

 

Dated as of December 6, 2007

 

to the Senior Indenture dated as of December 6, 2007

 

_______________

 

Creating the series of debentures designated

 

8% Convertible Debentures due 2010

 

TABLE OF CONTENTS

 

		Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1	Definitions	1
Section 1.2	Incorporation by Reference of Trust Indenture Act	7
Section 1.3	Rules of Construction	8
ARTICLE 2 THE DEBENTURES
Section 2.1	Title and Terms	8
Section 2.2	Form of Debentures	9
Section 2.3	Global Debentures Legend	10
Section 2.4	Defaulted Interest	10
Section 2.5	Book-Entry Provisions for the Global Debentures	11
ARTICLE 3 ADDITIONAL COVENANTS
Section 3.1	Corporate Existence	12
Section 3.2	Waiver of Stay or Extension Laws	12
Section 3.3	Limitation on Incurrence of Subsidiary Indebtedness	12
Section 3.4	Prohibition on Debenture Holder Short Selling	13
ARTICLE 4 REDEMPTION OF DEBENTURES
Section 4.1	Mandatory Redemption	13
Section 4.2	Optional Redemption	13
Section 4.3	Selection of Debentures for Partial Repayment	13
Section 4.4	Notice of Redemption	14
Section 4.5	Deposit of Redemption Price	14
ARTICLE 5 CONVERSION OF DEBENTURES
Section 5.1	Conversion Right and Conversion Price	14
Section 5.2	Exercise of Conversion Right	15
Section 5.3	Fractions of ADSs	16
Section 5.4	Adjustment of Conversion Rate	16
Section 5.5	Notice of Adjustments of Conversion Rate	18
Section 5.6	Issuer to Reserve Ordinary Shares	18
Section 5.7	Covenant as to Ordinary Shares	18
Section 5.8	Issuer’s Covenant Regarding the Delivery of ADSs	18
Section 5.9	Distribution of Ordinary Shares Instead of ADSs	18
Section 5.10	Taxes on Conversions	19
Section 5.11	Cancellation of Converted Debentures	19
Section 5.12	Obligations of the Conversion Agent	19
Section 5.13	Responsibility of Trustee and Conversion Agent for Conversion Provisions	22
ARTICLE 6 MISCELLANEOUS PROVISIONS
Section 6.1	Scope of Supplemental Indenture	22
Section 6.2	Provisions of Supplemental Indenture for the Sole Benefit of Parties and Holders of Debentures	23
Section 6.3	Successors and Assigns of Issuer Bound by Supplemental Indenture	23
Section 6.4	Notices and Demands on Issuer, Trustee and Holders of Debentures	23
Section 6.5	Officers’ Certificates and Opinions of Counsel; Statements to be Contained Therein	24
Section 6.6	Payments Due on Saturdays, Sundays and Holidays	24
Section 6.7	Conflict of any Provisions of Supplemental Indenture with Trust Indenture Act of 1939	24
Section 6.8	New York Law to Govern	24
Section 6.9	Counterparts	25
Section 6.10	Effect of Headings	25
Section 6.11	The Trustee	25
ARTICLE 7 SUPPLEMENTAL INDENTURES
Section 7.1	Without Consent of Holders	25
ARTICLE 8 SATISFACTION AND DISCHARGE
Section 8.1	Satisfaction and Discharge	26

FIRST SUPPLEMENTAL INDENTURE, dated as of December 6, 2007, between Amarin Corporation plc, a public limited company registered in England and Wales (the “ Issuer ”), and Wilmington Trust Company, as trustee (the “ Trustee ”).

 

W I T N E S S E T H:

 

WHEREAS, the Issuer has heretofore executed and delivered to the Trustee a Senior Debt Indenture, dated as of December 6, 2007 (the “ Base Indenture ”), providing for the issuance from time to time of one or more series of its senior unsecured debentures, notes or other evidences of indebtedness (the “ Securities ”);

 

WHEREAS, Section 7.01(e) of the Base Indenture provides that the Issuer and the Trustee may from time to time enter into one or more indentures supplemental thereto to establish the form or terms of Securities of a new series;

 

WHEREAS, the Issuer, pursuant to the foregoing authority, proposes in and by this Supplemental Indenture (this “Supplemental Indenture” and, together with the Base Indenture, as amended and supplemented from time to time, the “Indenture”) to supplement the Base Indenture insofar as it will apply only to the 8% Convertible Debentures due 2010 (the “Debentures”) issued hereunder (and not to any other series); and

 

WHEREAS, all things necessary have been done to make the Debentures, when executed by the Issuer and authenticated and delivered hereunder and duly issued by the Issuer, the valid obligations of the Issuer, and to make this Supplemental Indenture a valid agreement of the Issuer, in accordance with their and its terms;

 

NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchases of the Debentures by the Holders thereof, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Debentures as follows:

 

 

ARTICLE 1

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.1    Definitions .

 

For all purposes of this Supplemental Indenture and the Debentures, the following terms are defined as follows:

 

“ ADSs ” means the American Depositary Shares representing Deposited Securities, each ADS representing (as of the date hereof) one (1) Ordinary Share.

 

“ Affiliate ” means, with respect to any person or entity, any person or entity directly or indirectly controlling, controlled by, or under common control with such other person or entity.  For purposes of this definition, “control,” when used with respect to any person or entity, means the power to direct the management and policies of such person or entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have correlative meanings.

 

“ Board ” means the board of directors of the Issuer, or any other body or Person authorized by the organizational documents of the Issuer to act for it.

 

“ Board Resolution ” means one or more resolutions, certified by the secretary of the Board to have been duly adopted or consented to by the Board and to be in full force and effect, and delivered to the Trustee.

 

“ Business Day ” means, with respect to any Debenture, any day other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in New York City or London, England.

 

“ Change of Control ” means a “person” or “group” (each within the meaning of Section 13(d)(3) of the Exchange Act) has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of shares representing more than 50% of the total voting power in the aggregate of classes of the Issuer’s capital stock entitled to vote generally in the election of directors; provided that a Change of Control shall not be deemed to occur in connection with a transaction where the holders of the Issuer’s capital stock immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in the elections of directors of such person immediately after giving effect to such transaction.

 

“ Conversion Agent ” means any Person authorized by the Issuer to convert Debentures in accordance with Article 5.  The initial Conversion Agent under this Supplemental Indenture shall be Citibank, N.A. — London Branch located, as of the date hereof, at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, United Kingdom.

 

“ Conversion Date ” means the date that a Debenture is converted into ADSs pursuant to the terms of the Indenture.

 

“ Conversion Notice ” means a conversion notice substantially in the form attached to the Debenture.

 

“ Conversion Price ” means, with respect to the Debentures, $1,000.00 divided by the Conversion Rate in effect.

 

“ Conversion Rate ” has the meaning specified in Section 5.1(b).

 

“ Corporate Trust Office ” means the office of the Paying Agent located in the Borough of Manhattan, New York City or in London, England, at which at any particular time its corporate trust business shall be administered (which at the date of this Supplemental Indenture is located at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, United Kingdom).

 

“ Debenture Depositary ” shall mean the Depositary (as defined in the Base Indenture) appointed by the Issuer from time to time in respect of a Global Debenture issued pursuant to the terms of this Supplemental Indenture.

 

“ Default ” means an event which is, or after notice or lapse of time or both would be, an Event of Default.

 

“ Defaulted Interest ” has the meaning specified in Section 2.3.

 

“ Deposit Agreement ” means the Deposit Agreement dated March 29, 1993 among the Issuer, Citibank, N.A., as Depositary, and the Holder from time to time of the ADSs, as amended on as of October 8, 1998 and as of September 25, 2002, as supplemented on March 29, 2006, April 11, 2006, October 16, 2007 and December 5, 2007 and as the same may be further amended and supplemented in accordance with its terms hereafter.

 

“ Depositary ” means Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, and any successor as depositary under the Deposit Agreement.

 

“ Deposited Securities ” means Ordinary Shares deposited or deemed to be deposited under the Deposit Agreement and any and all other securities, property and cash received by the Depositary or the custodian in respect thereof and at such time held under the Deposit Agreement.

 

“ Dollar ” or “ U.S. Dollar ” means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

 

“ Down-round Price ” has the meaning specified in Section 5.4(c).

 

“ Event of Default ” with respect to the Debentures means those events identified as “Events of Default” in Section 4.01 of the Base Indenture, including without limitation Issuer’s failure to perform or observe its obligations under Section 3.3, Section 4.1(a) or Section 4.1(b).

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

“ Exempt Issuance ” means the issuance of (a) Ordinary Shares or ADSs or options to employees, officers or directors of the Issuer 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 Debentures or the warrants issued as a unit with the Debentures and/or other securities exercisable or exchangeable for or convertible into Ordinary Shares or ADSs issued and outstanding on the date of this Supplemental Indenture, provided that such securities have not been amended since the date of this Supplemental Indenture 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 Ordinary Shares issued or to be issued to Dan Fischer and Ordinary Shares upon exercise thereof, (d) Ordinary Shares or ADSs in connection with the acquisition by the Issuer of Ester Neurosciences Ltd., an Israeli company, pursuant to the definitive agreement relating thereto, and payment of related fees, (e) the units offered by the prospectus supplement relating to the Debentures and equity financings concurrently being offered by the Issuer as described in such prospectus supplement, and (f) securities issued pursuant to acquisitions or strategic transactions approved by a majority of

 

the disinterested directors of the Issuer, 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 Issuer and in which the Issuer receives benefits in addition to the investment of funds, but shall not include a transaction in which the Issuer is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.

 

“ Global Debenture ” has the meaning specified in Section 2.2(b).

 

“ Holder ”, “ Holder of Debentures ” or other similar terms means the registered holder of any Debenture.

 

“ Indebtedness ” means (a) all obligations of a Person for borrowed money or with respect to deposits or advances of any kind; (b) all obligations of a Person evidenced by bonds, debentures, notes or similar instruments; (c) all obligations of a Person upon which interest charges are customarily paid; (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person; (e) all obligations of a Person in respect of the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business); (f) all guarantees by a Person of the Indebtedness of any other Person, (g) all capital lease obligations of a Person; (i) all obligations, contingent or otherwise, of a Person as an account party or applicant in respect of letters of credit and letters of guarantee; and (j) all obligations, contingent or otherwise, of a Person in respect of bankers’ acceptances.

 

“ Interest Payment Date ” means each of March 31, June 30, September 30 and December 31, beginning March 31, 2008; provided , however , that if any such date is not a Business Day, the Interest Payment Date shall be the next succeeding Business Day.

 

“ Interest Rate ” means 8% per annum.

 

“ Issuer ” means the company named as the “Issuer” in the first paragraph of this Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Issuer” shall mean such successor Person.

 

“ Maturity ” means the date on which the principal of the Debentures becomes due and payable as therein or herein provided, whether at the Stated Maturity or by acceleration, conversion, call for redemption or otherwise.

 

“ Nasdaq Capital Market ” means the Nasdaq Capital Market or any successor national securities exchange or automated over-the-counter trading market in the United States.

 

“ Officer of the Issuer ” mean the Chairman of the Board, the Chief Executive Officer, Chief Operating Officer, the President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, any Vice President, the Secretary or any Assistant Secretary of the Issuer, respectively, or a duly authorized attorney-in-fact.

 

“ Ordinary Shares ” means ordinary shares, £0.05 par value per share, of the Issuer, each Ordinary Share represented (as of the date hereof) by one ADS.

 

“ Paying Agent ” means an office or agency where Debentures may be presented for payment.  The term “Paying Agent” includes any additional paying agent.  The initial Paying Agent under this Supplemental Indenture shall be Citibank, N.A. — London Branch located, as of the date hereof, at Citigroup Center, Canada Square, Canary Wharf, London E14 5LB, United Kingdom.

 

“ Permitted Indebtedness ” of a Person means (a) Indebtedness existing on the issue date of the Debentures and extensions, renewals and replacements of any such Indebtedness; (b) intercompany Indebtedness; (c) Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including capital lease obligations, and any Indebtedness assumed by such Person in connection with the acquisition of any such assets or secured by a lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness; (d) Indebtedness of any Person that becomes a subsidiary after the date hereof, provided that such Indebtedness exists at the time such Person becomes a subsidiary and is not created in contemplation of or in connection with such Person becoming a subsidiary; (e) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business; (f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations, in each case provided in the ordinary course of business; (g) Indebtedness representing deferred compensation to employees incurred in the ordinary course of business; (h) Indebtedness pursuant to hedging agreements not entered into for speculative purposes; and (i) other types of Indebtedness similar to the foregoing entered into for the purpose of working capital management.

 

“ Physical Debentures ” means Debentures issued in definitive, fully registered form without interest coupons, substantially in the form of Exhibit A hereto other than Global Debentures.

 

“ Predecessor Debenture ” of any particular Debenture means every previous Debenture evidencing all or a portion of the same debt as that evidenced by such particular Debenture; and, for the purposes of this definition, any Debenture authenticated and delivered in exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Debenture.

 

“ Record Date ” means either a Regular Record Date or a Special Record Date, as the case may be.

 

“ Redemption Date ”, when used with respect to any Debenture to be redeemed, means the date fixed by the Issuer for such redemption by or pursuant to this Supplemental Indenture.

 

“ Redemption Price ”, when used with respect to any Debenture to be redeemed, means the principal amount of such Debenture to be redeemed pursuant to this Supplemental Indenture plus interest accrued and unpaid to, but excluding, the Redemption Date.

 

“ Registrar ” means the office or agency where Debentures may be presented for registration of transfer or for exchange.

 

“ Regular Record Date ” for the interest on the Debentures payable means March 15, June 15, September 15 and December 15 immediately preceding the applicable Interest Payment Date.

 

“ Securities Act ” means the Securities Act of 1933, as amended.

 

“ Share Transfer Agent ” means an office or agency where Shares may be presented for registration and transfer.  The term “Share Transfer Agent” includes any additional share transfer agent.

 

“ 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 or ADSs).

 

“ Special Record Date ” for the payment of any Defaulted Interest means a date fixed by the Issuer pursuant to Section 2.3.

 

“ Spin Off ” has the meaning specified in Section 5.4(b).

 

“ Spin Off Securities ” has the meaning specified in Section 5.4(b).

 

“ Stated Maturity ” means the date specified in any Debenture as the fixed date for the payment of principal on such Debenture or on which an installment of interest on such Debenture is due and payable.

 

“ subsidiary ” means, with respect to any Person, a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other subsidiaries, or by such Person and one or more other subsidiaries.  For the purposes of this definition only, “voting stock” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.

 

“ TIA ” means the Trust Indenture Act of 1939, as amended, as in effect on the date of this Supplemental Indenture; provided, however , that in the event the TIA is amended after such date, “TIA” means, to the extent such amendment is applicable to this Supplemental Indenture and the Base Indenture, the Trust Indenture Act of 1939, as so amended, or any successor statute.

 

“ Trading Day ” means:

 

(a)           if the applicable security is listed or admitted for trading on the Nasdaq Capital Market, a day on which trades may be made on the Nasdaq Capital Market;

 

(b)           if that security is not so listed on the Nasdaq Capital Market, a day on which the principal U.S. securities exchange on which that security is listed is open for business;

 

(c)           if that security is not so listed on the Nasdaq Capital Market or another U.S. securities exchanges, a day on which the OTC Bulletin Board is open for business;

 

(d)           if that security is not so listed on the Nasdaq Capital Market, another U.S. securities exchange or the OTC Bulletin Board, a day on which the “Pink Sheets” published by the Pink Sheets LLC (or similar organization or agency succeeding to its functions of reporting prices) is open for business; or

 

(e)           if the applicable security is not so listed or quoted, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close.

 

“ Trading Price ” means, for any date, the price determined by the first of the following clauses that applies:  (i) if the Ordinary Shares in the form of ADSs are then listed on the Nasdaq Capital Market or another national securities exchange (a “ Trading Market ”), the daily volume weighted average price of the ADSs for such date (or the nearest preceding trading date) on the Trading Market on which the ADSs are then listed, as reported by Bloomberg Financial LP; (b) if the ADSs are not then listed on a Trading Market and if prices for the ADSs are then quoted on the OTC Bulletin Board, the volume weighted average price of the ADSs for such date (or the nearest preceding trading date) on the OTC Bulletin Board; and (c) if the ADSs are not then listed on the OTC Bulletin Board and if prices for the ADSs are then reported on the “Pink Sheets” published by the Pink Sheets LLC (or similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the ADSs so reported; or (d) in all other cases, the fair market value of an ADS as determined by an independent appraiser selected in good faith by the Issuer.

 

“ Trustee ” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Supplemental Indenture, and thereafter “Trustee” shall mean such successor Trustee.

 

Section 1.2    Incorporation by Reference of Trust Indenture Act .

 

Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Supplemental Indenture.

 

The following TIA terms used in this Indenture have the following meanings:

 

“indenture securities” means the Debentures;

 

“indenture security holder” means a Holder;

 

“indenture to be qualified” means this Supplemental Indenture;

 

“indenture trustee” or “institutional trustee” means the Trustee; and

 

“obligor” on the Debentures means the Issuer.

 

All other TIA terms used in this Supplemental Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule have the meanings assigned to them by such definitions.

 

Section 1.3    Rules of Construction .

 

For all purposes of this Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(a)           the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; and

 

(b)           the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.

 

 

ARTICLE 2

 

THE DEBENTURES

 

Section 2.1    Title and Terms .

 

(a)    The Debentures shall be known and designated as the “8% Convertible Debentures due 2010” of the Issuer.  The aggregate principal amount of Debentures which may be authenticated and delivered under this Supplemental Indenture is limited to $2.75 million, except for Debentures authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of other Debentures pursuant to Section 5.2 of this Supplemental Indenture or Article 2 or 11 of the Base Indenture.  The Debentures shall be issuable in denominations of $1,000.00 or integral multiples thereof.

 

(b)    The Debentures shall mature on December 6, 2010.

 

(c)    Interest on the Debentures shall accrue from December 6, 2007, or from the most recent Interest Payment Date to which interest has been paid, at the Interest Rate, until the principal thereof is paid or made available for payment.  Interest shall be payable semiannually in arrears on each Interest Payment Date.

 

(d)    Interest on the Debentures shall be computed on the basis of a 360-day year of twelve 30-day months.

 

(e)    A Holder of any Debenture at the close of business on a Regular Record Date shall be entitled to receive interest on such Debenture on the corresponding Interest Payment Date.  A Holder of any Debenture which is converted after the close of business on a Regular Record Date and prior to the corresponding Interest Payment Date (other than any Debenture

 

whose Maturity is prior to such Interest Payment Date) shall be entitled to receive interest on the principal amount of such Debenture, notwithstanding the conversion of such Debenture prior to such Interest Payment Date.  However, any such Holder which surrenders any such Debenture for conversion during the period between the close of business on such Regular Record Date and ending with the opening of business on the corresponding Interest Payment Date shall be required to pay the Issuer an amount equal to the interest on the principal amount of such Debenture so converted, which is payable by the Issuer to such Holder on such Interest Payment Date, at the time such Holder surrenders such Debenture for conversion.  Notwithstanding the foregoing, any such Holder which surrenders for conversion any Debenture which has been called for redemption by the Issuer in a notice of redemption given by the Issuer pursuant to Article 4 shall be entitled to receive (and retain) such accrued interest to, but excluding, the Redemption Date and need not pay the Issuer an amount equal to the interest on the principal amount of such Debenture so converted at the time such Holder surrenders such Debenture for conversion.

 

(f)    Principal of and interest on Global Debentures shall be payable by the Issuer to the Paying Agent in immediately available funds.

 

(g)    Principal on Physical Debentures shall be payable at the office or agency of the Issuer maintained for such purpose, initially the office of the Paying Agent identified in the definition “Paying Agent.”  Interest on Physical Debentures will be payable by (i) U.S. Dollar check drawn on a bank in The City of New York mailed to the address of the Person entitled thereto as such address shall appear in the register of the Debentures, or (ii) upon application to the Registrar not later than the relevant Record Date by a Holder of an aggregate principal amount of Debentures in excess of $250,000, wire transfer in immediately available funds, which application shall remain in effect until the Holder notifies, in writing, the Registrar to the contrary.

 

(h)    The Debentures shall be redeemable as provided in Article 4.

 

(i)    The Debentures shall be convertible at the option of the Holders as provided in Article 5.

 

Section 2.2    Form of Debentures .

 

(a)    Except as otherwise provided pursuant to this Section 2.2, the Debentures are issuable in fully registered form without coupons in substantially the form of Exhibit A hereto.  The Debentures are not issuable in bearer form.  The terms and provisions contained in the form of Debenture shall constitute, and are hereby expressly made, a part of this Supplemental Indenture and, to the extent applicable, the Issuer and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.  Any of the Debentures may have such letters, numbers or other marks of identification and such notations, legends and endorsements as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Supplemental Indenture and the Base Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Debentures may be listed or designated for issuance, or to conform to usage.

 

(b)    The Debentures shall, at the option of the Issuer upon instruction to the Trustee, be issued initially in either the form of a physical Debenture without interest coupons, substantially in the form of Exhibit A hereto or the form of permanent global Debentures in fully registered form (the “ Global Debenture ”), with, in the case of a Global Debenture, the applicable legends as provided in Section 2.3.  Each Global Debenture shall be duly executed by the Issuer and authenticated and delivered by the Trustee shall be registered in the name of the Debenture Depositary or its nominee and may be retained by the Trustee, as custodian of the Debenture Depositary, at its Corporate Trust Office, for credit to the accounts of the owners of the Debentures evidenced thereby and registered as such on the records of the Debenture Depositary.  The aggregate principal amount of the Global Debenture may from time to time be increased or decreased by adjustments made on the records of the Trustee, and of the Debenture Depositary or its nominee.

 

Section 2.3    Global Debentures Legend .

 

Each Global Debenture shall also bear the following legend on the face thereof:

 

THIS DEBENTURE IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE SUPPLEMENTAL INDENTURE REFERRED TO HEREIN.  THIS GLOBAL DEBENTURE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A DEBENTURE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN THE DEBENTURE DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN THE SUPPLEMENTAL INDENTURE AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE SUPPLEMENTAL INDENTURE.

 

Section 2.4    Defaulted Interest .

 

If the Issuer fails to make a payment of interest on any Debenture when due and payable (“ Defaulted Interest ”), it shall pay such Defaulted Interest plus (to the extent lawful) any interest payable on the Defaulted Interest, in any lawful manner.  It may elect to pay such Defaulted Interest, plus any such interest payable on it, to the Persons who are Holders of such Debentures on which the interest is due on a subsequent Special Record Date.  The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Debenture.  The Issuer shall fix any such Special Record Date and payment date for such payment and shall give notice thereof to the Trustee and the Paying Agent.  At least 15 days before any such Special Record Date, the Issuer shall mail to Holders affected thereby a notice that states the Special Record Date, the Interest Payment Date, and amount of such interest to be paid.

 

Section 2.5    Book-Entry Provisions for the Global Debentures .

 

(a)    The Global Debentures initially shall:

 

(i)    be registered in the name of the Debenture Depositary (or a nominee thereof); and

 

(ii)    may be delivered to the Trustee as custodian for the Debenture Depositary.

 

Owners of Debentures registered as such on the records of the Debenture Depositary shall have no rights under this Supplemental Indenture with respect to any Global Debenture held on their behalf by the Debenture Depositary, or the Trustee, as the custodian thereof, or under such Global Debenture, and the Debenture Depositary may be treated by the Issuer, the Trustee and the Paying Agent, as the case may be, and any agent of the Issuer or the Trustee or the Paying Agent, as the case may be, as the absolute owner of such Global Debenture for all purposes whatsoever.  Notwithstanding the foregoing, nothing contained herein shall (x) prevent the Issuer, the Trustee or the Paying Agent, as the case may be, or any agent of the Issuer or Trustee or the Paying Agent, as the case may be, from giving effect to any written certification, proxy or other authorization furnished by the Debenture Depositary or (y) impair, as between the Debenture Depositary and the owners of Debentures registered as such on the records of the Debenture Depositary, the operation of customary practices governing the exercise of the rights of a Holder of any Debenture.

 

(b)    The Holder of a Global Debenture may grant proxies and otherwise authorize any Person to take any action that a Holder is entitled to take under this Supplemental Indenture, the Base Indenture or the Debentures.

 

(c)    A Global Debenture may not be transferred, in whole or in part, to any Person other than the Debenture Depositary (or a nominee thereof), and no such transfer to any such other Person may be registered.  Beneficial interests in a Global Debenture may be transferred in accordance with the rules and procedures of the Debenture Depositary.

 

(d)    If at any time:

 

                       (i)    the Debenture Depositary notifies the Issuer and the Trustee in writing that it is no longer willing or able to continue to act as Debenture Depositary for the Global Debentures, and a successor Debenture Depositary for the Global Debentures is not appointed by the Issuer within 90 days of such notice;

 

                       (ii)    the Issuer, at its option, notifies the Debenture Depositary and the Trustee in writing that it elects to cause the issuance of Physical Debentures under this Supplemental Indenture in exchange for all or any part of the Debentures represented by a Global Debenture or Global Debentures; or

 

              (iii)    an Event of Default has occurred and is continuing and the Trustee has received a request from the Debenture Depositary for the issuance of Physical Debentures in exchange for such Global Debenture or Global Debentures;

 

then the Debenture Depositary shall surrender such Global Debenture or Global Debentures to the Trustee for cancellation and the Issuer shall execute, and the Trustee, upon receipt of an Officers’ Certificate and Issuer Order for the authentication and delivery of Debentures, shall authenticate and deliver in exchange for such Global Debenture or Global Debentures, Physical Debentures in an aggregate principal amount equal to the aggregate principal amount of such Global Debenture or Global Debentures.  Such Physical Debentures shall be registered in such names as the Debenture Depositary shall identify in writing as the owners of the Debentures identified as such on its records represented by such Global Debenture or Global Debentures (or any nominee thereof).

 

(e)    Notwithstanding the foregoing, in connection with any transfer of beneficial interests in a Global Debenture to the beneficial owners thereof pursuant to Section 2.5(d), the Trustee shall reflect on its books and records the date and a decrease in the principal amount of such Global Debenture in an amount equal to the principal amount of the beneficial interests in such Global Debenture to be transferred.

 

 

ARTICLE 3

 

ADDITIONAL COVENANTS

 

In addition to the covenants set forth in Article 3 of the Base Indenture, the Debentures shall be subject to the additional covenants set forth in this Article 3.

 

Section 3.1    Corporate Existence .

 

Subject to Article 8 of the Base Indenture, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided , however , that the Issuer shall not be required to preserve any such right or franchise if the Issuer determines that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and that the loss thereof is not disadvantageous in any material respect to the Holders.

 

Section 3.2    Waiver of Stay or Extension Laws .

 

The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim to take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Supplemental Indenture and the Base Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

Section 3.3    Limitation on Incurrence of Subsidiary Indebtedness .

 

The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim to take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Supplemental Indenture and the Base Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

Section 3.4    Prohibition on Debenture Holder Short Selling .

 

By accepting delivery of Debentures, unless the Issuer otherwise agrees in writing in its sole discretion, each Holder shall be deemed to have agreed that, so long as it or any of its Affiliates holds any Debentures, neither it nor any Affiliate or person acting on behalf of or pursuant to any understanding with such Holder, shall directly or indirectly, execute any Short Sales of the Issuer’s securities.

 

 

ARTICLE 4

 

REDEMPTION OF DEBENTURES

 

Section 4.1    Mandatory Redemption .

 

(a)    Financing Redemption .  So long as any Debentures remain Outstanding, upon completion of any equity or debt financing by the Issuer for cash (other than any Exempt Issuance), the Issuer will be required to use the net proceeds of such financing to redeem for cash all Outstanding Debentures at a redemption price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest thereon up to but not including the Redemption Date.

 

(b)    Redemption Upon a Change of Control .  If a Change of Control occurs, the Issuer will be required to redeem for cash all Outstanding Debentures at a redemption price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest thereon up to but not including the Redemption Date.

 

Section 4.2    Optional Redemption .

 

The Issuer has the right to redeem the Debentures for cash in whole or in part, at any time or from time to time, before April 6, 2008 at a redemption price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest thereon up to but not including the Redemption Date.

 

Section 4.3    Selection of Debentures for Partial Repayment .

 

If any Debenture selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Debenture so selected, the converted portion of such Debenture shall be deemed to be the portion selected for redemption; provided , however , that the Holder of such Debenture so converted and deemed redeemed shall not be entitled to any additional interest payment as a result of such deemed redemption than such Holder would have otherwise been entitled to receive upon conversion of such Debenture pursuant to Section 2.1(e).  Debentures that have been converted during a selection of Debentures to be redeemed may be treated by the Trustee as Outstanding for the purpose of such selection.

 

Section 4.4    Notice of Redemption .

 

Notice of redemption shall be given in the manner provided in this Section 4.4 to the Holders of Debentures to be redeemed.  Such notice shall be given not less than 10 and not more than 30 days prior to the intended Redemption Date.  If redemption is required pursuant to Section 4.1(a), notice of redemption shall be given to Holders not later than 10 days following completion of the applicable financing.  Notice of Redemption shall be given by the Issuer to the Trustee, to the Paying Agent and to the Conversion Agent not later than the day on which notice is given to the Holders.

 

In addition to the information required to be stated in notices of redemption pursuant to Section 11.02 of the Base Indenture, all notices of redemption shall state the Conversion Price, the date on which the right to convert the principal of the Debentures to be redeemed will terminate and the places where such Debentures may be surrendered for conversion.

 

Section 4.5    Deposit of Redemption Price .

 

Prior to 10:00 a.m., New York City time, on any Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent an amount of money sufficient to pay the Redemption Price in respect of all the Debentures to be redeemed on that Redemption Date, other than any Debentures called for redemption on that date which have been converted prior to the date of such deposit, and accrued and unpaid interest, if any, on such Debentures.

 

If any Debenture called for redemption is converted prior to redemption, any money deposited with the Trustee or with a Paying Agent for the redemption of such Debenture shall (subject to any right of the Holder of such Debenture or any Predecessor Debenture to receive interest as provided in Section 2.1(e)) be paid to the Issuer upon request by the Issuer.

 

 

ARTICLE 5

 

CONVERSION OF DEBENTURES

 

Section 5.1    Conversion Right and Conversion Price .

 

(a)    Subject to and upon compliance with the provisions of this Article 5, on or after April 6, 2008, at the option of the Holder thereof, any Debenture or any portion of the principal amount thereof which is $1,000.00 or an integral multiple of $1,000.00 may be converted at the principal amount thereof, or of such portion thereof, into duly authorized, fully paid and nonassessable ADSs of the Issuer, at the Conversion Price, determined as hereinafter provided, in effect at the time of conversion.

 

Such conversion right shall expire at the close of business on the Business Day immediately preceding the Maturity of the Debenture, except that where a Debenture or a portion thereof is called for redemption, such conversion right in respect of the Debenture or the portion so called, shall expire at the close of business on the second Business Day preceding the Redemption Date, unless the Issuer defaults in making the payment due upon redemption.

 

(b)    The number of ADSs into which each $1,000.00 principal amount of Debentures is convertible (the “ Conversion Rate ”) shall be initially equal to 2,083.33 ADSs per $1,000.00 principal amount of Debentures.  The Conversion Rate shall be adjusted by the Issuer as provided of Section 5.4.

 

Section 5.2    Exercise of Conversion Right .

 

To exercise the conversion right, the Holder of any Debenture to be converted shall surrender such Debenture duly endorsed or assigned to the Issuer or in blank, at the office of any Conversion Agent, accompanied by a duly signed Conversion Notice stating that the Holder elects to convert such Debenture or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted.  Debentures surrendered for conversion during the period from the close of business on any Regular Record Date to the opening of business on the next succeeding Interest Payment Date (except in the case of any Debenture whose Maturity is prior to such Interest Payment Date) shall be accompanied by payment in New York Clearing House funds or other funds acceptable to the Issuer of an amount equal to the interest to be received on such Interest Payment Date on the principal amount of Debentures being surrendered for conversion.

 

Debentures shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Debentures for conversion in accordance with the foregoing provisions, and at such time the rights of the Holders of such Debentures as Holders shall cease, and the Person or Persons entitled to receive the ADSs issuable upon conversion shall be treated by the Company for all purposes as the record holder or holders of the shares to be represented by ADSs at such time, provided that such Holder complies with such requirements at or before 5:00 p.m. New York City time on such date; if such requirements are complied with after such time on such date, the conversion date shall be deemed to be the following Business Day.  As promptly as practicable on or after the conversion date, the Issuer shall cause to be issued and delivered to the converting Debenture Holder the number of ADSs issuable upon conversion of such Debentures, together with payment in lieu of any fraction of an ADS share as provided in Section 5.3.

 

In the case of any Debenture which is converted in part only, upon such conversion the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Issuer, a new Debenture or Debentures of authorized denominations in aggregate principal amount equal to the unconverted portion of the principal amount of such Debentures.

 

Concurrently herewith, the Issuer is appointing Citibank, N.A. ─ London Branch as the Conversion Agent.

 

The Issuer hereby agrees, and each Holder of Debentures by its purchase thereof shall be deemed to have agreed, that the Conversion Agent shall incur no liability in connection with its obligations under this Article 5, except such liability as may result from the Conversion Agent’s gross negligence or willful misconduct.  In no event shall the Conversion Agent be liable to any Person, including any Holder, for any consequential, punitive or special damages.  The Issuer agrees to indemnify the Conversion Agent for, and to hold it harmless against, any and all loss, liability, damage, claim or expense (including the costs and expenses of defending against any claim (regardless of who asserts such claim) of liability) incurred by the Conversion Agent that arises out of or in connection with its obligations under this Article 5, except such as may result from the gross negligence or willful misconduct of the Conversion Agent or any of its agents or employees.  The provisions of this paragraph shall survive the termination and any modification or amendment of this Supplemental Indenture.

 

Section 5.3    Fractions of ADSs .

 

No fractional ADSs shall be issued upon conversion of any Debenture or Debentures.  If more than one Debenture shall be surrendered for conversion at one time by the same Holder, the number of full ADSs which shall be issued upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Debentures (or specified portions thereof) so surrendered.  Instead of any fractional ADSs that would otherwise be issued upon conversion of any Debenture or Debentures (or specified portions thereof), the Issuer shall pay to the converting Holder a cash adjustment in respect of such fraction (calculated to the nearest one-100th of an ADS) in an amount equal to the same fraction of the Trading Price of the ADSs as of the Trading Day preceding the date of conversion.

 

Section 5.4    Adjustment of Conversion Rate .

 

The Issuer shall calculate the adjustments to the Conversion Rate as follows:

 

(a)    Splits, Dividends, Etc .

 

                             (1)    In the event of changes in the outstanding Ordinary Shares, on or after the date hereof, by reason of a stock split, reverse stock split, stock dividend, subdivision, split-up, combination of Ordinary Shares or other transaction having similar effect, the number of Ordinary Shares issuable upon conversion of a Debenture in the aggregate and the conversion price shall be correspondingly adjusted to give the Holder of the Debenture, on exercise for the same aggregate exercise price, the total number of Ordinary Shares as the Holder would have owned had the Debenture been converted prior to the event requiring adjustment and had the Holder continued to hold such shares until after such event.

 

                             (2)    Effectiveness of Adjustment .

 

                                   (i)    Splits, subdivisions, combinations and other similar transactions .  Any such adjustment resulting from a stock split, reverse stock split, subdivision, split-up or combination of Ordinary Shares shall become effective at the opening of business on the day following the day upon which such combination becomes effective.

 

                                    (ii)    Dividends .  Any such adjustment resulting from a stock dividend shall become effective immediately after the opening of business on the day following the record date for such dividend.  If any such dividend described in Section 5.4(a)(i) is declared but not made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend had not been declared.

 

(b)    Spin Offs .  If, for any reason, prior to the conversion of the Debentures in full, the Issuer spins off or otherwise divests itself of a part of its business or operations or disposes all or a part of its assets (the “ Spin Off ”), in each case in a transaction in which the Issuer does not receive compensation for such business, operations or assets, but causes securities of another entity (the “ Spin Off Securities ”) to be issued to its security holders, then the exercise price of the Outstanding Debentures shall be adjusted immediately after consummation of the Spin Off by multiplying the conversion price in effect immediately prior to the Spin Off by a fraction (if, but only if, such fraction is less than 1.0), the numerator of which is the average closing bid price of the ADSs for the five Trading Days immediately following the fifth Trading Day after the record date (the “ Record Date ”) for determining the amount and number of Spin Off Securities to be issued to the Issuer’s security holders, and the denominator of which is the average closing bid price of the ADSs for the five Trading Days immediately preceding the Record Date; and such adjusted conversion price shall be deemed to be the exercise price with respect to the Outstanding Debentures after the consummation of the Spin Off.

 

(c)    Down-rounds .

 

                             (1)    If, at any time prior to December 6, 2009, the Issuer issues shares, securities convertible into ADSs or shares, warrants to purchase ADSs or shares or options to purchase any of the foregoing to a third party (other than (i) pursuant to the Issuer’s stock option plans or upon conversion or exercise of securities exercisable, exchangeable or convertible into ADSs or shares and (ii) in connection with the acquisition by the Issuer of Ester Neurosciences Ltd., an Israeli company, pursuant to the definitive agreement relating thereto, and related fees) at a price that is less than, or converts at a price that is less than, $0.366 (such lesser price, the “ Down-round Price ”), then the conversion price shall be adjusted to equal 130% of the Down-round Price.

 

                    (2)    If the Issuer gives notice to the Holders of its intention to issue a notice of optional redemption for Debentures pursuant to Section 4.2, then the conversion rate and conversion price adjustments described in Section 5.4(a) shall be suspended with respect to those Debentures called for redemption during the 90-day period beginning upon the effectiveness of such notice.

 

                             (3)    Any adjustment pursuant to this Section 5.4(c) shall become effective immediately after consummation of the issuance giving rise to such adjustment.

 

(d)    The Debentures need not be exchanged because of any adjustment pursuant to this Section 5.4 in the Conversion Rate and/or number of ADSs subject to each Debenture.

 

Section 5.5    Notice of Adjustments of Conversion Rate .

 

Whenever the Conversion Rate is adjusted as herein provided, the Issuer shall promptly file with the Trustee and each Conversion Agent other than the Trustee an Officers’ Certificate setting forth the adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment is based.  Promptly after delivery of such Officers’ Certificate, the Issuer shall prepare a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price and the date on which each adjustment becomes effective, and shall mail such notice to each Holder at the address of such Holder as it appears in the register of the Debentures within 20 days of the effective date of such adjustment.  Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

 

Section 5.6    Issuer to Reserve Ordinary Shares .

 

The Issuer shall at all times use its best efforts to reserve and keep available, free from preemptive rights, out of its authorized but unissued Ordinary Shares, for the purpose of effecting the conversion of Debentures, the full number of shares of fully paid and nonassessable Ordinary Shares then issuable upon the conversion of all Outstanding Debentures.

 

Section 5.7    Covenant as to Ordinary Shares .

 

The Issuer covenants that all Ordinary Shares which may be issued upon conversion of Debentures will upon issue be fully paid and nonassessable and rank pari passu with Ordinary Shares then outstanding and, except as provided in Section 5.10, the Issuer will pay all taxes, liens and charges with respect to the issue thereof.

 

Section 5.8    Issuer’s Covenant Regarding the Delivery of ADSs .

 

(a)    Upon receipt by the Issuer of a Conversion Notice, the Issuer covenants that it will deposit or cause to be deposited Ordinary Shares issuable upon conversion of the Debentures with the Depositary in accordance with the terms of the Deposit Agreement and will comply with the applicable terms of the Deposit Agreement so as to enable the issuance and delivery of the ADSs representing such Ordinary Shares by the Depositary on behalf of the Issuer to the Holders as required by the Indenture and the Deposit Agreement.

 

(b)    The Issuer covenants that it will perform all acts necessary in order to ensure that ADSs representing Ordinary Shares issuable upon conversion of the Debentures are delivered to the Holders entitled thereto.

 

Section 5.9    Distribution of Ordinary Shares Instead of ADSs .

 

(a)    In the event that Ordinary Shares cease to be represented by ADSs issued under a depositary receipt program sponsored by the Issuer, or the ADSs cease to be quoted on the Nasdaq Capital Market (and are not at that time listed on another United States national securities exchange), all references herein to ADSs will be deemed to have been replaced by a reference to:

 

(i)    the number of Ordinary Shares corresponding to the ADSs on the last day on which the ADSs were quoted on the Nasdaq Capital Market; and

 

(ii)    as adjusted, pursuant to the adjustment provisions contained in this Article 5, for any other property the ADSs represented as if the other property has been distributed to holders of ADSs on that day.

 

Section 5.10    Taxes on Conversions .

 

The purchase price paid by the Holder on the date hereof for the unit of which the Debenture is a part includes costs of issuance such as all transfer agent fees, stamp taxes and other taxes and duties levied in connection with the delivery of the Debentures to such Holder on the date hereof.  A Holder delivering a Debenture for conversion shall be liable for and will be required to pay any tax or duty which may be payable in respect of any transfer to another Person involved in the issue and delivery of ADSs, and no such issue or delivery shall be made unless the Person requesting such issue has paid to the Issuer the amount of any such tax or duty, or has established to the satisfaction of the Issuer that such tax or duty has been paid.

 

Section 5.11    Cancellation of Converted Debentures .

 

All Debentures delivered for conversion shall be delivered to the Trustee to be canceled by the Trustee, which shall dispose of the same as provided in Section 2.10 of the Base Indenture.

 

Section 5.12    Obligations of the Conversion Agent .

 

(a)    Prior to Maturity, the Conversion Agent shall:

 

(i)    accept deposit, during its normal business hours at its specified office on behalf of the Issuer of any Conversion Notice, subject to such changes therein as may from time to time be agreed by the Issuer, the Conversion Agent and the Trustee, together with the relevant Debenture(s);

 

(ii)    obtain a certification from the converting Debenture Holder (which may be included in the Conversion Notice) to pay to the applicable taxing authority all stamp, issue, registration or similar taxes or duties or transfer costs (if any) arising in connection with the conversion of a Debenture and the issue, transfer, or delivery of ADSs or any other securities, property or cash to another Person; and

 

(iii)    accept, to the extent applicable, any interest payment a Holder seeking to convert Debentures between a Regular Record Date and an Interest Payment Date is, pursuant to Section 5.2 of this Supplemental Indenture required to pay to the Issuer (“ Interest Refund ”).

 

(b)    The Conversion Agent, promptly upon receipt of a completed Conversion Notice in proper form and the related Debentures, shall:

 

(i)    verify that the Debentures are eligible for conversion and that the Conversion Notice has been duly completed and signed in accordance with its terms.  The Conversion Agent may reject any incomplete or incorrect Conversion Notice.  All costs and expenses incurred or caused by an incomplete or incorrect Conversion Notice shall be for the account of the relevant Holder of Debentures.  The Conversion Agent shall to the extent possible promptly notify such Debenture Holder of any such incompleteness or incorrectness.

 

(ii)    inform the Issuer and  the Trustee, as soon as practicable, but in no event later than the close of business on the Business Day immediately following the relevant Conversion Date, by means of a tested facsimile, telex, telecopy or cable (each, an “ Agent Conversion Notice ”) (together with a copy of the Conversion Notice) of:

 

(A)       the principal amount of Debentures to be converted into ADSs and, if relevant, the total number and identifying numbers of all Debenture certificates, if any, so deposited;

 

(B)        the name and address of the Person in whose name the ADSs deliverable upon conversion are to be registered;

 

(C)           the date of conversion in respect of such conversion;

 

(D)           the name and address of the Person to whom or to whose order are to be sent the ADSs deliverable upon conversion and any other securities, property or cash required to be delivered and/or paid on conversion;

 

(E)           the name of the Holder by whom Debentures are being delivered; and

 

(F)           the amount of any Interest Refund.

 

provided that where a Conversion Notice is received which requires the ADSs (or any other securities, property or cash) deliverable on conversion of the Debentures to which it relates to be dealt with in different ways for specified nominal amounts (which must be US$1,000.00 in principal amount or integral multiples thereof) of Debentures, the Conversion Agent receiving the Conversion Notice may, and, if requested by the Debenture Holder depositing the Conversion Notice, shall, treat each specified nominal amount of Debentures as if it were subject to its own Conversion Notice and prepare and send the details referred to in this section separately for each such specified nominal amount (and, for the avoidance of doubt, so they are not aggregated for the purpose of calculating the number of ADSs or amount of other securities, property or cash deliverable or payable on conversion);.

 

(iii)    remit to the Issuer the amount of the Interest Refund received from a Holder seeking to convert Debentures between a Regular Record Date and an Interest Payment Date.

 

(c)    Upon receipt of the relevant Agent Conversion Notice, the Issuer shall in accordance with the request made by the Debenture Holders in the Conversion Notice (but subject to any applicable limitations then imposed by English laws and regulations),

 

(i)    cause the Share Transfer Agent as soon as practicable, in any event within six Business Days after the relevant Conversion Date, to (x) register the applicable number of Ordinary Shares to the account of the Depositary (or its nominee) and (y) confirm by means of a confirmation by tested telex, facsimile or cable to the Conversion Agent that has sent the relevant Agent Conversion Notice, that the Depositary (or its nominee) has been registered as the owner of the relevant Ordinary Shares to be represented by the ADSs to be delivered on conversion of the Debentures;

 

(ii)     (x) cause the Depositary to deliver to the order of the Person named for that purpose in the relevant Agent Conversion Notice the relevant ADSs and (y) deliver or cause to be delivered any other securities, property or cash required to be delivered on conversion and such assignments and other documents (if any) as may be required by law to effect to transfer of such securities, property or cash; and

 

(iii)    send a notification by tested telex, facsimile or cable to the Conversion Agent that the Issuer has (x) directed the Depositary to issue and deliver the requested number of ADSs to the Person designated in such Conversion Notice and to register the converting Debenture Holder or other Person nominated in the Conversion Notice as the owner of the ADSs representing the Ordinary Shares relating thereto and (y) delivered, dispatched or paid such other securities, property or cash required to be delivered and/or paid upon conversion as may be required to be delivered by the Issuer in accordance with such Conversion Notice.

 

(d)    Promptly upon request from time to time, the Issuer will provide the Conversion Agent with copies of the form of Conversion Notice and the Issuer shall, whenever the Conversion Price is adjusted pursuant to Section 5.4 of this Supplemental Indenture, as soon as practicable notify in writing each of the Trustee, the Conversion Agents particulars of the event giving rise to the adjustment, the Conversion Price after such adjustment, the date on which such adjustment takes effect and such other particulars and information as the Trustee and the Conversion Agent may reasonably require.  If required by any Debenture Holder, the Conversion Agent shall make Conversion Notices in the current form available to Debenture Holders.

 

(e)    Each Conversion Notice and Agent Conversion Notice and each other telex, cable or facsimile sent and letter delivered in respect of a Conversion Notice pursuant to the foregoing provisions of this Section 5.12(e) by any Conversion Agent shall indicate the identification code designated below for that Conversion Agent, followed by the words “Amarin CB Due 2010” and shall bear the lowest number previously unused by that Conversion Agent in the sequence of numerals relating to the number of Conversion Notices deposited, starting from one and continuing in uninterrupted ascending sequence, for identification.  All confirmatory or subsequent communications sent hereunder with regard to the conversion, receipt, delivery and/or payment of ADSs and/or any other securities, property and cash relating to such Conversion Notice shall bear the same identifying serial number as well as the identification code of the relevant Conversion Agent.

 

The identification codes of the Conversion Agent shall be as follows:

 

Citibank, N.A., London: CITILON

 

Thus, by way of example, the reference to be used for the seventh Conversion Notice deposited with Citibank, N.A., London, and for each telex and letter relating thereto would be “CITILON/ AMARIN CB Due 2010/0007”.

 

Section 5.13    Responsibility of Trustee and Conversion Agent for Conversion Provisions .

 

The Trustee, subject to the provisions of Section 5.01 of the Base Indenture, and any Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Debentures to determine whether any facts exist which may require any adjustment of the Conversion Price, or with respect to the nature or intent of any such adjustments when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same or with respect to the accuracy of any calculation made by the Issuer in respect thereof.  Neither the Trustee, subject to the provisions of Section 5.01 of the Base Indenture, nor any Conversion Agent shall be accountable with respect to the validity or value (of the kind or amount) of any ADSs or Ordinary Shares, or of any other securities or property, which may at any time be issued or delivered upon the conversion of any Debenture; and it or they do not make any representation with respect thereto.  Neither the Trustee, subject to the provisions of Section 5.01 of the Base Indenture, nor any Conversion Agent shall be responsible for any failure of the Issuer to make any cash payment or to issue, transfer or deliver any shares of stock or share certificates or other securities or property upon the surrender of any Debenture for the purpose of conversion; and the Trustee, subject to the provisions of Section 5.01 of the Base Indenture, and any Conversion Agent shall not be responsible for making any calculations hereunder or be responsible or liable for any failure of the Issuer to comply with any of the covenants of the Issuer contained in this Article 5.

 

 

ARTICLE 6

 

MISCELLANEOUS PROVISIONS

 

Section 6.1    Scope of Supplemental Indenture .

 

The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall only be applicable with respect to, and govern the terms of, the Debentures and shall not apply to any other Securities that may be issued by the Issuer under the Base Indenture.

 

Section 6.2    Provisions of Supplemental Indenture for the Sole Benefit of Parties and Holders of Debentures .

 

Nothing in this Supplemental Indenture, the Base Indenture or in the Debentures, expressed or implied, shall give or be construed to give to any Person, other than the parties hereto and their successors and the Holders of the Debentures, any legal or equitable right, remedy or claim under this Supplemental Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Debentures.

 

Section 6.3    Successors and Assigns of Issuer Bound by Supplemental Indenture .

 

All the covenants, stipulations, promises and agreements in this Supplemental Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.

 

Section 6.4    Notices and Demands on Issuer, Trustee and Holders of Debentures . Any notice or demand which by any provision of this Supplemental Indenture is required or permitted to be given or served by the Trustee, any Conversion Agent, any Paying Agent, or by the Holders of Debentures to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address is filed with the Trustee) as follows:

 

If to the Issuer:

 

Amarin Corporation plc

7 Curzon Street

London W1J 5HG, England

Attention:  Alan Cooke, CFO

Fax: 353-(1)-669-9028

 

with a copy to:

 

Cahill Gordon & Reindel LLP

80 Pine Street

New York, NY  10005
Attention:  Geoffrey E. Liebmann, Esq. and Christopher T. Cox, Esq.

Fax: (212) 269-5420

 

Any notice, direction, request or demand by the Issuer, any Holder of Debentures, any Conversion Agent, any Paying Agent to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if delivered in person or mailed by first-class mail to the Trustee at, Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, DE 19890 Attention: Corporate Client Services.

 

Where this Supplemental Indenture provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the register of the Debentures.  In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.  Where this Supplemental Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer or Holders of Debentures when such notice is required to be given pursuant to any provision of this Supplemental Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.

 

Section 6.5    Officers’ Certificates and Opinions of Counsel; Statements to be Contained Therein .

 

Upon any application or demand by the Issuer to the Trustee to take any action under any of the provisions of this Supplemental Indenture, the Issuer shall furnish to the Trustee all documents with respect to this Supplemental Indenture that the Issuer would be required to furnish to the Trustee were the Issuer taking such action under a provision of the Indenture.

 

Section 6.6    Payments Due on Saturdays, Sundays and Holidays .

 

If the date of maturity of interest on or principal of the Debentures or the date fixed for redemption or repurchase of any such Debenture shall not be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption or repurchase, and no interest shall accrue for the period after such date.

 

Section 6.7    Conflict of any Provisions of Supplemental Indenture with Trust Indenture Act of 1939 .

 

If and to the extent that any provision of this Supplemental Indenture limits, qualifies or conflicts with another provision included in this Supplemental Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939 (an “ incorporated provision ”), such incorporated provision shall control.

 

Section 6.8    New York Law to Govern .

 

This Supplemental Indenture and each Debenture shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State, except as may otherwise be required by mandatory provisions of law.

 

Section 6.9    Counterparts .

 

This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same agreement.

 

Section 6.10    Effect of Headings .

 

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 6.11    The Trustee .

 

From and after the date hereof, this Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Debentures heretofore or hereafter authenticated and delivered shall be bound hereby.  All recitations or recitals contained in this Supplemental Indenture are made by and on behalf of Issuer only, and the Trustee is in no way responsible for the correctness of any statement herein contained or for the validity or sufficiency of this Supplemental Indenture.  The execution by the Trustee of this Supplemental Indenture shall not be construed to be an approval or disapproval by the Trustee of the advisability of the action being taken herein by the Issuer.  All the provisions of the Indenture with respect to the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect hereof as fully and with like effect  as if set forth herein in full with such omissions, variations or insertions, if any, as may be appropriate to make the same conform to this Supplemental Indenture.

 

 

ARTICLE 7

 

SUPPLEMENTAL INDENTURES

 

Section 7.1    Without Consent of Holders .

 

The Issuer and the Trustee may amend, modify or supplement this Supplemental Indenture or the Debentures without the consent of any Holder to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to make such other provisions in regard to matters or questions arising under this Supplemental Indenture or under any supplemental indenture as the Issuer may deem necessary or desirable and which shall not adversely affect the interests of the Holders of the Securities in any material respect; provided that any amendment made solely to conform the provisions of this Indenture to the “Description of the Debentures” contained in the Issuer’s prospectus supplement dated December 5, 2007 will not be deemed to adversely affect the interests of the Holders of the Debentures.

 

 

ARTICLE 8

 

SATISFACTION AND DISCHARGE

 

Section 8.1    Satisfaction and Discharge .

 

(a)    With respect to the Debentures, Section 9.01 of the Base Indenture is not applicable.

 

(b)    The Issuer may satisfy and discharge their obligations under the Indenture while the Debentures remain Outstanding, if (i) all Outstanding Debentures have become due and payable at their scheduled Maturity, or (ii) all Outstanding Debentures have been called for redemption, and in either case, the Issuer has deposited with the Trustee an amount sufficient to pay and discharge all Outstanding Debentures on the date of their scheduled Maturity or the scheduled Redemption Date.

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

AMARIN CORPORATION PLC
By:	/s/ Alan Cooke
	Name:  Alan Cooke
	Title:    President/CFO

WILMINGTON TRUST COMPANY, as Trustee
By:	/s/ Patrick Healy
	Authorized Signatory

EXHIBIT A

 

[FORM OF FACE OF DEBENTURE]

 

THIS DEBENTURE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE.  A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH DEBENTURES BY SUBMITTING A REQUEST FOR SUCH INFORMATION TO THE ISSUER AT THE FOLLOWING ADDRESS:  AMARIN CORPORATION PLC, 7 CURZON STREET, LONDON W1J 5HG, ENGLAND, ATTENTION:  CHIEF FINANCIAL OFFICER.

 

[THIS DEBENTURE IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE SUPPLEMENTAL INDENTURE REFERRED TO HEREIN. THIS GLOBAL DEBENTURE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A DEBENTURE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN THE SUPPLEMENTAL INDENTURE AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE SUPPLEMENTAL INDENTURE.] ¹

 

DEBENTURE

 

AMARIN CORPORATION PLC

 

8% Convertible Debentures due 2010

 

This Debenture is in respect of an issue of 8% Convertible Debentures due 2010 (the “ Debentures ”) of Amarin Corporation plc, a public limited company registered in England and Wales (the “ Issuer ”, which term includes any successor corporation under the Supplemental Indenture and Indenture hereinafter referred to), and issued pursuant to a supplemental indenture dated as of December 6, 2007 and a base indenture dated as of December 6, 2007 (respectively, the “ Supplemental Indenture ” and the “ Base Indenture ” and together, the “ Indenture” ) between Amarin Corporation plc, as issuer, and Wilmington Trust Company, as trustee (the “ Trustee ”). Unless the context otherwise requires, the terms used herein shall have the meanings specified in the Supplemental Indenture and Indenture.

 

The Issuer, for value received, hereby promises to pay to [                              ] or its registered assigns, the principal amount of [                    ] United States Dollars (U.S.$ [                    ]) on December 6, 2010, and to pay interest on such principal amount in U.S. Dollars at the rate of 8% per annum, computed on the basis of a 360-day year consisting of twelve

 

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30-day months, from the date hereof until payment of such principal amount has been made or duly provided for, such interest to be paid in cash in arrears on March 31, June 30, September 30 and December 31 of each year, commencing on March 31, 2008.  The interest so payable subject to certain exceptions provided in the Supplemental Indenture, be paid to the Person in whose name this Debenture is registered at the close of business on the March 15, June 15, September 15 and December 15 immediately preceding the applicable interest payment date, whether or not such day is a Business Day.

 

Reference is hereby made to the further provisions of this Debenture set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

This Debenture shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee.

 

IN WITNESS WHEREOF, the Issuer has caused this Debenture to be duly executed manually or by facsimile by its duly authorized officers.

 

Exhibit 99.4

[FORM OF]

 

DEBENTURE

 

AMARIN CORPORATION PLC

 

8% Convertible Debentures due 2010

 

This Debenture is in respect of an issue of 8% Convertible Debentures due 2010 (the “ Debentures ”) of Amarin Corporation plc, a public limited company registered in England and Wales (the “ Issuer ”, which term includes any successor corporation under the Supplemental Indenture and Indenture hereinafter referred to), and issued pursuant to a supplemental indenture dated as of December 6, 2007 and a base indenture dated as of December 6, 2007 (respectively, the “ Supplemental Indenture ” and the “ Base Indenture ” and together, the “ Indenture ”) between Amarin Corporation plc, as issuer, and Wilmington Trust Company, as trustee (the “ Trustee ”). Unless the context otherwise requires, the terms used herein shall have the meanings specified in the Supplemental Indenture and Indenture.

 

               The Issuer, for value received, hereby promises to pay to [                  ] or its registered assigns, the principal amount of [                          ] United States Dollars (U.S. [  ]) on December 6, 2010, and to pay interest on such principal amount in U.S. Dollars at the rate of 8% per annum, computed on the basis of a 360-day year consisting of twelve 30-day months, from the date hereof until payment of such principal amount has been made or duly provided for, such interest to be paid in cash in arrears on March 31, June 30, September 30 and December 31 of each year, commencing on March 31, 2008.  The interest so payable subject to certain exceptions provided in the Supplemental Indenture, be paid to the Person in whose name this Debenture is registered at the close of business on the March 15, June 15, September 15 and December 15 immediately preceding the applicable interest payment date, whether or not such day is a Business Day.

 

Reference is hereby made to the further provisions of this Debenture set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

This Debenture shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee.

 

IN WITNESS WHEREOF, the Issuer has caused this Debenture to be duly executed manually or by facsimile by its duly authorized officers.

 

Dated:  December 6, 2007

                                   AMARIN CORPORATION PLC

 

 

                                                                       By:                                                      

                                                                                  Nam e:

                                                                                  Title:

Trustee’s Certificate of Authentication

This is one of the 8% Convertible

Debentures due 2010 described in the within-named

Supplemental Indenture and Indenture.

 

WILMINGTON TRUST COMPANY,

as Trustee

 

By:                                                                                  

         Authorized Signatory

 

Dated:  December 6, 2007

 

[RESERVISIBLE SIDE OF DEBENTURE]

 

AMARIN CORPORATION PLC

 

8% Convertible Debentures due 2010

 

Capitalized terms used herein but not defined shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

 

1.            Principal and Interest .

 

Amarin Corporation plc, a public limited company registered in England and Wales (the “ Issuer ”), promises to pay interest on the principal amount of this Debenture at the Interest Rate from December 6, 2007 until the principal thereof is paid or made available for payment. Interest shall be payable in arrears on March 31, June 30, September 30 and December 31 of each year (each an “ Interest Payment Date ”), commencing March 31, 2008.

 

Interest on the Debentures shall be computed on the basis of a 360-day year of twelve 30-day months.

 

A Holder of any Debenture at the close of business on a Regular Record Date shall be entitled to receive interest on such Debenture on the corresponding Interest Payment Date. A Holder of any Debenture which is converted after the close of business on a Regular Record Date and prior to the corresponding Interest Payment Date (other than any Debenture whose Maturity is prior to such Interest Payment Date) shall be entitled to receive interest on the principal amount of such Debenture, notwithstanding the conversion of such Debenture prior to such Interest Payment Date. However, any such Holder which surrenders any such Debenture for conversion during the period between the close of business on such Regular Record Date and ending with the opening of business on the corresponding Interest Payment Date shall be required to pay the Issuer an amount equal to the interest on the principal amount of such Debenture so converted, which is payable by the Issuer to such Holder on such Interest Payment Date, at the time such Holder surrenders such Debenture for conversion. Notwithstanding the foregoing, any such Holder which surrenders for conversion any Debenture which has been called for redemption by the Issuer in a notice of redemption given by the Issuer pursuant to Article 4 of the Supplemental Indenture shall be entitled to receive (and retain) such accrued interest to the Redemption Date and need not pay the Issuer an amount equal to the interest on the principal amount of such Debenture so converted at the time such Holder surrenders such Debenture for conversion.

 

2.            Method of Payment .

 

Interest on any Debenture which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Debenture (or one or more Predecessor Debentures) is registered at the close of business on the relevant Regular Record Date for such interest.

 

Principal of and interest on Global Debentures shall be payable to the Depositary in immediately available funds.

 

Principal of Physical Debentures will be payable at the office or agency of the Issuer maintained for such purpose, initially the office of the Paying Agent identified in the definition “Paying Agent.”  Interest on Physical Debentures will be payable by (i) U.S. Dollar check drawn on a bank in The City of New York mailed to the address of the Person entitled thereto as such address shall appear in the register of the Debentures, or (ii) upon application to the Registrar not later than the relevant Record Date by a Holder of an aggregate principal amount of Debentures in excess of $250,000, wire transfer in immediately available funds, which application shall remain in effect until the Holder notifies, in writing, the Registrar to the contrary.

 

3.            Paying Agent and Registrar .

 

Initially, Citibank, N.A. will act as Paying Agent and Registrar. The Issuer may change the Paying Agent or Registrar without notice to any Holder.

 

4.            Supplemental Indenture and Indenture .

 

The Issuer issued this Debenture under a Supplemental Indenture and a Base Indenture, each dated as of December 6, 2007 (respectively, the “ Supplemental Indenture ” and the “ Base Indenture ” and together, the “ Indenture ”), among the Issuer and Wilmington Trust Company, as trustee (the “ Trustee ”). The terms of the Debenture include those stated in the Indenture, and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (“ TIA ”). This Debenture is subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Debenture and the terms of the Indenture, the terms of the Indenture shall control.

 

5.            Redemption .

 

Mandatory Redemption

 

Financing Redemption.   So long as any Debentures remain Outstanding, upon completion of any equity or debt financing by the Issuer for cash (other than an Exempt Issuance), the Issuer will be required to use the net proceeds of such financing to redeem for cash all Outstanding Debentures at a redemption price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest thereon up to but not including the Redemption Date.

 

Redemption Upon a Change of Control.   If a Change of Control occurs, the Issuer will be required to redeem for cash all Outstanding Debentures at a redemption price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest thereon up to but not including the Redemption Date.

 

Optional Redemption

 

At any time and from time to time before April 6, 2008, the Issuer may, at its option, redeem the Debentures in whole at any time or in part, upon notice as set forth in Section 5.3, at the Redemption Price.

 

6.            Conversion Rights .

 

Subject to and upon compliance with the provisions of the Supplemental Indenture, at the option of the Holder thereof, any Debenture or any portion of the principal amount thereof which is an integral multiple of $1,000.00 may be converted at any time at the principal amount thereof, or of such portion thereof, into duly authorized, fully paid and nonassessable ADSs of the Issuer, at the Conversion Rate in effect at the time of conversion.

 

Such conversion right shall expire at the close of business on the Business Day immediately preceding December 6, 2010.

 

In case a Debenture or a portion thereof is called for redemption, such conversion right in respect of the Debenture or the portion so called, shall expire at the close of business on the second Business Day preceding the Redemption Date, unless the Issuer defaults in making the payment due upon redemption.

 

The Conversion Rate initially shall be equal to approximately 2,083.33 ADSs per $1,000.00 principal amount of Debentures. The Conversion Rate shall be adjusted in certain circumstances as provided in the Supplemental Indenture.

 

To exercise the conversion right, the Holder of any Debenture to be converted shall surrender such Debenture duly endorsed or assigned to the Issuer or in blank, at the office of any Conversion Agent, accompanied by a duly signed Conversion Notice.

 

Debentures surrendered for conversion during the period from the close of business on any Regular Record Date to the opening of business on the next succeeding Interest Payment Date (except in the case of any Debenture whose Maturity is prior to such Interest Payment Date) shall be accompanied by payment in New York Clearing House funds or other funds acceptable to the Issuer of an amount equal to the interest to be received on such Interest Payment Date on the principal amount of Debentures being surrendered for conversion.

 

No fractional ADSs will be issued upon conversion of any Debenture or Debentures. Instead of any fractional ADS that would otherwise be issued upon conversion of such Debenture or Debentures (or specified portions thereof), the Issuer shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100 ^th of a share) in an amount equal to the same fraction of the Trading Price of the ADSs as of the Trading Day preceding the date of conversion.

 

The Issuer will deliver the settlement amount to converting Holders on the third Business Day immediately following the last day of the applicable Settlement Period.

 

7.            Denominations; Transfer; Exchange .

 

The Debentures are issuable in registered form, without coupons, in denominations of $1,000.00 or integral multiples thereof. A Holder may register the transfer or exchange of Debentures in accordance with the Indenture. The Issuer or the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay any taxes or other governmental charges that may be imposed in connection with any exchange or registration of transfer of Debentures.

 

The Issuer shall not be required to exchange or register a transfer of (a) any Debenture for a period of 15 days next preceding the first mailing of notice of redemption of Debentures to be redeemed, or (b) any Debentures selected, called or being called for redemption except, in the case of any Debenture where notice has been given that such Debenture is to be redeemed in part, the portion thereof not so to be redeemed.

 

In the event of redemption, conversion or repurchase of the Debentures in part only, a new Debenture or Debentures for the unredeemed, unconverted or unrepurchased portion thereof will be issued in the name of the Holder hereof.

 

8.            Holders to be Treated as Owners .

 

The physical holder or the registered Holder of this Debenture, as the case may be, shall be treated as its owner for all purposes.

 

9.            Unclaimed Money .

 

Any moneys deposited with or paid to the Trustee or any Paying Agent for the payment of the principal of or interest on any Debenture and not applied but remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable, shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the Trustee or such Paying Agent, and the Holder of the Debenture shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any Paying Agent with respect to such moneys shall thereupon cease.

 

10.            Satisfaction and Discharge .

 

The Issuer may satisfy and discharge its obligations under the Indenture while the Debentures remain Outstanding, if (a) all Outstanding Debentures have become due and payable at their scheduled Maturity, or (b) all Outstanding Debentures have been called for redemption, and in either case, the Issuer has deposited with the Trustee an amount sufficient to pay and discharge all Outstanding Debentures on the date of their scheduled Maturity or the scheduled Redemption Date.

 

11.            Supplement; Waiver .

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Debentures under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Outstanding Debentures (or such lesser amount as shall have acted at a meeting pursuant to the provisions of the Indenture). The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Debentures at the time Outstanding, on behalf of the Holders of all the Debentures, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Debenture shall be conclusive and binding upon such Holder and upon all future Holders of this Debenture and of any Debenture issued upon registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Debenture or such other Debenture.

 

No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Debenture at the times, places and rate, and in the coin or currency, herein prescribed or to convert this Debenture (or pay cash in lieu of conversion) as provided in the Indenture.

 

12.            Defaults and Remedies .

 

The Indenture provides that an Event of Default with respect to the Debentures occurs when any of the following occurs:

 

(a)           default is made in the payment of the principal or any premium in respect of the Debentures (including as a result of the Issuer’s failure to comply with any mandatory redemption provisions of the Indenture);

 

(b)           default is made for more than 30 days in the payment of interest in respect of the Debentures;

 

(c)           the Issuer fails to perform or observe any of its other obligations under the Debentures and this failure has continued for the period of 60 days after the Issuer receives notice of default stating that the Issuer is in breach;

 

(d)           the Issuer’s bankruptcy, insolvency or reorganization under any applicable bankruptcy, insolvency or insolvency-related reorganization law; or

 

(e)           an order is made or an effective resolution is passed for the winding up or liquidation of the Issuer.

 

14.            Authentication .

 

This Debenture shall not be valid until the Trustee (or authenticating agent) executes the certificate of authentication on the other side of this Debenture.

 

16.            Governing Law .

 

The Supplemental Indenture, Indenture and this Debenture shall be governed by, and construed in accordance with, the law of the State of New York.

 

17.            Successor Corporation .

 

In the event a successor corporation legal entity assumes all the obligations of the Issuer under this Debenture, pursuant to the terms hereof and of the Indenture, the Issuer will be released from all such obligations.

 

ASSIGNMENT FORM

 

To assign this Debenture, fill in the form below and have your signature guaranteed:

(I) or (we) assign and transfer this Debenture to:

 

                                                                                                                   

(Insert assignee’s soc. sec. or tax I.D. no.)

 

                                                                                                                   

(Insert assignee’s soc. sec. or tax I.D. no.)

 

                                                                                                                                                         

 

 

                                                                                                                                                         

 

 

                                                                                                                                                        

 

 

                                                                                                                                                        

Print or type assignee’s name, address and zip code)

 

and irrevocably appoint                                                                                                                                                                                       

 

to transfer this Debenture on the books of the Issuer. The agent may substitute another to act for him.

 

 

Dated:                                                                                                                              Your Name:                                                     

 

                                                                  (Print your name exactly as it

                                                                   appears on the face of this Debenture)

 

                                                                   Your Signature:                                              

                                                                                                                                   

                                                                                                                                       (Sign exactly as your name appears

                                                                                                                                                                        on the face of this Debenture)

 

                                                                   Signature Guarantee*: