SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K
Report
of Foreign Private Issuer
Pursuant
to Rule 13a-16 or 15d-16
under
the Securities Exchange Act of 1934
For
the
month of December, 2007.
Commission
File Number 0-21392
AMARIN
CORPORATION PLC
|
(Translation
of registrant's name into
English)
|
110
Cannon Street, London EC4N 6AR, England
|
(Address
of principal executive
offices)
|
Indicate
by check
mark whether the registrant files or will file annual reports under cover of
Form 20-F or Form 40-F:
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(1):
Note:
Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form
6-K
if submitted solely to provide an attached annual report to security
holders.
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(7):
Note:
Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form
6-K
if submitted to furnish a report or other document that the registrant foreign
private issuer must furnish and make public under the laws of the jurisdiction
in which the registrant is incorporated, domiciled or legally organized (the
registrant's "home country"), or under the rules of the home country exchange
on
which the registrant's securities are traded, as long as the report or other
document is not a press release, is not required to be and has not been
distributed to the registrant's security holders, and, if discussing a material
event, has already been the subject of a Form 6-K submission or other Commission
filing on EDGAR.
Indicate
by check mark whether by furnishing the information contained in this Form,
the
registrant is also thereby furnishing the information to the Commission pursuant
to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
If
"Yes"
is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b):
This
report on Form 6-K is hereby incorporated by reference in (a) the
registration statement on Form F-3 (Registration No. 333-104748) of
Amarin Corporation plc and in the prospectus contained therein,
(b) the registration statement on Form F-3 (Registration
No. 333-13200) of Amarin Corporation plc and in the prospectus
contained therein, (c) the registration statement on Form F-3
(Registration No. 333-12642) of Amarin Corporation plc and in the
prospectus contained therein, (d) the registration statement on Form
F-3
(Registration No. 333-121431) of Amarin Corporation plc and in the
prospectus contained therein, (e) the registration statement on Form
F-3
(Registration No. 333-121760) of Amarin Corporation plc and in the
prospectus contained therein, (f) the registration statement on Form
F-3
(Registration No. 333-135718) of Amarin Corporation plc and in the
prospectus contained therein and (g) the registration statement on
Form
F-3 (Registration No. 333-131479) of Amarin Corporation plc and in
the
prospectus contained therein, and this report on Form 6-K shall be
deemed
a part of each such registration statement from the date on which
this
report is filed, to the extent not superseded by documents or reports
subsequently filed or furnished by Amarin Corporation plc under the
Securities Act of 1933 or the Securities Exchange Act of
1934.
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EXHIBIT
LIST
Exhibit
|
Description
|
|
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99.1
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Placement
Agency Agreement dated as of December 3, 2007 between the Company
and
Rodman and Renshaw LLC
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|
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99.2
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Senior
Indenture dated as of December 6, 2007 between the Company and Wilmington
Trust Company as the trustee
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|
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99.3
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First
Supplemental Indenture dated as of December 6, 2007 between the Company
and Wilmington Trust Company as the trustee
|
|
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99.4
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Form
of Debenture dated as of December 6, 2007
|
|
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99.5
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Form
of U.S. Equity Purchase Agreement dated as of December 4,
2007
|
|
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99.6
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Form
of Non-U.S. Equity Purchase Agreement dated as of December 4,
2007
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99.7
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Form
of Debt Securities Purchase Agreement dated as of December 4,
2007
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|
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99.8
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Opinion
of Cahill Gordon & Reindel LLP
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
AMARIN
CORPORATION PLC
|
|
By:
/s/
Tom
Maher
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Tom
Maher
|
General
Counsel
|
Date:
December 17, 2007
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.
D.
the
Company has delivered, or will as promptly as practicable deliver, to the
Placement Agent complete conformed copies of the Registration Statement and
of
each consent and certificate of experts, as applicable, filed as a part thereof,
and conformed copies of the Registration Statement (without exhibits), the
Base
Prospectus, the Time of Sale Prospectus, if any, and the Prospectus Supplement,
as amended or supplemented, in such quantities and at such places as the
Placement Agent reasonably requests. Neither the Company nor any of
its directors and officers has distributed and none of them will distribute,
prior to the Closing Date, any offering material in connection with the offering
and sale of the Shares other than the Base Prospectus, the Time of Sale
Prospectus, if any, the Prospectus Supplement, the Registration Statement,
copies of the documents incorporated by reference therein and any other
materials permitted by the Securities Act.
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
By:
/s/
Alan
Cooke
Name: Alan
Cooke
Title:
President, CFO
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
1
|
Include
legend in Global Note only.
|
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:
|
__________________________________
|
|
Name:
|
|
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
[FORM
OF
REVERSE 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-100th 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)
|
YourSignature: __________________________________________
|
|
(Sign
exactly as your name appears on the face of this
Debenture)
|
SignatureGuarantee*:
|
|
*
|
Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the
Trustee).
|
FORM
OF CONVERSION NOTICE
TO:
|
Amarin
Corporation plc
|
|
7
Curzon Street
|
|
London
W1J 5HG, England
|
Re:
8%
Convertible Debentures due 2010 (the “Debentures”)
The
undersigned registered owner of this Debenture hereby irrevocably exercises
the
option to convert this Debenture, or the portion hereof (the principal amount
of
which is an integral multiple of $1,000.00) below designated, into cash and
any
ADSs required to be delivered in accordance with the terms of the Supplemental
Indenture and Indenture referred to in the Debenture, and directs that the
ADSs
issuable and deliverable upon such conversion, together with any check in
payment for the cash portion of the settlement amount for any fractional ADSs
and any Debentures representing any unconverted principal amount hereof, be
issued and delivered to the physical or registered holder hereof, as the case
may be, unless a different name has been indicated below. If ADSs or any portion
of this Debenture not converted are to be issued in the name of a Person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto. Any amount required to be paid to the undersigned on account
of
interest accompanies this Debenture.
The
undersigned hereby certifies that it has paid or hereby agrees 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.
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*: _____________________________________
|
|
Tel.
No. at which can be
reached: _____________________________
|
|
Social
Security or other Taxpayer
Identification
Number: _____________________________________
|
|
Principal
Amount to be
Converted
(if less than
all): $ ________________________________
|
*
Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to Amarin Corporation plc).
Fill
in
for registration of Debentures (if to be delivered) other than to and in the
name of the physical or registered holder, as the case may be:
__________________________________________________________________
|
(Name)
|
__________________________________________________________________
|
(Street
Address)
|
__________________________________________________________________
|
(City,
State and Zip Code)
|
Delivery
instructions for ADSs to be issued:
|
DTC
Participant Account
No.: _________________________________________
|
Account
No. for investor at DTC
Participant: _____________________
|
Contact
person at DTC
Participant:_____________________________
|
Daytime
Tel. No. of contact person at DTC
Participant:______________
|
Email
of contact person at DTC
Participant:_______________________
|
A-11
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*:
*
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
FORM
OF CONVERSION NOTICE
TO: Amarin
Corporation plc
7
Curzon
Street
London
W1J 5HG, England
Re:
8%
Convertible Debentures due 2010 (the “Debentures”)
The
undersigned registered owner of this Debenture hereby irrevocably exercises
the
option to convert this Debenture, or the portion hereof (the principal amount
of
which is an integral multiple of $1,000.00) below designated, into cash and
any
ADSs required to be delivered in accordance with the terms of the Supplemental
Indenture and Indenture referred to in the Debenture, and directs that the
ADSs
issuable and deliverable upon such conversion, together with any check in
payment for the cash portion of the settlement amount for any fractional ADSs
and any Debentures representing any unconverted principal amount hereof, be
issued and delivered to the physical or registered holder hereof, as the case
may be, unless a different name has been indicated below. If ADSs or any portion
of this Debenture not converted are to be issued in the name of a Person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto. Any amount required to be paid to the undersigned on account
of
interest accompanies this Debenture.
The
undersigned hereby certifies that it has paid or hereby agrees 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.
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*:
Tel.
No. at which can be
reached:*
Social
Security or other Taxpayer
Identification
Number:
Principal Amount to be
Converted (if less than all):
$
_____________________________
*
Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to Amarin Corporation plc).
Fill
in
for registration of Debentures (if to be delivered) other than to and in the
name of the physical or registered holder, as the case may be:
(Name)
(Street
Address)
(City, State and Zip Code)
D
elivery
instructions for ADSs to be issued:
DTC Participant Account
No.:
Acc
ount
No.
for investor at DTC
Participant:
Contact person at DTC
Participant:
Daytime Tel. No. of contact person at DTC
Participant:
Email of contact person at DTC
Participant:
Exhibit
99.5
EQUITY
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “
Agreement
”) is dated as of December
4, 2007, between Amarin Corporation plc, a corporation formed under the laws
of
England and Wales (the “
Company
”), and each purchaser identified on the
signature pages hereto (each, including its successors and assigns, a
“
Purchaser
” and collectively the “
Purchasers
”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
an effective registration statement under the Securities Act of 1933, as amended
(the “
Securities Act
”), the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company, securities of the Company as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agree as
follows:
ARTICLE
1
DEFINITIONS
Section
1.1
Definitions
. In addition to the
terms defined elsewhere in this Agreement, for all purposes of this Agreement,
the following terms have the meanings set forth in this Section
1.1:
“
ADSs
”
means American Depositary Shares, each representing one Ordinary Share of the
Company, par value GBP 0.05 per share, and each evidenced by an American
Depositary Receipt, issued pursuant to the terms of the Deposit
Agreement.
“
Affiliate
”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
a
Person as such terms are used in and construed under Rule 405 under the
Securities Act. With respect to a Purchaser, any investment fund or
managed account that is managed on a discretionary basis by the same investment
manager as such Purchaser will be deemed to be an Affiliate of such
Purchaser.
“
Board
of Directors
” means the board of directors of the Company.
“
Business
Day
” means any day except any Saturday, any Sunday, any day which is a
federal legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by law or
other
governmental action to close.
“
Closing
”
means the closing of the purchase and sale of the Securities pursuant to Section
2.1.
“
Closing
Date
” has the meaning set forth in Section 2.1(3).
“
Commission
”
means the Securities and Exchange Commission.
“
Common
Stock
” means the Ordinary Shares of the Company, par value GBP 0.05 per
share, and any other class of securities into which such securities may
hereafter be reclassified or changed into.
“
Common
Stock Equivalents
” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.
“
Company
Counsel
” means Cahill Gordon & Reindel LLP, New York, NY, and
Kirkpatrick & Lockhart Preston Gates Ellis LLP, London,
England.
“
Deposit
Agreement
” means the Company’s agreement with National City Nominees Limited
of Citigroup Centre, Canada Square, Canary Wharf, London, E14 5LB, being the
nominee of Citibank, N.A., the Company’s depositary for its ADS program (the
“
ADS Depositary
”).
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
“
Exempt
Issuance
” means the issuance of (a) shares of Common Stock or options to
employees, officers or directors of the Company pursuant to any stock or option
plan duly adopted for such purpose, by a majority of the non-employee members
of
the Board of Directors or a majority of the members of a committee of
non-employee directors established for such purpose, (b) securities upon the
exercise or exchange of or conversion of any Securities issued hereunder and/or
other securities exercisable or exchangeable for or convertible into shares
of
Common Stock issued and outstanding on the date of this Agreement, provided
that
such securities have not been amended since the date of this Agreement to
increase the number of such securities or to decrease the exercise, exchange
or
conversion price of such securities, (c) warrants to purchase 10,000 shares
of
Common Stock issued or to be issued to Dan Fischer and shares of Common Stock
upon exercise thereof, (d) shares of Common Stock in connection with the
acquisition by the Company of Ester Neurosciences Ltd., an Israeli company,
pursuant to the definitive agreement relating thereto, and payment of related
fees, (e) the convertible debt and equity financings concurrently being offered
by the Company as described in the Prospectus Supplement, and (f) securities
issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, provided that any such issuance
shall only be to a Person which is, itself or through its subsidiaries, an
operating company in a business synergistic with the business of the Company
and
in which the Company receives benefits in addition to the investment of funds,
but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities.
“
FWS
”
means Feldman Weinstein & Smith LLP with offices located at 420 Lexington
Avenue, Suite 2620, New York, New York 10170-0002.
“
Material
Adverse Effect
” shall have the meaning assigned to such term in the
Placement Agency Agreement between the Placement Agent and the
Company.
“
Per
Unit Purchase Price
” equals $0.33.
“
Person
”
means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other entity
of any kind.
“
Placement
Agent
” means Rodman & Renshaw, LLC.
“
Prospectus
”
means the final prospectus filed for the Registration Statement.
“
Prospectus
Supplement
” means the supplement to the Prospectus complying with Rule
424(b) of the Securities Act that is filed with the Commission and delivered
by
the Company to each Purchaser at the Closing.
“
Purchaser
Party
” shall have the meaning ascribed to such term in Section
4.8.
“
Registration
Statement
” means the effective registration statement with Commission file
No. 333-135718 which registers the sale of the Shares, the Warrants and the
Warrant Shares to the Purchasers.
“
Rule
144
” means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.
“
Securities
”
means the Shares, the Warrants and the Warrant Shares.
“
Securities
Act
” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“
Shares
”
means the ADSs issued or issuable to each Purchaser pursuant to this
Agreement.
“
Short
Sales
” means all “short sales” as defined in Rule 200 of Regulation SHO
under the Exchange Act (but shall not be deemed to include the location and/or
reservation of borrowable shares of Common Stock).
“
Subscription
Amount
” means, as to each Purchaser, the aggregate amount to be paid for
Shares and Warrants purchased hereunder as specified below such Purchaser’s name
on the signature page of this Agreement and next to the heading “Subscription
Amount,” in United States dollars and in immediately available funds, and shall
equal the Per Unit Purchase Price times the number specified below such
Purchaser’s name on the signature page of this Agreement and next to the heading
“Shares.”
“
Subsidiary
”
means any subsidiary of the Company and shall, where applicable, include any
subsidiary of the Company formed or acquired after the date hereof.
“
Trading
Day
” means a day on which the NASDAQ Capital Market is open for
trading.
“
Trading
Market
” means the following markets or exchanges on which the Common Stock
is listed or quoted for trading on the date in question: the American Stock
Exchange, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global
Select Market, the New York Stock Exchange or the OTC Bulletin
Board.
“
Transaction
Documents
” means this Agreement, the Warrants and any other documents or
agreements executed in connection with the purchase and sale of the Securities
to the Purchasers hereunder.
“
Warrants
”
means, collectively, the Share purchase warrants delivered to the Purchasers
at
the Closing in accordance with Section 2.2(a) hereof, which Warrants shall
be
exercisable immediately and have a term of exercise equal to 5 years, in the
form of
Exhibit A
attached hereto.
“
Warrant
Shares
” means the Shares issuable upon exercise of the
Warrants.
ARTICLE
2
PURCHASE
AND SALE
Section
2.1.
Purchase and Sale;
Procedures
. At the Closing, upon the terms and subject to the
conditions set forth herein, the Company agrees to sell, and the Purchasers,
severally and not jointly, agree to purchase, up to an aggregate of $1,000,000
of Shares and Warrants. The purchase and sale of the Securities to
each Purchaser hereunder is expressly conditioned on (a) the public announcement
by the Company that it has entered into a definitive agreement for the
acquisition by the Company of Ester Neurosciences Ltd., an Israeli company,
and
that it intends to call an extraordinary general meeting of shareholders to
effect a reverse stock split for the purpose of bringing the Company into
compliance with the continuing listing requirements of the Nasdaq Capital Market
(the “
Announcement
”), and (b) such Purchaser’s satisfactory review of the
Prospectus Supplement. Prior to the satisfaction of each of such conditions,
this Agreement shall only constitute an indication of interest by the Purchaser
in the offered securities. The process for funding and delivery of the
Securities to each Purchaser shall be as follows:
(1) no
later than 4:00 PM Eastern Standard Time in the United States (“
EST
”) on
the date of this Agreement, the Purchaser shall deliver executed signature
pages
hereto, and the Company shall deliver legal opinions of Company Counsel,
substantially in the forms of
Exhibits B
and
C
attached hereto, in
each case to a mutually-agreed third party to be held pending release of
funds;
(2) prior
to the end of the calendar day on the date of this Agreement, the Company shall
provide to each Purchaser a copy of the Prospectus Supplement;
(3) the
Company plans to make the Announcement prior to 7:30 AM EST on the business
day
following the date of this Agreement, whereupon the condition in clause (a)
above shall be satisfied;
(4) on
the business day following the date of this Agreement (assuming the condition
in
clause (a) above is satisfied as provided in the preceding clause (3)), (A)
at
7:30 AM EST, the condition in clause (b) above shall be satisfied, unless prior
to that time the Company receives notice in writing from the Purchaser that
the
Purchaser is not satisfied with the Prospectus Supplement,
such notice
to be faxed to: 011 3531 66 99 028, Attention: Tom Maher, or e-mailed to:
tom.maher@amarincorp.com
; (B) simultaneously with the satisfaction of
the condition in clause (b) above as provided in the preceding clause (A),
the
signature pages and legal opinion referred to in clause (1) shall be released
to
the parties, and (C) no later than 5:00 PM EST, the Purchaser shall deliver
immediately available funds equal to its Subscription Amount by wire transfer
to
the following account of the Company:
Bank:
|
Wachovia
Bank, NY, USA
|
ABA
No:
|
026–005–092
|
For
the account of:
|
Lloyds
TSB plc
|
Swift
Code:
|
PNBPUS3NNYC
|
|
|
For
further credit to:
|
|
|
|
Lloyds
TSB,
|
|
Minster
Place
|
|
Ely,
Cambridge
|
|
CB7
4EN
|
|
U.K.
|
|
|
|
Account
Name:
|
Amarin
Corporation plc
|
Account
No:
|
11427458
|
Sort
Code:
|
30
– 93 – 05
|
Swift
Code:
|
LOYDGB21265
|
IBAN
No:
|
GB82
LOYD 3093 0511 4274 58
|
(the
date
on which these events occur, the “
Closing Date
”); and
(5) on
the business day following the Closing Date (the “
Securities Delivery
Date
”), subject, as to each Purchaser, to receipt of such Purchaser’s
Subscription Amount by the Company, the Company shall commence issuing the
Securities by (a) causing the CREST account of the nominee of the ADS Depositary
to be credited with the Shares issued and sold hereunder, (b) instructing the
ADS Depositary to issue American Depositary Receipts evidencing ADSs in the
amount to be registered to a nominated Depository Trust Company (“
DTC
”)
account designated by the Purchaser in writing, and (c) issuing to the Purchaser
a Warrant registered in the name of such Purchaser to purchase up to a number
of
shares of Common Stock equal to 50% of such Purchaser’s Subscription Amount
divided by 0.33, with an exercise price equal to $0.48, subject to adjustment
as
provided therein (such Warrant certificate may be delivered within three Trading
Days of the Closing Date).
Section
2.2
Closing
. The
Closing shall occur at the offices of FWS or such other location as the parties
shall mutually agree.
Section
2.3
Closing
Conditions
.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Purchasers contained herein;
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed
at or prior to the Closing Date shall have been performed; and
(iii) the
delivery by each Purchaser of the items to be delivered by it as set forth
in
Section 2.1 of this Agreement, excluding the delivery of the Shares, which
occurs on the Securities Delivery Date.
(b) The
respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Company contained herein;
(ii) all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items to be delivered by it as set forth in
Section 2.1 of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since
the
date hereof; and
(v) from
the date hereof to the Closing Date, trading in the Common Stock shall not
have
been suspended by the Commission or the Company’s principal Trading Market
(except for any suspension of trading of limited duration agreed to by the
Company, which suspension shall be terminated prior to the Closing), and, at
any
time prior to the Closing Date, trading in securities generally as reported
by
Bloomberg L.P. shall not have been suspended or limited, or minimum prices
shall
not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been
declared either by the United States or New York State authorities nor shall
there have occurred any material outbreak or escalation of hostilities or other
national or international calamity of such magnitude in its effect on, or any
material adverse change in, any financial market which, in each case, in the
reasonable judgment of each Purchaser, makes it impracticable or inadvisable
to
purchase the Securities at the Closing.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
Section
3.1
Representations and Warranties
of the Company
. The Company makes to each Purchaser each of the
representations and warranties made by the Company to the Placement Agent in
the
Placement Agency Agreement between them a copy of which is available to the
Purchaser upon request therefor to the Company. In addition, the
Company makes the following additional representations and warranties to each
Purchaser:
(a)
Acknowledgment
Regarding Purchasers’ Purchase of Securities
. The Company
acknowledges and agrees that each of the Purchasers is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated thereby. The Company further
acknowledges that no Purchaser is acting as a financial advisor or fiduciary
of
the Company (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated thereby and any advice given by
any
Purchaser or any of their respective representatives or agents in connection
with the Transaction Documents and the transactions contemplated thereby is
merely incidental to the Purchasers’ purchase of the Securities. The
Company further represents to each Purchaser that the Company’s decision to
enter into this Agreement and the other Transaction Documents has been based
solely on the independent evaluation of the transactions contemplated hereby
by
the Company and its representatives.
(b)
Acknowledgement
Regarding Purchaser’s Trading Activity
. Anything in this
Agreement or elsewhere herein to the contrary notwithstanding (except for
Sections 3.2(e) and 4.13 hereof), it is understood and acknowledged by the
Company (i) that none of the Purchasers have been asked by the Company to agree,
nor has any Purchaser agreed, to desist from purchasing or selling, long and/or
short, securities of the Company, or “derivative” securities based on securities
issued by the Company or to hold the Securities for any specified term; (ii)
that past or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement
transactions, may negatively impact the market price of the Company’s
publicly-traded securities; (iii) that any Purchaser, and counter-parties in
“derivative” transactions to which any such Purchaser is a party, directly or
indirectly, presently may have a “short” position in the Common Stock, (iv) that
each Purchaser shall not be deemed to have any affiliation with or control
over
any arm’s length counter-party in any “derivative” transaction, (v) that one or
more Purchasers may engage in hedging activities at various times during the
period that the Securities are outstanding, including, without limitation,
during the periods that the value of the Warrant Shares deliverable with respect
to Securities are being determined, (vi) that such hedging activities (if any)
could reduce the value of the existing stockholders’ equity interests in the
Company at and after the time that the hedging activities are being conducted,
and (vii) that such aforementioned hedging activities do not constitute a breach
of any of the Transaction Documents.
Section
3.2
Representations and Warranties
of the Purchasers
. Each Purchaser, for itself and for no other
Purchaser, hereby represents and warrants as of the date hereof and as of the
Closing Date to the Company as follows:
(a)
Organization;
Authority
. Such Purchaser is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate or partnership power and authority
to
enter into and to consummate the transactions contemplated by this Agreement
and
otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of this Agreement and performance by such Purchaser of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate or similar action on the part of such
Purchaser. Each Transaction Document to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b)
Own
Account
. Such Purchaser is acquiring the Securities as principal
for its own account and not with a view to or for distributing or reselling
such
Securities or any part thereof in violation of the Securities Act or any
applicable state securities law, has no present intention of distributing any
of
such Securities in violation of the Securities Act or any applicable state
securities law and has no direct or indirect arrangement or understandings
with
any other persons to distribute or regarding the distribution of such Securities
(this representation and warranty not limiting such Purchaser’s right to sell
the Securities immediately pursuant to the Registration Statement or otherwise
in compliance with applicable federal and state securities laws) in violation
of
the Securities Act or any applicable state securities law. Such
Purchaser is acquiring the Securities hereunder in the ordinary course of its
business.
(c)
Purchaser
Status
. At the time such Purchaser was offered the Securities, it
was, and at the date hereof it is, and on each date on which it exercises any
Warrants, it will be either: (i) an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii)
a
“qualified institutional buyer” as defined in Rule 144A(a) under the Securities
Act. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(d)
Experience
of Such Purchaser
. Such Purchaser, either alone or together with
its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits
and
risks of the prospective investment in the Securities, and has so evaluated
the
merits and risks of such investment. Such Purchaser is able to bear
the economic risk of an investment in the Securities and, at the present time,
is able to afford a complete loss of such investment.
(e)
Short
Sales and Confidentiality Prior to the Date Hereof
. Other than
consummating the transactions contemplated hereunder, such Purchaser has not,
nor has any Person acting on behalf of or pursuant to any understanding with
such Purchaser, directly or indirectly executed any purchases or sales,
including Short Sales, of the securities of the Company during the period
commencing from the time that such Purchaser first received a term sheet
(written or oral) from the Company or any other Person representing the Company
setting forth the material terms of the transactions contemplated hereunder
(“Discussion Time”). Notwithstanding the foregoing, in the case of a
Purchaser that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets and the portfolio
managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s assets, the
representation set forth above shall only apply with respect to the portion
of
assets managed by the portfolio manager that made the investment decision to
purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement, such Purchaser has maintained the
confidentiality of all disclosures made to it in connection with this
transaction (including the existence and terms of this
transaction).
ARTICLE
4
OTHER
AGREEMENTS OF THE PARTIES
Section
4.1
Warrant Shares
. If all or any
portion of a Warrant is exercised at a time when there is an effective
registration statement to cover the issuance or resale of the Warrant Shares,
the Warrant Shares issued pursuant to any such exercise shall be issued free
of
all legends. If at any time following the date hereof the
Registration Statement (or any subsequent registration statement registering
the
Warrant Shares) is not effective or is not otherwise available for the sale
or
resale of the Warrant Shares, the Company shall immediately notify the holders
of the Warrants in writing that such registration statement is not then
effective and thereafter shall promptly notify such holders when the
registration statement is effective again and available for the sale or resale
of the Warrant Shares. The Company shall use best efforts to keep a
registration statement (including the Registration Statement) registering the
issuance or resale of the Warrant Shares effective during the term of the
Warrants.
Section
4.2
Furnishing of
Information
. Until the earliest of the time that (i) no Purchaser
owns Securities (based solely on a review of the transfer agent’s list of
registered holders of Common Stock, a list of non-objecting beneficial holders
and the Company’s registry for the Warrants) or (ii) the Warrants have expired,
the Company covenants to timely file (or obtain extensions in respect thereof
and file within the applicable grace period) all reports required to be filed
by
the Company after the date hereof pursuant to the Exchange Act even if the
Company is not then subject to the reporting requirements of the Exchange
Act. As long as any Purchaser owns Securities, if the Company is not
required to file reports pursuant to the Exchange Act, it will prepare and
furnish to the Purchasers and make publicly available in accordance with Rule
144(c) such information as is required for the Purchasers to sell the Securities
under Rule 144. The Company further covenants that, if at any time
following the date hereof the Registration Statement (or any subsequent
registration statement registering the Warrant Shares) is not effective or
is
not otherwise available for the sale or resale of the Warrant Shares, it will
take such further action as any Purchaser may reasonably request, to the extent
required from time to time, to enable such Purchaser to sell such Warrant Shares
without registration under the Securities Act within the requirements of the
exemption provided by Rule 144.
Section
4.3
Integration
. The Company shall not
sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in Section 2 of the Securities Act) that would
be
integrated with the offer or sale of the Securities for purposes of the rules
and regulations of any Trading Market such that it would require shareholder
approval prior to the closing of such other transaction unless shareholder
approval is obtained before the closing of such subsequent
transaction.
Section
4.4
Securities Laws Disclosure;
Publicity
. The Company shall, by 8:30 a.m. (New York City time)
on the Trading Day immediately following the Closing Date, issue a Current
Report on Form 6-K, disclosing the material terms of the purchase and sale
of
the Securities pursuant to this Agreement, and filing the Transaction Documents
as exhibits thereto. Notwithstanding the foregoing, the Company shall
not publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any filing with the Commission or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (i) as
required by federal securities law in connection with the filing of final
Transaction Documents (including signature pages thereto) with the Commission
and (ii) to the extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Purchasers with prior
notice of such disclosure permitted under this clause (ii).
Section
4.5
Shareholder Rights Plan
. No claim will be
made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share
acquisition, business combination, poison pill (including any distribution
under
a rights agreement) or similar anti-takeover plan or arrangement in effect
or
hereafter adopted by the Company, or that any Purchaser could be deemed to
trigger the provisions of any such plan or arrangement, by virtue of receiving
Securities under the Transaction Documents or under any other agreement between
the Company and the Purchasers.
Section
4.6
Non-Public
Information
. Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents, the
Company covenants and agrees that neither it nor any other Person acting on
its
behalf will provide any Purchaser or its agents or counsel with any information
that the Company believes constitutes material non-public information, unless
prior thereto such Purchaser shall have executed a written agreement regarding
the confidentiality and use of such information. The Company
understands and confirms that each Purchaser shall be relying on the foregoing
covenant in effecting transactions in securities of the Company.
Section
4.7
Use of Proceeds
. Except as set
forth on Schedule 4.7 attached hereto, the Company shall use the net proceeds
from the sale of the Securities hereunder for working capital purposes and
shall
not use such proceeds for (a) the satisfaction of any portion of the Company’s
debt (other than payment of trade payables in the ordinary course of the
Company’s business and prior practices), (b) the redemption of any Common Stock
or Common Stock Equivalents or (c) the settlement of any outstanding
litigation.
Section
4.8
Indemnification of
Purchasers
. Subject to the provisions of this Section 4.8, to the
extent permitted by law, the Company will indemnify and hold each Purchaser
and
its directors, officers, shareholders, members, partners, agents and employees
(and any other Persons with a functionally equivalent role of a Person holding
such titles notwithstanding a lack of
such
title or any other title), each Person who controls such Purchaser (within
the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act),
and the directors, officers, shareholders, members, partners, agents or
employees (and any other Persons with a functionally equivalent role of a Person
holding such titles notwithstanding a lack of such title or any other title)
of
such controlling persons (each, a “
Purchaser Party
”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs
and expenses, including all judgments, amounts paid in settlements, court costs
and reasonable attorneys’ fees and costs of investigation that any such
Purchaser Party may suffer or incur as a result of or relating to (a) any breach
of any of the representations, warranties, covenants or agreements made by
the
Company in this Agreement or in the other Transaction Documents or (b) any
action instituted against a Purchaser in any capacity, or any of them or their
respective Affiliates, by any stockholder of the Company who is not an Affiliate
of such Purchaser, with respect to any of the transactions contemplated by
the
Transaction Documents (unless such action is based upon a breach of such
Purchaser’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser may have with
any
such stockholder or any violations by the Purchaser of state or federal
securities laws or any conduct by such Purchaser which constitutes fraud, gross
negligence, willful misconduct or malfeasance). If any action shall
be brought against any Purchaser Party in respect of which indemnity may be
sought pursuant to this Agreement, such Purchaser Party shall promptly notify
the Company in writing, and the Company shall have the right to assume the
defense thereof with counsel of its own choosing reasonably acceptable to the
Purchaser Party. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but
the fees and expenses of such counsel shall be at the expense of such Purchaser
Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or (iii)
in such action there is, in the reasonable opinion of such separate counsel,
a
material conflict on any material issue between the position of the Company
and
the position of such Purchaser Party, in which case the Company shall be
responsible for the reasonable fees and expenses of no more than one such
separate counsel. The Company will not be liable to any Purchaser
Party under this Agreement (i) for any settlement by a Purchaser Party effected
without the Company’s prior written consent, which shall not be unreasonably
withheld or delayed; or (ii) to the extent, but only to the extent that a loss,
claim, damage or liability is attributable to any Purchaser Party’s breach of
any of the representations, warranties, covenants or agreements made by such
Purchaser Party in this Agreement or in the other Transaction
Documents.
Section
4.9
Reservation of Common Stock
. As of the
date hereof, the Company has reserved and the Company shall continue to reserve
and keep available at all times, free of preemptive rights, a sufficient number
of shares of Common Stock for the purpose of enabling the Company to issue
Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise
of
the Warrants.
Section
4.10
Listing of Common Stock
. The Company
hereby agrees to use all commercially reasonable efforts to maintain the listing
of the Common Stock on a Trading Market, and as soon as reasonably practicable
following the Closing to list all of the Shares and Warrant Shares on such
Trading Market. The Company further agrees, if the Company applies to
have the Common Stock traded on any other Trading Market, it will include in
such application all of the Shares and Warrant Shares, and will take such other
action as is necessary to cause all of the Shares and Warrant Shares to be
listed on such other Trading Market as promptly as possible. The
Company will use all commercially reasonable efforts to continue the listing
and
trading of its Common Stock on a Trading Market.
Section
4.11
Equal Treatment of Purchasers
. No
consideration shall be offered or paid to any Person to amend or consent to
a
waiver or modification of any provision of any of the Transaction Documents
unless the same consideration is also offered to all of the parties to the
Transaction Documents. For clarification purposes, this provision
constitutes a separate right granted to each Purchaser by the Company and
negotiated separately by each Purchaser, and is intended for the Company to
treat the Purchasers as a class and shall not in any way be construed as the
Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of Securities or otherwise.
Section
4.12
Subsequent Equity Sales
.
(a) From
the date hereof until 45 days after the Closing Date, neither the Company nor
any Subsidiary shall issue shares of Common Stock or Common Stock Equivalents;
provided
,
however
, the 45 day period set forth in this Section
4.12 shall be extended for the number of Trading Days during such period in
which (i) trading in the Common Stock is suspended by any Trading Market, or
(ii) the Registration Statement is not effective or the prospectus included
in
the Registration Statement may not be used by the Purchasers for the resale
of
the Shares and Warrant Shares.
(b) From
the date hereof until such time as no Purchaser holds any of the Securities
(based solely on a review of the transfer agent’s list of registered holders of
Common Stock, a list of non-objecting beneficial holders and the Company’s
registry for the Warrants), the Company shall be prohibited from effecting
or
entering into an agreement to effect any Subsequent Financing involving a
Variable Rate Transaction. “
Variable Rate Transaction
” means a
transaction in which the Company issues or sells any debt or equity securities
that are convertible into, exchangeable or exercisable for, or include the
right
to receive additional shares of Common Stock at a conversion, exercise or
exchange rate or other price that is based upon and/or varies with the trading
prices of or quotations for the shares of Common Stock at any time after the
initial issuance of such debt or equity securities. The Purchasers
shall be entitled to obtain injunctive relief against the Company to preclude
any such issuance, which remedy shall be in addition to any right to collect
damages.
(c) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt
Issuance, except that no Variable Rate Transaction shall be an Exempt
Issuance.
Section
4.13
Short Sales and Confidentiality After the Date
Hereof
. Each Purchaser, severally and not jointly with the other
Purchasers, covenants that neither it nor any Affiliate acting on its behalf
or
pursuant to any understanding with it will execute any Short Sales during the
period commencing at the Discussion Time and ending at the time that the
conditions in Sections 2.1(a) and 2.1(b) are deemed satisfied as provided in
Sections 2.1(3) and 2.1(4) (the “
Time of Satisfaction
”). Each
Purchaser, severally and not jointly with the other Purchasers, covenants that
until such Time of Satisfaction, such Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the
information included in the Disclosure Schedules. Notwithstanding the
foregoing, no Purchaser makes any representation, warranty or covenant hereby
that it will not engage in Short Sales in the securities of the Company after
the Time of Satisfaction. Notwithstanding the foregoing, in the case
of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser’s assets and the
portfolio managers have no direct knowledge of the investment decisions made
by
the portfolio managers managing other portions of such Purchaser’s assets, the
covenant set forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision to purchase
the Securities covered by this Agreement.
Section
4.14
Delivery of Securities After
Closing
. The Company shall deliver, or cause to be delivered, the
respective Securities purchased by each Purchaser to such Purchaser within
3
Trading Days of the Closing Date.
ARTICLE
5
MISCELLANEOUS
Section
5.1
Termination
. This Agreement may be
terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and
the
other Purchasers, by written notice to the other parties, if the Closing has
not
been consummated on or before December 15, 2007;
provided
,
however
, that no such termination will affect the right of any party
to
sue for any breach by the other party (or parties).
Section
5.2
Fees and Expenses
. Except as expressly set
forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts,
if
any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this
Agreement. The Per Unit Purchase Price includes costs of issuance,
such as all Transfer Agent fees, stamp taxes and other taxes and duties levied
in connection with the delivery of any Securities to the
Purchasers.
Section
5.3
Entire Agreement
. The Transaction Documents,
together with the exhibits and schedules thereto, the Prospectus and the
Prospectus Supplement, contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.
Section
5.4
Notices
. Any and all notices or
other communications or deliveries required or permitted to be provided
hereunder shall be in writing and shall be deemed given and effective on the
earliest of (a) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number set forth on the signature
pages
attached hereto prior to 5:30 p.m. (New York City time) on a Trading Day, (b)
the next Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth
on
the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the 2nd Trading
Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and
communications shall be as set forth on the signature pages attached
hereto.
Section
5.5
Amendments; Waivers
. No provision
of this Agreement may be waived or amended except in a written instrument
signed, in the case of an amendment, by the Company and the Purchasers of at
least 85% of the Shares still held by the Purchasers or, in the case of a
waiver, by the party against whom enforcement of any such waived provision
is
sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair
the
exercise of any such right.
Section
5.6
Headings
. The headings herein are for
convenience only, do not constitute a part of this Agreement and shall not
be
deemed to limit or affect any of the provisions hereof.
Section
5.7
Successors and Assigns
. This Agreement
shall be binding upon and inure to the benefit of the parties and their
successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser (other than by merger). Any Purchaser may
assign any or all of its rights under this Agreement to any Person to whom
such
Purchaser assigns or transfers any Securities, provided such transferee agrees
in writing to be bound, with respect to the transferred Securities, by the
provisions of the Transaction Documents that apply to the
“Purchasers.”
Section
5.8
No Third-Party Beneficiaries
. This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set
forth
in Section 4.8.
Section
5.9
Governing Law
. All questions concerning the
construction, validity, enforcement and interpretation of the Transaction
Documents shall be governed by and construed and enforced in accordance with
the
internal laws of the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively
in
the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper or is an inconvenient venue for
such
proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Agreement and agrees that such service
shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law. If
either party shall commence an action or proceeding to enforce any provisions
of
the Transaction Documents, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
Section
5.10
Survival
. The representations and
warranties contained herein shall survive the Closing and the delivery of the
Shares and Warrant Shares.
Section
5.11
Execution
. This Agreement may be executed in
two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event
that any signature is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
Section
5.12
Severability
. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the
terms, provisions, covenants and restrictions set forth herein shall remain
in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their commercially reasonable efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction.
It
is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
Section
5.13
Rescission and Withdrawal
Right
. Notwithstanding anything to the contrary contained in (and
without limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election, demand or option
under a Transaction Document and the Company does not timely perform its related
obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to
the
Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights;
provided
,
however
, in
the case of a rescission of an exercise of a Warrant, the Purchaser shall be
required to return any shares of Common Stock delivered in connection with
any
such rescinded exercise notice.
Section
5.14
Replacement of Securities
. If any
certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof (in the case of mutilation),
or
in lieu of and substitution therefor, a new certificate or instrument, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction. The applicant for a new certificate or
instrument under such circumstances shall also pay any reasonable third-party
costs (including customary indemnity) associated with the issuance of such
replacement Securities.
Section
5.15
Remedies
. In addition to being entitled
to exercise all rights provided herein or granted by law, including recovery
of
damages, each of the Purchasers and the Company will be entitled to specific
performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations contained in the Transaction Documents
and
hereby agrees to waive and not to assert in any action for specific performance
of any such obligation the defense that a remedy at law would be
adequate.
Section
5.16
Payment Set Aside
. To the extent that
the Company makes a payment or payments to any Purchaser pursuant to any
Transaction Document or a Purchaser enforces or exercises its rights thereunder,
and such payment or payments or the proceeds of such enforcement or exercise
or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are required to be
refunded, repaid or otherwise restored to the Company, a trustee, receiver
or
any other person under any law (including, without limitation, any bankruptcy
law, state or federal law, common law or equitable cause of action), then to
the
extent of any such restoration the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not
occurred.
Section
5.17
Independent Nature of Purchasers’ Obligations and
Rights
. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser,
and no Purchaser shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any Transaction
Document. Nothing contained herein or in any other Transaction
Document, and no action taken by any Purchaser pursuant thereto, shall be deemed
to constitute the Purchasers as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that the Purchasers are
in
any way acting in concert or as a group with respect to such obligations or
the
transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation, the rights arising out of this Agreement or out
of
the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate
legal counsel in their review and negotiation of the Transaction
Documents. For reasons of administrative convenience only, Purchasers
and their respective counsel have chosen to communicate with the Company through
FWS. FWS does not represent all of the Purchasers but only the
Placement Agent. The Company has elected to provide all Purchasers
with the same terms and Transaction Documents for the convenience of the Company
and not because it was required or requested to do so by the
Purchasers.
Section
5.18
Liquidated Damages
. The Company’s
obligations to pay any partial liquidated damages or other amounts owing under
the Transaction Documents is a continuing obligation of the Company and shall
not terminate until all unpaid partial liquidated damages and other amounts
have
been paid notwithstanding the fact that the instrument or security pursuant
to
which such partial liquidated damages or other amounts are due and payable
shall
have been canceled.
Section
5.19
Saturdays, Sundays, Holidays,
etc
. If the last or appointed day for the taking of any action or
the expiration of any right required or granted herein shall not be a Business
Day, then such action may be taken or such right may be exercised on the next
succeeding Business Day.
Section
5.20
Construction
. The parties agree
that each of them and/or their respective counsel has reviewed and had an
opportunity to revise the Transaction Documents and, therefore, the normal
rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of the
Transaction Documents or any amendments hereto.
Section
5.21
Waiver of Jury Trial
. In any action,
suit or proceeding in any jurisdiction brought by any party against any other
party, the parties each knowingly and intentionally, to the greatest extent
permitted by applicable law, hereby absolutely, unconditionally, irrevocably
and
expressly waives forever trial by jury.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
AMARIN
CORPORATION PLC
|
|
Address
for Notice
:
|
By:
|
______________________________________
|
|
Fax:
|
|
Name:
|
|
|
|
Title:
|
|
|
With
a
copy to (which shall not constitute notice):
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO AMRN SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Purchaser:____________________________________________________________________________________
|
|
Signature
of Authorized Signatory of
Purchaser
:_____________________________________________________________
|
|
Name
of Authorized
Signatory:___________________________________________________________________________
|
|
Title
of Authorized
Signatory:____________________________________________________________________________
|
|
Email
Address of
Purchaser:_____________________________________________________________________________
|
|
Fax
Number of
Purchaser:_______________________________________________________________________________
|
|
Address
for Notice of Purchaser:
|
|
|
Address
for Delivery of Securities for Purchaser (if not same as address
for
notice):
|
|
|
Subscription
Amount:
$______________________________________________________
|
|
Shares:___________________________________________________________________
|
|
Warrant
Shares:____________________________________________________________
|
|
EIN
Number:
[PROVIDE THIS UNDER SEPARATE
COVER]
|
Name
of
Purchaser:_________________________________________________________
|
DTC
Account Details:
Name
of DTC Participant:
|
|
_________________________________________________________
|
(your
broker or custodian bank)
|
|
Address
of DTC Participant:
|
|
_________________________________________________________
|
(address
of your broker or custodian bank)
|
|
_________________________________________________________
|
_________________________________________________________
|
|
DTC
Participant Account Number:
|
|
_________________________________________________________
|
|
Client
Account (“Account Holder”) number at DTC Participant:
|
|
_________________________________________________________
|
|
Address
of Account Holder:
|
|
_________________________________________________________
|
_________________________________________________________
|
_________________________________________________________
|
|
|
|
-19-
Exhibit
99.6
EQUITY
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “
Agreement
”) is dated as of December
4, 2007, between Amarin Corporation plc, a corporation formed under the laws
of
England and Wales (the “
Company
”), and each purchaser identified on the
signature pages hereto (each, including its successors and assigns, a
“
Purchaser
” and collectively the “
Purchasers
”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
an effective registration statement under the Securities Act of 1933, as
amended
(the “
Securities Act
”), the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company, securities of the Company as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of
which
are hereby acknowledged, the Company and each Purchaser agree as
follows:
ARTICLE
1.
DEFINITIONS
Section
1.1.
Definitions
. In addition to the terms defined
elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:
“
ADSs
”
means American Depositary Shares, each representing one Ordinary Share of
the
Company, par value GBP 0.05 per share, and each evidenced by an American
Depositary Receipt, issued pursuant to the terms of the Deposit
Agreement.
“
Affiliate
”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
a
Person as such terms are used in and construed under Rule 405 under the
Securities Act. With respect to a Purchaser, any investment fund or
managed account that is managed on a discretionary basis by the same investment
manager as such Purchaser will be deemed to be an Affiliate of such
Purchaser.
“
Base
Prospectus
” means the prospectus in the form in which it appears in the
Registration Statement.
“
Board
of Directors
” means the board of directors of the Company.
“
Business
Day
” means any day except any Saturday, any Sunday, any day which is a
federal legal holiday in the United States or any day on which banking
institutions in
the
State
of New York are authorized or required by law or other governmental action
to
close.
“
Closing
”
means the closing of the purchase and sale of the Securities pursuant to
Section
2.1.
“
Closing
Date
” has the meaning set forth in Section 2.1(3).
“
Commission
”
means the Securities and Exchange Commission.
“
Common
Stock
” means the Ordinary Shares of the Company, par value GBP 0.05 per
share, and any other class of securities into which such securities may
hereafter be reclassified or changed into.
“
Common
Stock Equivalents
” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive,
Common
Stock.
“
Company
Counsel
” means Cahill Gordon & Reindel
LLP
, New York, NY,
and
Kirkpatrick & Lockhart Preston Gates Ellis LLP, London,
England.
“
Deposit
Agreement
” means the Company’s agreement with National City Nominees Limited
of Citigroup Centre, Canada Square, Canary Wharf, London, E14 5LB, being
the
nominee of Citibank, N.A., the Company’s depositary for its ADS program (the
“
ADS Depositary
”).
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
“
Exempt
Issuance
” means the issuance of (a) shares of Common Stock or options to
employees, officers or directors of the Company pursuant to any stock or
option
plan duly adopted for such purpose, by a majority of the non-employee members
of
the Board of Directors or a majority of the members of a committee of
non-employee directors established for such purpose, (b) securities upon
the
exercise or exchange of or conversion of any Securities issued hereunder
and/or
other securities exercisable or exchangeable for or convertible into shares
of
Common Stock issued and outstanding on the date of this Agreement, provided
that
such securities have not been amended since the date of this Agreement to
increase the number of such securities or to decrease the exercise, exchange
or
conversion price of such securities, (c) warrants to purchase 10,000 shares
of
Common Stock issued or to be issued to Dan Fischer and shares of Common Stock
upon exercise thereof, (d) shares of Common Stock in connection with the
acquisition by the Company of Ester Neurosciences Ltd., an Israeli company,
pursuant to the definitive agreement relating thereto, and payment of related
fees, (e) the convertible debt and equity financings concurrently being offered
by the Company as described in the Prospectus
Supplement,
and (f) securities issued pursuant to acquisitions or strategic transactions
approved by a majority of the disinterested directors of the Company, provided
that any such issuance shall only be to a Person which is, itself or through
its
subsidiaries, an operating company in a business synergistic with the business
of the Company and in which the Company receives benefits in addition to
the
investment of funds, but shall not include a transaction in which the Company
is
issuing securities primarily for the purpose of raising capital or to an
entity
whose primary business is investing in securities.
“
Material
Adverse Effect
” shall have the meaning set forth in Section
3.1(1).
“
Per
Unit Purchase Price
” equals $0.33.
“
Person
”
means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other
entity
of any kind.
“
Prospectus
”
means the final prospectus filed for the Registration Statement.
“
Prospectus
Supplement
” means the supplement to the Prospectus complying with Rule
424(b) of the Securities Act that is filed with the Commission and delivered
by
the Company to each Purchaser at the Closing.
“
Purchaser
Party
” shall have the meaning ascribed to such term in Section
4.8.
“
Registration
Statement
” means the effective registration statement with Commission file
No. 333-135718 which registers the sale of the Shares, the Warrants and the
Warrant Shares to the Purchasers.
“
Rule
144
” means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.
“
SEC
Reports
” means all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years
preceding the date hereof (or such shorter period as the Company was required
by
law to file such material).
“
Securities
”
means the Shares, the Warrants and the Warrant Shares.
“
Securities
Act
” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“
Shares
”
means the ADSs issued or issuable to each Purchaser pursuant to this
Agreement.
“
Short
Sales
” means all “short sales” as defined in Rule 200 of Regulation SHO
under the Exchange Act (but shall not be deemed to include the location and/or
reservation of borrowable shares of Common Stock).
“
Subscription
Amount
” means, as to each Purchaser, the aggregate amount to be paid for
Shares and Warrants purchased hereunder as specified below such Purchaser’s name
on the signature page of this Agreement and next to the heading “Subscription
Amount,” in United States dollars and in immediately available funds, and shall
equal the Per Unit Purchase Price times the number specified below such
Purchaser’s name on the signature page of this Agreement and next to the heading
“Shares.”
“
Subsidiary
”
means any subsidiary of the Company and shall, where applicable, include
any
subsidiary of the Company formed or acquired after the date hereof.
“
Time
of Sale Prospectus
” means the preliminary prospectus, if any, together with
the free writing prospectuses, if any, used in connection with the sale
contemplated by this Agreement, including any documents incorporated by
reference therein.
“
Trading
Day
” means a day on which the NASDAQ Capital Market is open for
trading.
“
Trading
Market
” means the following markets or exchanges on which the Common Stock
is listed or quoted for trading on the date in question: the American Stock
Exchange, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ
Global
Select Market, the New York Stock Exchange or the OTC Bulletin
Board.
“
Transaction
Documents
” means this Agreement, the Warrants and any other documents or
agreements executed in connection with the purchase and sale of the Securities
to the Purchasers hereunder.
“
Warrants
”
means, collectively, the Share purchase warrants delivered to the Purchasers
at
the Closing in accordance with Section 2.2(a) hereof, which Warrants shall
be
exercisable immediately and have a term of exercise equal to 5 years, in
the
form of
Exhibit A
attached hereto.
“
Warrant
Shares
” means the Shares issuable upon exercise of the
Warrants.
ARTICLE
2.
PURCHASE
AND SALE
Section
2.1.
Purchase and Sale; Procedures
. At the Closing, upon
the terms and subject to the conditions set forth herein, the Company agrees
to
sell, and the Purchasers, severally and not jointly, agree to purchase, up
to an
aggregate of $4,376,000 of Shares and Warrants. The purchase and sale
of the Securities to each Purchaser hereunder is expressly conditioned on
(a)
the public announcement by the Company that it has entered into a definitive
agreement for the acquisition by the Company of Ester Neurosciences Ltd.,
an
Israeli company, and that it in-
tends
to
call an extraordinary general meeting of shareholders to effect a reverse
stock
split for the purpose of bringing the Company into compliance with the
continuing listing requirements of the Nasdaq Capital Market (the
“
Announcement
”), and (b) such Purchaser’s satisfactory review of the
Prospectus Supplement. Prior to the satisfaction of each of such
conditions, this Agreement shall only constitute an indication of interest
by
the purchaser in the offered securities. The process for funding and
delivery of the Securities to each Purchaser shall be as follows:
(1) no
later than 4:00 PM Eastern Standard Time in the United States (“
EST
”) on
the date of this Agreement, the Purchaser shall deliver executed signature
pages
hereto, and the Company shall deliver legal opinions of Company Counsel,
substantially in the forms of
Exhibits B
and
C
attached hereto, in
each case to a mutually-agreed third party to be held pending release of
funds;
(2) prior
to the end of the calendar day on the date of this Agreement, the Company
shall
provide to each Purchaser a copy of the Prospectus Supplement;
(3) the
Company plans to make the Announcement prior to 7:30 AM EST on the business
day
following the date of this Agreement, whereupon the condition in clause (a)
above shall be satisfied;
(4) on
the business day following the date of this Agreement (assuming the condition
in
clause (a) above is satisfied as provided in the preceding clause (3)), (A)
at
7:30 AM EST, the condition in clause (b) above shall be satisfied, unless
prior
to that time the Company receives notice in writing from the Purchaser that
the
Purchaser is not satisfied with the Prospectus Supplement
, such notice
to be faxed to: 011 3531 6699 028, Attention: Tom Maher or e-mailed to:
tom.maher@amarincorp.com
; (B) simultaneously with the satisfaction of
the condition in clause (b) above as provided in the preceding clause (A),
the
signature pages and legal opinion referred to in clause (1) shall be released
to
the parties, and (C) no later than 5:00 PM EST, the Purchaser shall deliver
immediately available funds equal to its Subscription Amount by wire transfer
to
the following account:
Account
Name:
|
Amarin
Corporation plc
|
Account
No:
|
11427458
|
Sort
Code:
|
30
- 93 - 05
|
Swift
Code:
|
LOYDGB21265
|
IBAN
No:
|
GB82
LOYD 3093 0511 4274 58
|
(the
date
on which these events occur, the “
Closing Date
”); and
(5) on
the business day following the Closing Date (the “
Securities Delivery
Date
”), subject, as to each Purchaser, to receipt of such Purchaser’s
Subscription Amount by the Company, the Company shall commence issuing the
Securities by (a) causing the
CREST
account of the nominee of the ADS Depositary to be credited with the Shares
issued and sold hereunder, (b) instructing the ADS Depositary to issue American
Depositary Receipts evidencing ADSs in the amount to be registered to a
nominated Depository Trust Company (“
DTC
”) account designated by the
Purchaser in writing, and (c) issuing to the Purchaser a Warrant registered
in
the name of such Purchaser to purchase up to a number of shares of Common
Stock
equal to 50% of such Purchaser’s Subscription Amount divided by 0.33, with an
exercise price equal to $0.48, subject to adjustment as provided therein
(such
Warrant certificate may be delivered within three Trading Days of the Closing
Date).
Section
2.2.
Closing
. The Closing shall occur at the offices of
Cahill Gordon & Reindel LLP at 80 Pine Street, NY, NY 10005 or such
other location as the parties shall mutually agree.
Section
2.3.
Closing Conditions
.
(1) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(a) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Purchasers contained herein;
(b) all
obligations, covenants and agreements of each Purchaser required to be performed
at or prior to the Closing Date shall have been performed; and
(c) the
delivery by each Purchaser of the items to be delivered by it as set forth
in
Section 2.1 of this Agreement, excluding the delivery of the Shares, which
occurs on the Securities Delivery Date.
(2) The
respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(a) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Company contained herein;
(b) all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed;
(c) the
delivery by the Company of the items to be delivered by it as set forth in
Section 2.1 of this Agreement;
(d) there
shall have been no Material Adverse Effect with respect to the Company since
the
date hereof; and
(e) from
the date hereof to the Closing Date, trading in the Common Stock shall not
have
been suspended by the Commission or the Company’s principal Trading Market
(except for any suspension of trading of limited duration agreed to by the
Com-
pany,
which suspension shall be terminated prior to the Closing), and, at any time
prior to the Closing Date, trading in securities generally as reported by
Bloomberg L.P. shall not have been suspended or limited, or minimum prices
shall
not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been
declared either by the United States or New York State authorities nor shall
there have occurred any material outbreak or escalation of hostilities or
other
national or international calamity of such magnitude in its effect on, or
any
material adverse change in, any financial market which, in each case, in
the
reasonable judgment of each Purchaser, makes it impracticable or inadvisable
to
purchase the Securities at the Closing.
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES
Section
3.1.
Representations and Warranties of the Company
. The
Company makes the following representations and warranties to each of the
Purchasers:
(a)
Organization
and Qualification
. All of the direct and indirect subsidiaries
(individually, a “Subsidiary”) of the Company are set forth on in the Company’s
annual report on Form 20-F for the fiscal year ended December 31,
2006. The Company owns, directly or indirectly, all of the capital
stock or other equity interests of each Subsidiary free and clear of any
“Liens”
(which for purposes of this Agreement shall mean a lien, charge, security
interest, encumbrance, right of first refusal, preemptive right or similar
restriction), and all the issued and outstanding shares of capital stock
of each
Subsidiary are validly issued and are fully paid, non-assessable and free
of
preemptive and similar rights to subscribe for or purchase
securities. The Company is duly incorporated and validly existing
under the laws of England and Wales, with the requisite power and authority
to
own and use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or
default of any of the provisions of its respective certificate or articles
of
incorporation, bylaws or other organizational or charter
documents. The Company is duly qualified to conduct business as a
foreign corporation in each United States jurisdiction in which the nature
of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing,
as
the case may be, could not reasonably be expected to have (i) a material
adverse
effect on the legality, validity or enforceability of any Transaction Document,
(ii) a material adverse effect on the results of operations, assets, business,
or financial condition of the Company and the Subsidiaries, taken as a whole,
or
(iii) a material adverse effect on the Company’s ability to perform in any
material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no
“Proceeding” (which for purposes of this Agreement shall mean any action, claim,
suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced
or
threatened) has been instituted in any such jurisdiction revoking, limiting
or
curtailing or seeking to revoke, limit or curtail such power and authority
or
qualification. Each Subsidiary is duly incorporated or otherwise
organized and validly existing
under
the
laws of the jurisdiction of its incorporation or organization (as applicable),
with the requisite power and authority to own and use its properties and
assets
and to carry on its business as currently conducted. Each Subsidiary
is duly qualified to conduct business as a foreign corporation or other entity
in each United States jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where
the
failure to be so qualified or in good standing, as the case may be, could
not
reasonably be expected to have a Material Adverse Effect.
(b)
Authorization;
Enforcement
. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by
each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated thereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the
Company, its board of directors or its stockholders in connection therewith
other than in connection with the “Required Approvals” (as defined in subsection
3.1(d) below). Each Transaction Document has been (or upon delivery
will have been) duly executed by the Company and, when delivered in accordance
with the terms hereof and thereof, will constitute the valid and binding
obligation of the Company; each Transaction Document shall be enforceable
against the Company in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of
general application affecting enforcement of creditors’ rights generally (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) rights to indemnity and
contribution may be limited by applicable law or public policy.
(c)
No
Conflicts
. The execution, delivery and performance of the
Transaction Documents by the Company, the issuance and sale of the Securities
and the consummation by the Company of the other transactions contemplated
hereby and thereby do not and will not (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse
of
time or both would become a default) under, result in the creation of any
Lien
upon any of the properties or assets of the Company or any Subsidiary, or
give
to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a Company or Subsidiary debt
or
otherwise) or, to our knowledge, other understanding to which the Company
or any
Subsidiary is a party or by which any property or asset of the Company or
any
Subsidiary is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal
and
state securities laws and regulations), or by which any property or asset
of the
Company or a Subsidiary is bound or affected; except in the case of each
of
clauses (ii) and (iii), such as could not reasonably be expected to
result in a Material Adverse Effect.
(d)
Filings,
Consents and Approvals
. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or
other
governmental authority or other “Person” (defined as an individual or
corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government
(or an
agency or subdivision thereof) or any Trading Market (as defined in subsection
3.1(e) below)) in connection with the execution, delivery and performance
by the
Company of the Transaction Documents, other than such filings as are required
to
be made under applicable securities laws of England and Wales, the
Republic of Ireland and U.S. Federal and state securities laws, the listing
of
the ADS on the Nasdaq Capital Market and the Common Stock on the AIM Market
of
the London Stock Exchange and the IEX Market of the Irish Stock Exchange
and any
notification filing related thereto, or under the rules and regulations of
the
Financial Industry Regulatory Authority (“
FINRA
”) (collectively, the
“
Required Approvals
”).
(e)
Issuance
of the Securities; Registration
. The Securities when issued and
paid for in accordance with the applicable Transaction Documents, will be
duly
authorized and validly issued, fully paid and nonassessable, free and clear
of
all Liens imposed by the Company other than restrictions on transfer provided
for in the Transaction Documents. The Company will reserve from its
duly authorized capital stock the maximum number of shares of Common Stock
issuable pursuant to the Transaction Documents. The issuance by the
Company of the Securities has been registered under the Securities Act and
all
of the Securities are freely transferable and tradable by the Purchasers
without
restriction (other than any restrictions arising solely from an act or omission
of a Purchaser). The Securities are being issued pursuant to the
Registration Statement and the issuance of the Securities has been registered
by
the Company under the Securities Act. The Registration Statement is
effective and available for the issuance of the Securities thereunder and
the
Company has not received any notice that the Commission has issued or intends
to
issue a stop-order with respect to the Registration Statement or that the
Commission otherwise has suspended or withdrawn the effectiveness of the
Registration Statement, either temporarily or permanently, or intends or
has
threatened in writing to do so. The “Plan of Distribution” section
under the Registration Statement permits the issuance and sale of the Securities
hereunder. Upon receipt of the Securities, the Purchasers will have
good title to such Securities and the Shares will be listed on the “
Trading
Market
” (which, for purposes of this Agreement shall mean the Nasdaq Capital
Market).
(f)
Capitalization
. The
capitalization of the Company is as set forth in the Prospectus
Supplement. The Company has not issued any capital stock since its
most recently filed report under the Exchange Act, other than pursuant to
the
exercise of employee stock options under the Company’s stock option plans, the
issuance of shares of Common Stock to employees pursuant to the Company’s
employee stock purchase plan and pursuant to the conversion or exercise of
securities exercisable, exchangeable or convertible into Common Stock
(“
Common Stock Equivalents
”), other than in connection with the
acquisition of Ester Neurosciences Limited (the “
Ester Acquisition
”), an
Israeli company, and any related fees, pursuant to the Stock Purchase Agreement
dated Decem-
ber
5,
2007 among the Company and the other parties named therein. Except as
disclosed the SEC Reports, the Registration Statement, the Base Prospectus,
the
Prospectus Supplement or any Time of Sale Prospectus, no Person has any right
of
first refusal, preemptive right, right of participation, or any similar right
to
participate in the transactions contemplated by the Transaction
Documents. Except as a result of the purchase and sale of the
Securities or as described above or in the SEC Reports, the Registration
Statement, the Base Prospectus, the Prospectus Supplement or any Time of
Sale
Prospectus, and except the Neurostat Pharmaceuticals Inc. and Strategic
Pharmaceutical Solutions Warrants, there are no outstanding options, warrants,
script rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or giving any Person any right to subscribe
for
or acquire, any shares of Common Stock, or contracts, commitments, or agreements
by which the Company or any Subsidiary is or may become bound to issue
additional shares of Common Stock or Common Stock Equivalents. The
issuance and sale of the Securities will not result in a right of any holder
of
Company securities to adjust the exercise, conversion, exchange or reset
price
under such securities. All of the outstanding shares of capital stock of
the
Company are validly issued, fully paid and nonassessable, have been issued
in
compliance with all applicable securities laws, and none of such outstanding
shares was issued in violation of any preemptive rights or similar rights
to
subscribe for or purchase securities. There are no stockholders
agreements, voting agreements or other similar agreements with respect to
the
Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders.
(g)
SEC
Reports; Financial Statements
. The Company has complied in all
material respects with requirements to file all reports, schedules, forms,
statements and other documents required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “
SEC Reports
”) on a timely
basis or has received a valid extension of such time of filing and has filed
any
such SEC Reports prior to the expiration of any such extension. As of
their respective dates, the SEC Reports complied in all material respects
with
the requirements of the Securities Act and the Exchange Act and the rules
and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The financial statements of the
Company included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles (“
GAAP
”)
applied on a consistent basis during the periods involved (the financial
statements are prepared under U.K. GAAP and reconciled to U.S. GAAP), except
as
may be otherwise specified in such financial statements or the notes thereto
and
except that unaudited financial statements may not be rec-
onciled
to U.S. GAAP or contain all footnotes required by GAAP, and fairly present
in
all material respects the financial position of the Company and its consolidated
subsidiaries as of and for the dates thereof and the results of operations
and
cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
(h)
Material
Changes; Undisclosed Events, Liabilities or Developments
. Since
the date of the latest audited financial statements included within the SEC
Reports, except as specifically disclosed in the SEC Reports, (i) there has
been
no event, occurrence or development that has had or that could reasonably
be
expected to result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent
with
past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or required to be disclosed in filings
made with the Commission, (iii) the Company has not altered its method of
accounting, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock and (v) the Company has not issued any equity securities to any officer,
director or “Affiliate” (defined as any Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with a Person, as such terms are used in and construed under
Rule
144 under the Securities Act), except pursuant to existing Company stock
option
plans and other than financing by the Company for cash with third parties
in
which such officers, directors or Affiliates may have participated on terms
no
more favorable to those given to such third parties. Except for the
issuance of the Securities contemplated by this Agreement, no event, liability
or development has occurred or exists with respect to the Company or its
Subsidiaries or their respective business, properties, operations or financial
condition, that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made that has
not
been publicly disclosed at least 1 Trading Day prior to the date that this
representation is made.
(i)
Litigation
. Except
as disclosed in the SEC Reports, the Registration Statement, the Base
Prospectus, the Prospectus Supplement or any Time of Sale Prospectus, there
is
no action, suit, inquiry, notice of violation, Proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting
the
Company, any Subsidiary or any of their respective properties before or by
any
court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “
Action
”)
which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Securities or (ii)
could, if there were an unfavorable decision, reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor any Subsidiary,
nor any director or officer thereof, is or has been the subject of any Action
involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. Except as disclosed in
the SEC Reports, the Registration Statement, the Base Prospectus, the Prospectus
Supplement or any Time of Sale Prospectus, there has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
investigation by
the
Commission involving the Company or any current or former director or officer
of
the Company regarding the business, operations, activities or securities
of the
Company. The Commission has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by the Company
or any Subsidiary under the Exchange Act or the Securities Act. The
Company and its Subsidiaries are in compliance with all U.S. federal, state,
local and foreign laws and regulations relating to employment and employment
practices, terms and conditions of employment and wages and hours, except
where
the failure to be in compliance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(j)
Labor
Relations
. Except as disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or
any
Time of Sale Prospectus, no material labor dispute exists or, to the knowledge
of the Company, is imminent with respect to any of the employees of the Company
which could reasonably be expected to have a Material Adverse
Effect.
(k)
Compliance
. Neither
the Company nor any Subsidiary (i) is in default under or in violation of
(and
no event has occurred that has not been waived that, with notice or lapse
of
time or both, would result in a default by the Company or any Subsidiary
under),
nor has the Company or any Subsidiary received notice of a claim that it
is in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or
by
which it or any of its properties is bound, (ii) is in violation of any order
of
any court, arbitrator or governmental body, or (iii) is or has been in violation
of any statute, rule or regulation of any governmental authority, including
without limitation all foreign, federal, state and local laws applicable
to its
business and all such laws that affect the environment, except in each case
as
could reasonably be expected to not have a Material Adverse Effect.
(l)
Regulatory
Permits
. Except as disclosed in the SEC Reports, the Registration
Statement, the Base Prospectus, the Prospectus Supplement or any Time of
Sale
Prospectus, the Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state, local
or
foreign regulatory authorities necessary to conduct their respective businesses
as described in the SEC Reports (“
Material Permits
”), except where the
failure to possess such permits could not reasonably be expected to have
in a
Material Adverse Effect, and neither the Company nor any Subsidiary has received
any notice of proceedings relating to the revocation or modification of any
Material Permit which revocation or modification could reasonably be expected
to
have a Material Adverse Effect.
(m)
Title
to Assets
. The Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them that is
material to the business of the Company and the Subsidiaries and good and
marketable title in all personal property owned by them that is material
to the
business of the Company and the Subsidiaries, in each case free and clear
of all
Liens, except for Liens as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made
of
such property by the Company and the Subsidiaries and Liens for the
pay-
ment
of
federal, state or other taxes, the payment of which is neither delinquent
nor
subject to penalties. Any real property and facilities held under
lease by the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases of which the Company and the Subsidiaries
are
in compliance, except where such invalidity, failure to subsist,
unenforceability or non-compliance would be deemed immaterial.
(n)
Patents
and Trademarks
. Except as disclosed in the SEC Reports, the
Registration Statement, the Base Prospectus, the Prospectus Supplement or
any
Time of Sale Prospectus or as could not reasonably be expected to have a
Material Adverse Effect, (A) the Company and the Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other similar intellectual property rights necessary or material
for use in connection with their respective businesses as described in the
SEC
Reports (collectively, the “
Intellectual Property Rights
”); (B) neither
the Company nor any Subsidiary has received a written notice that the
Intellectual Property Rights used by the Company or any Subsidiary violates
or
infringes upon the rights of any Person; (C) to the knowledge of the Company,
all such Intellectual Property Rights are valid and there is no existing
infringement by another Person of any of the Intellectual Property Rights;
and
(D) the Company and its Subsidiaries have taken reasonable security measures
to
protect the secrecy, confidentiality and value of all of their intellectual
properties.
(o)
Insurance
. The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries
are
engaged, including, but not limited to, directors and officers insurance
coverage at least equal to the aggregate subscription amount under the
Transaction Documents. To the knowledge of the Company, such
insurance contracts and policies are accurate and complete. Neither
the Company nor any Subsidiary has any reason to believe that it will not
be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost.
(p)
Transactions
With Affiliates and Employees
. Except as set forth in the SEC
Reports, none of the officers or directors of the Company and, to the knowledge
of the Company, none of the employees of the Company is presently a party
to any
transaction with the Company or any Subsidiary (other than for services as
employees, officers and directors), including any contract, agreement or
other
arrangement providing for the furnishing of services to or by, providing
for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of
the
Company, any entity in which any officer, director, or any such employee
has a
substantial interest or is an officer, director, trustee or partner, other
than
(i) for payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company and (iii) for other
employee benefits, including stock option agreements under any stock option
plan
of the Company.
(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
transactions contemplated herein.
(r)
Certain
Fees
. Except for fees payable to Rodman & Renshaw, 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, 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, or (iii) paid or agreed to
pay
to any person any compensation for soliciting another to purchase any other
securities of the Company.
(cc)
Approvals
. The
issuance and listing on the NASDAQ Capital Market of the Shares requires
no
further approvals, including but not limited to, the approval of
shareholders.
(dd)
FINRA
Affiliations
. There are no affiliations with any Financial
Industry Regulatory Authority (“
FINRA
”) member firm among the Company’s
officers, directors or, to the knowledge of the Company, any five percent
(5%)
or greater stockholder of the Company.
(ee)
Acknowledgment
Regarding Purchasers’ Purchase of Securities
. The Company
acknowledges and agrees that each of the Purchasers is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated thereby. The Company further
acknowledges that no Purchaser is acting as a financial advisor or fiduciary
of
the Company (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated thereby and any advice given
by any
Purchaser or any of their respective representatives
or
agents
in connection with the Transaction Documents and the transactions contemplated
thereby is merely incidental to the Purchasers’ purchase of the
Securities. The Company further represents to each Purchaser that the
Company’s decision to enter into this Agreement and the other Transaction
Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its
representatives.
(ff)
Acknowledgement
Regarding Purchaser’s Trading Activity
. Anything in this
Agreement or elsewhere herein to the contrary notwithstanding (except for
Sections 3.2(e) and 4.13 hereof), it is understood and acknowledged by the
Company (i) that none of the Purchasers have been asked by the Company to
agree,
nor has any Purchaser agreed, to desist from purchasing or selling, long
and/or
short, securities of the Company, or “derivative” securities based on securities
issued by the Company or to hold the Securities for any specified term; (ii)
that past or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement
transactions, may negatively impact the market price of the Company’s
publicly-traded securities; (iii) that any Purchaser, and counter-parties
in
“derivative” transactions to which any such Purchaser is a party, directly or
indirectly, presently may have a “short” position in the Common Stock, (iv) that
each Purchaser shall not be deemed to have any affiliation with or control
over
any arm’s length counter-party in any “derivative” transaction, (v) that one or
more Purchasers may engage in hedging activities at various times during
the
period that the Securities are outstanding, including, without limitation,
during the periods that the value of the Warrant Shares deliverable with
respect
to Securities are being determined, (vi) that such hedging activities (if
any)
could reduce the value of the existing stockholders' equity interests in
the
Company at and after the time that the hedging activities are being conducted,
and (vii) that such aforementioned hedging activities do not constitute a
breach
of any of the Transaction Documents.
Section
3.2.
Representations and Warranties of the
Purchasers
. Each Purchaser, for itself and for no other
Purchaser, hereby represents and warrants as of the date hereof and as of
the
Closing Date to the Company as follows:
(a)
Organization;
Authority
. Such Purchaser is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate or partnership power and authority
to
enter into and to consummate the transactions contemplated by this Agreement
and
otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of this Agreement and performance by such Purchaser of the
transactions contemplated by this Agreement have been duly authorized by
all
necessary corporate or similar action on the part of such
Purchaser. Each Transaction Document to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii)
as
limited
by laws relating to the availability of specific performance, injunctive
relief
or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b)
Own
Account
. Such Purchaser is acquiring the Securities as principal
for its own account and not with a view to or for distributing or reselling
such
Securities or any part thereof in violation of the Securities Act or any
applicable state securities law, has no present intention of distributing
any of
such Securities in violation of the Securities Act or any applicable state
securities law and has no direct or indirect arrangement or understandings
with
any other persons to distribute or regarding the distribution of such Securities
(this representation and warranty not limiting such Purchaser’s right to sell
the Securities immediately pursuant to the Registration Statement or otherwise
in compliance with applicable federal and state securities laws) in violation
of
the Securities Act or any applicable state securities law. Such
Purchaser is acquiring the Securities hereunder in the ordinary course of
its
business.
(c)
Purchaser
Status
. At the time such Purchaser was offered the Securities, it
was, and at the date hereof it is, and on each date on which it exercises
any
Warrants, it will be either: (i) an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii)
a
“qualified institutional buyer” as defined in Rule 144A(a) under the Securities
Act. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(d)
Experience
of Such Purchaser
. Such Purchaser, either alone or together with
its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits
and
risks of the prospective investment in the Securities, and has so evaluated
the
merits and risks of such investment. Such Purchaser is able to bear
the economic risk of an investment in the Securities and, at the present
time,
is able to afford a complete loss of such investment.
(e)
Short
Sales and Confidentiality Prior to the Date Hereof
. Other than
consummating the transactions contemplated hereunder, such Purchaser has
not,
nor has any Person acting on behalf of or pursuant to any understanding with
such Purchaser, directly or indirectly executed any purchases or sales,
including Short Sales, of the securities of the Company during the period
commencing from the time that such Purchaser first received a term sheet
(written or oral) from the Company or any other Person representing the Company
setting forth the material terms of the transactions contemplated hereunder
(“
Discussion Time
”). Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser's assets and
the
portfolio managers have no direct knowledge of the investment decisions made
by
the portfolio managers managing other portions of such Purchaser's assets,
the
representation set forth above shall only apply with respect to the portion
of
assets managed by the portfolio manager that made the investment decision
to
purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement, such Purchaser has maintained the
confidentiality
of
all
disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).
ARTICLE
4.
OTHER
AGREEMENTS OF THE PARTIES
Section
4.1.
Warrant Shares
. If all or any portion of a Warrant
is exercised at a time when there is an effective registration statement
to
cover the issuance or resale of the Warrant Shares, the Warrant Shares issued
pursuant to any such exercise shall be issued free of all legends. If
at any time following the date hereof the Registration Statement (or any
subsequent registration statement registering the Warrant Shares) is not
effective or is not otherwise available for the sale or resale of the Warrant
Shares, the Company shall immediately notify the holders of the Warrants
in
writing that such registration statement is not then effective and thereafter
shall promptly notify such holders when the registration statement is effective
again and available for the sale or resale of the Warrant Shares. The
Company shall use best efforts to keep a registration statement (including
the
Registration Statement) registering the issuance or resale of the Warrant
Shares
effective during the term of the Warrants.
Section
4.2.
Furnishing of Information
. Until the earliest of
the time that (i) no Purchaser owns Securities (based solely on a review
of the
transfer agent’s list of registered holders of Common Stock, a list of
non-objecting beneficial holders and the Company’s registry for the Warrants) or
(ii) the Warrants have expired, the Company covenants to timely file (or
obtain
extensions in respect thereof and file within the applicable grace period)
all
reports required to be filed by the Company after the date hereof pursuant
to
the Exchange Act even if the Company is not then subject to the reporting
requirements of the Exchange Act. As long as any Purchaser owns
Securities, if the Company is not required to file reports pursuant to the
Exchange Act, it will prepare and furnish to the Purchasers and make publicly
available in accordance with Rule 144(c) such information as is required
for the
Purchasers to sell the Securities under Rule 144. The Company further
covenants that, if at any time following the date hereof the Registration
Statement (or any subsequent registration statement registering the Warrant
Shares) is not effective or is not otherwise available for the sale or resale
of
the Warrant Shares, it will take such further action as any Purchaser may
reasonably request, to the extent required from time to time, to enable such
Purchaser to sell such Warrant Shares without registration under the Securities
Act within the requirements of the exemption provided by Rule 144.
Section
4.3.
Integration
. The Company shall not sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in Section 2 of the Securities Act) that would be integrated
with
the offer or sale of the Securities for purposes of the rules and regulations
of
any Trading Market such that it would require shareholder approval prior
to the
closing of such other transaction unless shareholder approval is obtained
before
the closing of such subsequent transaction.
Section
4.4.
Securities Laws Disclosure; Publicity
. The Company
shall, by 8:30 a.m. (New York City time) on the Trading Day immediately
following the Closing Date, issue a Current Report on Form 6-K, disclosing
the
material terms of the purchase and sale of the
Securities
pursuant to this Agreement, and filing the Transaction Documents as exhibits
thereto. Notwithstanding the foregoing, the Company shall not
publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any filing with the Commission or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (i) as
required by federal securities law in connection with the filing of final
Transaction Documents (including signature pages thereto) with the Commission
and (ii) to the extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Purchasers with
prior
notice of such disclosure permitted under this clause (ii).
Section
4.5.
Shareholder Rights Plan
. No claim will be made or
enforced by the Company or, with the consent of the Company, any other Person,
that any Purchaser is an “Acquiring Person” under any control share acquisition,
business combination, poison pill (including any distribution under a rights
agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Purchaser could be deemed to trigger
the
provisions of any such plan or arrangement, by virtue of receiving Securities
under the Transaction Documents or under any other agreement between the
Company
and the Purchasers.
Section
4.6.
Non-Public Information
. Except with respect to the
material terms and conditions of the transactions contemplated by the
Transaction Documents, the Company covenants and agrees that neither it nor
any
other Person acting on its behalf will provide any Purchaser or its agents
or
counsel with any information that the Company believes constitutes material
non-public information, unless prior thereto such Purchaser shall have executed
a written agreement regarding the confidentiality and use of such
information. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in
securities of the Company.
Section
4.7.
Use of Proceeds
. Except as set forth on Schedule
4.7 attached hereto, the Company shall use the net proceeds from the sale
of the
Securities hereunder for working capital purposes and shall not use such
proceeds for (a) the satisfaction of any portion of the Company’s debt (other
than payment of trade payables in the ordinary course of the Company’s business
and prior practices), (b) the redemption of any Common Stock or Common Stock
Equivalents or (c) the settlement of any outstanding litigation.
Section
4.8.
Indemnification of Purchasers
. Subject to the
provisions of this Section 4.8, to the extent permitted by law, the Company
will
indemnify and hold each Purchaser and its directors, officers, shareholders,
members, partners, agents and employees (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding
a
lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of
the
Exchange Act), and the directors, officers, shareholders, members, partners,
agents or employees (and any other Persons with a functionally equivalent
role
of a Person holding such titles notwithstanding a lack of such title or any
other title)or employees of such controlling persons (each, a “
Purchaser
Party
”) harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs and reasonable attorneys’ fees and costs of
investigation that any such Purchaser Party may suffer or incur as a result
of
or relating to (a) any breach of any of the representations, warranties,
covenants or agreements made by the Com-
pany
in
this Agreement or in the other Transaction Documents or (b) any action
instituted against a Purchaser in any capacity, or any of them or their
respective Affiliates, by any stockholder of the Company who is not an Affiliate
of such Purchaser, with respect to any of the transactions contemplated by
the
Transaction Documents (unless such action is based upon a breach of such
Purchaser’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser may have with
any
such stockholder or any violations by the Purchaser of state or federal
securities laws or any conduct by such Purchaser which constitutes fraud,
gross
negligence, willful misconduct or malfeasance). If any action shall
be brought against any Purchaser Party in respect of which indemnity may
be
sought pursuant to this Agreement, such Purchaser Party shall promptly notify
the Company in writing, and the Company shall have the right to assume the
defense thereof with counsel of its own choosing reasonably acceptable to
the
Purchaser Party. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but
the fees and expenses of such counsel shall be at the expense of such Purchaser
Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or
(iii)
in such action there is, in the reasonable opinion of such separate counsel,
a
material conflict on any material issue between the position of the Company
and
the position of such Purchaser Party, in which case the Company shall be
responsible for the reasonable fees and expenses of no more than one such
separate counsel. The Company will not be liable to any Purchaser
Party under this Agreement (i) for any settlement by a Purchaser Party effected
without the Company’s prior written consent, which shall not be unreasonably
withheld or delayed; or (ii) to the extent, but only to the extent that a
loss,
claim, damage or liability is attributable to any Purchaser Party’s breach of
any of the representations, warranties, covenants or agreements made by such
Purchaser Party in this Agreement or in the other Transaction
Documents.
Section
4.9.
Reservation of Common Stock
. As of the date hereof,
the Company has reserved and the Company shall continue to reserve and keep
available at all times, free of preemptive rights, a sufficient number of
shares
of Common Stock for the purpose of enabling the Company to issue Shares pursuant
to this Agreement and Warrant Shares pursuant to any exercise of the
Warrants.
Section
4.10.
Listing of Common Stock
. The Company hereby agrees
to use all commercially reasonable efforts to maintain the listing of the
Common
Stock on a Trading Market, and as soon as reasonably practicable following
the
Closing to list all of the Shares and Warrant Shares on such Trading
Market. The Company further agrees, if the Company applies to have
the Common Stock traded on any other Trading Market, it will include in such
application all of the Shares and Warrant Shares, and will take such other
action as is necessary to cause all of the Shares and Warrant Shares to be
listed on such other Trading Market as promptly as possible. The
Company will use all commercially reasonable efforts to continue the listing
and
trading of its Common Stock on a Trading Market.
Section
4.11.
Equal Treatment of Purchasers
. No consideration
shall be offered or paid to any Person to amend or consent to a waiver or
modification of any provision of any of the Transaction Documents unless
the
same consideration is also offered to all of the parties to the Transaction
Documents. For clarification purposes, this provision constitutes a
separate right
granted
to each Purchaser by the Company and negotiated separately by each Purchaser,
and is intended for the Company to treat the Purchasers as a class and shall
not
in any way be construed as the Purchasers acting in concert or as a group
with
respect to the purchase, disposition or voting of Securities or
otherwise.
Section
4.12.
Subsequent Equity Sales
.
(1) From
the date hereof until 45 days after the Closing Date, neither the Company
nor
any Subsidiary shall issue shares of Common Stock or Common Stock Equivalents;
provided
,
however
, the 45 day period set forth in this Section
4.12 shall be extended for the number of Trading Days during such period
in
which (i) trading in the Common Stock is suspended by any Trading Market,
or
(ii) the Registration Statement is not effective or the prospectus included
in
the Registration Statement may not be used by the Purchasers for the resale
of
the Shares and Warrant Shares.
(2) From
the date hereof until such time as no Purchaser holds any of the Securities
(based solely on a review of the transfer agent’s list of registered holders of
Common Stock, a list of non-objecting beneficial holders and the Company’s
registry for the Warrants), the Company shall be prohibited from effecting
or
entering into an agreement to effect any Subsequent Financing involving a
Variable Rate Transaction. “
Variable Rate Transaction
” means a
transaction in which the Company issues or sells any debt or equity securities
that are convertible into, exchangeable or exercisable for, or include the
right
to receive additional shares of Common Stock at a conversion, exercise or
exchange rate or other price that is based upon and/or varies with the trading
prices of or quotations for the shares of Common Stock at any time after
the
initial issuance of such debt or equity securities. The Purchasers
shall be entitled to obtain injunctive relief against the Company to preclude
any such issuance, which remedy shall be in addition to any right to collect
damages.
(3) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt
Issuance, except that no Variable Rate Transaction shall be an Exempt
Issuance.
Section
4.13.
Short Sales and Confidentiality After the Date
Hereof
. Each Purchaser, severally and not jointly with the other
Purchasers, covenants that neither it nor any Affiliate acting on its behalf
or
pursuant to any understanding with it will execute any Short Sales during
the
period commencing at the Discussion Time and ending at the time that the
conditions in Sections 2.1(a) and 2.1(b) are deemed satisfied as provided
in
Sections 2.1(3) and 2.1(4) (the “
Time of Satisfaction
”). Each
Purchaser, severally and not jointly with the other Purchasers, covenants
that
until such Time of Satisfaction, such Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the
information included in the Disclosure Schedules. Notwithstanding the
foregoing, no Purchaser makes any representation, warranty or covenant hereby
that it will not engage in Short Sales in the securities of the Company after
the Time of Satisfaction. Notwithstanding the foregoing, in the case of a
Purchaser that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets and the portfolio
managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s assets, the
covenant set forth above shall only apply with respect to the portion of
assets
managed by the
portfolio
manager that made the investment decision to purchase the Securities covered
by
this Agreement.
Section
4.14.
Delivery of Securities After Closing
. The Company
shall deliver, or cause to be delivered, the respective Securities purchased
by
each Purchaser to such Purchaser within 3 Trading Days of the Closing
Date.
ARTICLE
5.
MISCELLANEOUS
Section
5.1.
Termination
. This Agreement may be terminated by
any Purchaser, as to such Purchaser’s obligations hereunder only and without any
effect whatsoever on the obligations between the Company and the other
Purchasers, by written notice to the other parties, if the Closing has not
been
consummated on or before December 15, 2007;
provided
,
however
,
that no such termination will affect the right of any party to sue for any
breach by the other party (or parties).
Section
5.2.
Fees and Expenses
. Except as expressly set forth in
the Transaction Documents to the contrary, each party shall pay the fees
and
expenses of its advisers, counsel, accountants and other experts, if any,
and
all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this
Agreement. The Per Unit Purchase Price includes costs of issuance,
such as all Transfer Agent fees, stamp taxes and other taxes and duties levied
in connection with the delivery of any Securities to the
Purchasers.
Section
5.3.
Entire Agreement
. The Transaction Documents,
together with the exhibits and schedules thereto, the Prospectus and the
Prospectus Supplement, contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the
parties
acknowledge have been merged into such documents, exhibits and
schedules.
Section
5.4.
Notices
. Any and all notices or other
communications or deliveries required or permitted to be provided hereunder
shall be in writing and shall be deemed given and effective on the earliest
of
(a) the date of transmission, if such notice or communication is delivered
via
facsimile at the facsimile number set forth on the signature pages attached
hereto prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the
next
Trading Day after the date of transmission, if such notice or communication
is
delivered via facsimile at the facsimile number set forth on the signature
pages
attached hereto on a day that is not a Trading Day or later than 5:30 p.m.
(New
York City time) on any Trading Day, (c) the 2
nd
Trading
Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice
is
required to be given. The address for such notices and communications
shall be as set forth on the signature pages attached hereto.
Section
5.5.
Amendments; Waivers
. No provision of this Agreement
may be waived or amended except in a written instrument signed, in the case
of
an amendment, by the Company and the Purchasers of at least 85% of the Shares
still held by the Purchasers or, in the
case
of a
waiver, by the party against whom enforcement of any such waived provision
is
sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of
any
other provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair
the
exercise of any such right.
Section
5.6.
Headings
. The headings herein are for convenience
only, do not constitute a part of this Agreement and shall not be deemed
to
limit or affect any of the provisions hereof.
Section
5.7.
Successors and Assigns
. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors
and
permitted assigns. The Company may not assign this Agreement or any
rights or obligations hereunder without the prior written consent of each
Purchaser (other than by merger). Any Purchaser may assign any or all
of its rights under this Agreement to any Person to whom such Purchaser assigns
or transfers any Securities, provided such transferee agrees in writing to
be
bound, with respect to the transferred Securities, by the provisions of the
Transaction Documents that apply to the “Purchasers.”
Section
5.8.
No Third-Party Beneficiaries
. This Agreement is
intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in
Section 4.8.
Section
5.9.
Governing Law
. All questions concerning the
construction, validity, enforcement and interpretation of the Transaction
Documents shall be governed by and construed and enforced in accordance with
the
internal laws of the State of New York, without regard to the principles
of
conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively
in
the state and federal courts sitting in the City of New York. Each party
hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court,
that
such suit, action or proceeding is improper or is an inconvenient venue for
such
proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Agreement and agrees that such service
shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law. If
either party shall commence an action or proceeding to enforce any provisions
of
the Transaction Documents, then the prevailing party in such action or
proceeding shall be reim-
bursed
by
the other party for its reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such action
or
proceeding.
Section
5.10.
Survival
. The representations and warranties
contained herein shall survive the Closing and the delivery of the Shares
and
Warrant Shares.
Section
5.11.
Execution
. This Agreement may be executed in two
or more counterparts, all of which when taken together shall be considered
one
and the same agreement and shall become effective when counterparts have
been
signed by each party and delivered to the other party, it being understood
that
both parties need not sign the same counterpart. In the event that
any signature is delivered by facsimile transmission or by e-mail delivery
of a
“.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
Section
5.12.
Severability
. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties
hereto shall use their commercially reasonable efforts to find and employ
an
alternative means to achieve the same or substantially the same result as
that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would
have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void
or
unenforceable.
Section
5.13.
Rescission and Withdrawal Right
. Notwithstanding
anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser
exercises a right, election, demand or option under a Transaction Document
and
the Company does not timely perform its related obligations within the periods
therein provided, then such Purchaser may rescind or withdraw, in its sole
discretion from time to time upon written notice to the Company, any relevant
notice, demand or election in whole or in part without prejudice to its future
actions and rights; provided, however, in the case of a rescission of an
exercise of a Warrant, the Purchaser shall be required to return any shares
of
Common Stock delivered in connection with any such rescinded exercise
notice.
Section
5.14.
Replacement of Securities
. If any certificate or
instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution
for
and upon cancellation thereof (in the case of mutilation), or in lieu of
and
substitution therefor, a new certificate or instrument, but only upon receipt
of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction. The applicant for a new certificate or instrument under
such circumstances shall also pay any reasonable third-party costs (including
customary indemnity) associated with the issuance of such replacement
Securities.
Section
5.15.
Remedies
. In addition to being entitled to
exercise all rights provided herein or granted by law, including recovery
of
damages, each of the Purchasers and the Company will be entitled to specific
performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations contained in the Transaction Documents
and
hereby agrees to waive and not to assert in any action for specific performance
of any such obligation the defense that a remedy at law would be
adequate.
Section
5.16.
Payment Set Aside
. To the extent that the Company
makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and
such
payment or payments or the proceeds of such enforcement or exercise or any
part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside, recovered from, disgorged by or are required to be refunded, repaid
or otherwise restored to the Company, a trustee, receiver or any other person
under any law (including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the extent
of any
such restoration the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not
occurred.
Section
5.17.
Independent Nature of Purchasers’ Obligations and
Rights
. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser,
and no Purchaser shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any Transaction
Document. Nothing contained herein or in any other Transaction
Document, and no action taken by any Purchaser pursuant thereto, shall be
deemed
to constitute the Purchasers as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that the Purchasers
are in
any way acting in concert or as a group with respect to such obligations
or the
transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation, the rights arising out of this Agreement or
out of
the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate
legal counsel in their review and negotiation of the Transaction
Documents. The Company has elected to provide all Purchasers with the
same terms and Transaction Documents for the convenience of the Company and
not
because it was required or requested to do so by the Purchasers.
Section
5.18.
Liquidated Damages
. The Company’s obligations to
pay any partial liquidated damages or other amounts owing under the Transaction
Documents is a continuing obligation of the Company and shall not terminate
until all unpaid partial liquidated damages and other amounts have been paid
notwithstanding the fact that the instrument or security pursuant to which
such
partial liquidated damages or other amounts are due and payable shall have
been
canceled.
Section
5.19.
Saturdays, Sundays, Holidays, etc
. If the last or
appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a
Business
Day, then such action may be taken or such right may be exercised on the
next
succeeding Business Day.
Section
5.20.
Construction
. The parties agree that each of them and/or
their respective counsel has reviewed and had an opportunity to revise the
Transaction Documents and, therefore, the normal rule of construction to
the
effect that any ambiguities are to be resolved against the drafting party
shall
not be employed in the interpretation of the Transaction Documents or any
amendments hereto.
Section
5.21.
Waiver of Jury Trial
. In any action, suit or
proceeding in any jurisdiction brought by any party against any other party,
the
parties each knowingly and intentionally, to the greatest extent permitted
by
applicable law, hereby absolutely, unconditionally, irrevocably and expressly
waives forever trial by jury.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories
as of
the date first indicated above.
AMARIN
CORPORATION PLC
|
Address
for Notice:
|
By:
__________________________________
Name:
Title:
|
Fax:
|
With
a copy to (which shall not constitute notice):
|
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO AMRN SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the
date
first indicated above.
Name
of
Purchaser:
Signature
of Authorized Signatory of Purchaser
:
Name
of
Authorized
Signatory:
Title
of
Authorized Signatory:
Email
Address of Purchaser:
Fax
Number of Purchaser:
Address
for Notice of Purchaser:
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $_________________
Shares: _________________
Warrant
Shares: __________________
EIN
Number:
[PROVIDE THIS UNDER SEPARATE
COVER]
Name
of
Purchaser:
DTC
Account Details:
Name
of
DTC Participant:
__________________________________
(your
broker or custodian bank)
Address of DTC Participant:
___________________________________
(address
of your broker or custodian bank)
___________________________________
___________________________________
DTC
Participant Account Number:
___________________________________
Client
Account (“
Account Holder
”) number
at
DTC
Participant:
___________________________________
Address
of Account Holder:
___________________________________
___________________________________
___________________________________
Exhibit
99.7
DEBT
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “
Agreement
”) is dated as of December
4, 2007, between Amarin Corporation plc, a corporation formed under the laws
of
England and Wales (the “
Company
”), and each purchaser identified on the
signature pages hereto (each, including its successors and assigns, a
“
Purchaser
” and collectively the “
Purchasers
”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
an effective registration statement under the Securities Act of 1933, as amended
(the “
Securities Act
”), the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company, securities of the Company as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agree as
follows:
ARTICLE
1
DEFINITIONS
Section
1.1
Definitions
. In addition to
the terms defined elsewhere in this Agreement, for all purposes of this
Agreement, the following terms have the meanings set forth in this Section
1.1:
“
ADSs
”
means American Depositary Shares, each representing one Ordinary Share of the
Company, par value GBP 0.05 per share, and each evidenced by an American
Depositary Receipt, issued pursuant to the terms of the Deposit
Agreement.
“
Affiliate
”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
a
Person as such terms are used in and construed under Rule 405 under the
Securities Act. With respect to a Purchaser, any investment fund or
managed account that is managed on a discretionary basis by the same investment
manager as such Purchaser will be deemed to be an Affiliate of such
Purchaser.
“
Base
Prospectus
” means the prospectus in the form in which it appears in the
Registration Statement.
“
Board
of Directors
” means the board of directors of the Company.
“
Business
Day
” means any day except any Saturday, any Sunday, any day which is a
federal legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by law or
other
governmental action to close.
“
Closing
”
means the closing of the purchase and sale of the Securities pursuant to Section
2.1.
“
Closing
Date
” has the meaning set forth in Section 2.1(4).
“
Commission
”
means the Securities and Exchange Commission.
“
Common
Stock
” means the Ordinary Shares of the Company, par value GBP 0.05 per
share, and any other class of securities into which such securities may
hereafter be reclassified or changed into.
“
Common
Stock Equivalents
” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.
“
Company
Counsel
” means Cahill Gordon & Reindel LLP, New York, NY, and
Kirkpatrick & Lockhart Preston Gates Ellis LLP, London,
England.
“
Conversion
Shares
” means the Shares issuable upon conversion of the
Debentures.
“
Debentures
”
means the 8% Convertible Debentures due December 6, 2010, issued under the
Indenture and sold pursuant hereto.
“
Deposit
Agreement
” means the Company’s agreement with National City Nominees Limited
of Citigroup Centre, Canada Square, Canary Wharf, London, E14 5LB, being the
nominee of Citibank, N.A., the Company’s depositary for its ADS program (the
“
ADS Depositary
”).
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
“
Exempt
Issuance
” means the issuance of (a) shares of Common Stock or options to
employees, officers or directors of the Company pursuant to any stock or option
plan duly adopted for such purpose, by a majority of the non-employee members
of
the Board of Directors or a majority of the members of a committee of
non-employee directors established for such purpose, (b) securities upon
the exercise or exchange of or conversion of any Securities issued hereunder
and/or other securities exercisable or exchangeable for or convertible into
shares of Common Stock issued and outstanding on the date of this Agreement,
provided that such securities have not been amended since the date of this
Agreement to increase the number of such securities or to decrease the exercise,
exchange or conversion price of such securities, (c) warrants to purchase 10,000
shares of Common Stock issued or to be issued to Dan Fischer and shares of
Common Stock upon exercise thereof, (d) shares of Common Stock in connection
with the acquisition by the Company of Ester Neurosciences Ltd., an Israeli
company, pursuant to the definitive agreement relating thereto, and payment
of
related fees, (e) the convertible debt and equity financings concurrently being
offered by the Company as described in the Prospectus Supplement, and (f)
securities issued pursuant to acquisitions or strategic transactions approved
by
a majority of the disinterested directors of the Company, provided that any
such
issuance shall only be to a Person which is, itself or through its subsidiaries,
an operating company in a business synergistic with the business of the Company
and in which the Company receives benefits in addition to the investment of
funds, but shall not include a transaction in which the Company is issuing
securities primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities.
“
Indenture
”
means the Senior Indenture dated as of December 6, 2007 between the Company,
as
issuer, and Wilmington Trust Company, as trustee, as supplemented by the
supplemental indenture, dated as of December 6, 2007 setting forth the terms
of
the Debentures.
“
Material
Adverse Effect
” has the meaning set forth in Section 3.1(a).
“
Person
”
means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other entity
of any kind.
“
Prospectus
”
means the final prospectus filed for the Registration Statement.
“
Prospectus
Supplement
” means the supplement to the Prospectus complying with Rule
424(b) of the Securities Act that is filed with the Commission and delivered
by
the Company to each Purchaser at the Closing.
“
Purchaser
Party
” shall have the meaning ascribed to such term in Section
4.8.
“
Registration
Statement
” means the effective registration statement with Commission file
No. 333-135718 which registers the sale of the Debentures, the Warrants and
the
Shares to the Purchasers.
“
Rule
144
” means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.
“
SEC
Reports
” means all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years
preceding the date hereof (or such shorter period as the Company was required
by
law to file such material).
“
Securities
”
means the Debentures, the Warrants and the Shares.
“
Securities
Act
” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“
Shares
”
means the ADSs to be issued to each Purchaser upon conversion of the Debentures
or upon exercise of the Warrants.
“
Short
Sales
” means all “short sales” as defined in Rule 200 of Regulation SHO
under the Exchange Act (but shall not be deemed to include the location and/or
reservation of borrowable shares of Common Stock).
“
Subscription
Amount
” means, as to each Purchaser, the aggregate amount to be paid for
Debentures and Warrants purchased hereunder as specified below such Purchaser’s
name on the signature page of this Agreement and next to the heading
“Subscription Amount,” in United States dollars and in immediately available
funds.
“
Subsidiary
”
means any subsidiary of the Company and shall, where applicable, include any
subsidiary of the Company formed or acquired after the date hereof.
“
Time
of Sale Prospectus
” means the preliminary prospectus, if any, together with
the free writing prospectuses, if any, used in connection with the sale
contemplated by this Agreement, including any documents incorporated by
reference therein.
“
Trading
Day
” means a day on which the NASDAQ Capital Market is open for
trading.
“
Trading
Market
” means the following markets or exchanges on which the Common Stock
is listed or quoted for trading on the date in question: the American Stock
Exchange, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global
Select Market, the New York Stock Exchange or the OTC Bulletin
Board.
“
Transaction
Documents
” means this Agreement, the Indenture, the Debentures, the Warrants
and any other documents or agreements executed in connection with the purchase
and sale of the Securities to the Purchasers hereunder.
“
Warrants
”
means, collectively, the Share purchase warrants delivered to the Purchasers
at
the Closing in accordance with Section 2.2(a) hereof, which Warrants shall
be
exercisable immediately and have a term of exercise equal to 5 years, in the
form of Exhibit A attached hereto.
“
Warrant
Shares
” means the Shares issuable upon exercise of the
Warrants.
ARTICLE
2
PURCHASE
AND SALE
Section
2.1
Purchase and Sale; Procedures
. At the
Closing, upon the terms and subject to the conditions set forth herein, the
Company agrees to sell, and the Purchasers, severally and not jointly, agree
to
purchase, up to an aggregate of $2,750,000.00 of Debentures and
Warrants. The purchase and sale of the Securities to each Purchaser
hereunder is expressly conditioned on (a) the public announcement by the Company
that it has entered into a definitive agreement for the acquisition by the
Company of Ester Neurosciences Ltd., an Israeli company, and that it intends
to
call an extraordinary general meeting of shareholders to effect a reverse stock
split for the purpose of bringing the Company into compliance with the
continuing listing requirements of the Nasdaq Capital Market (the
“
Announcement
”), and (b) such Purchaser’s satisfactory review of the
Prospectus Supplement. Prior to the satisfaction of each of such
conditions, this Agreement shall only constitute an indication of interest
by
the purchaser in the offered securities. The process for funding and
delivery of the Securities to each Purchaser shall be as follows:
(1) no
later than 4:00 PM Eastern Standard Time in the United States (“EST”) on the
date of this Agreement, the Purchaser shall deliver executed signature pages
hereto, and the Company shall deliver legal opinions of Company Counsel,
substantially in the forms of Exhibits B and C attached hereto, in each case
to
a mutually-agreed third party to be held pending release of funds;
(2) prior
to the end of the calendar day on the date of this Agreement, the Company shall
provide to each Purchaser a copy of the Prospectus Supplement;
(3) the
Company plans to make the Announcement prior to 7:30 AM EST on the business
day
following the date of this Agreement, whereupon the condition in clause (a)
above shall be satisfied;
(4) on
the business day following the date of this Agreement (assuming the condition
in
clause (a) above is satisfied as provided in the preceding clause (3)), (A)
at
7:30 AM EST, the condition in clause (b) above shall be satisfied, unless prior
to that time the Company receives notice in writing from the Purchaser that
the
Purchaser is not satisfied with the Prospectus Supplement,
such notice
to be faxed to: 011 3531 6699 028, Attention: Tom Maher, or e-mailed
to:tom.maher@amarincorp.com
; (B) simultaneously with the satisfaction
of the condition in clause (b) above as provided in the preceding clause (A),
the signature pages and legal opinion referred to in clause (1) shall be
released to the parties, and (C) no later than 5:00 PM EST, the Purchaser shall
deliver immediately available funds equal to its Subscription Amount by wire
transfer to the following account:
Account
Name:
Amarin Corporation
plc
Account
No:
11427458
Sort
Code:
30 - 93 - 05
Swift
Code:
LOYDGB21265
IBAN
No:
GB82 LOYD 3093 0511 4274
58
(the
date
on which these events occur, the “
Closing Date
”); and
(e) on
the business day following the Closing Date (the “
Securities Delivery
Date
”), subject, as to each Purchaser, to receipt of such Purchaser’s
Subscription Amount by the Company, the Company shall commence issuing the
Securities by (a) executing the Indenture and the Debentures issued and sold
hereunder and ordering the trustee under the Indenture to authenticate the
Debentures issued and sold hereunder, and (b) issuing to the Purchaser a Warrant
registered in the name of such Purchaser to purchase up to a number of shares
of
Common Stock equal to 40% of such Purchaser’s Subscription Amount divided by
$0.48, with an exercise price equal to $0.48, subject to adjustment as provided
therein (such Warrant certificate may be delivered within three Trading Days
of
the Closing Date).
Section
2.2
Closing
. The Closing shall occur at the
offices of Cahill Gordon & Reindel LLP at 80 Pine Street, NY, NY 10005
or such other location as the parties shall mutually agree.
Section
2.3
Closing Conditions
.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Purchasers contained herein;
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed
at or prior to the Closing Date shall have been performed; and
(iii) the
delivery by each Purchaser of the items to be delivered by it as set forth
in
Section 2.1 of this Agreement, excluding the delivery of the Debentures, which
occurs on the Securities Delivery Date.
(b) The
respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Company contained herein;
(ii) all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items to be delivered by it as set forth in
Section 2.1 of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since
the
date hereof; and
(v) from
the date hereof to the Closing Date, trading in the Common Stock shall not
have
been suspended by the Commission or the Company’s principal Trading Market
(except for any suspension of trading of limited duration agreed to by the
Company, which suspension shall be terminated prior to the Closing), and, at
any
time prior to the Closing Date, trading in securities generally as reported
by
Bloomberg L.P. shall not have been suspended or limited, or minimum prices
shall
not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been
declared either by the United States or New York State authorities nor shall
there have occurred any material outbreak or escalation of hostilities or other
national or international calamity of such magnitude in its effect on, or any
material adverse change in, any financial market which, in each case, in the
reasonable judgment of each Purchaser, makes it impracticable or inadvisable
to
purchase the Securities at the Closing.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
Section
3.1
Representations and Warranties of the
Company
. The Company makes the following representations and
warranties to each of the Purchasers:
(a)
Organization
and Qualification
. All of the direct and indirect subsidiaries
(individually, a “
Subsidiary
”) of the Company are set forth on in the
Company’s annual report on Form 20-F for the fiscal year ended December 31,
2006. The Company owns, directly or indirectly, all of the capital
stock or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security
interest, encumbrance, right of first refusal, preemptive right or similar
restriction), and all the issued and outstanding shares of capital stock of
each
Subsidiary are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase
securities. The Company is duly incorporated and validly existing
under the laws of England and Wales, with the requisite power and authority
to
own and use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or
default of any of the provisions of its respective certificate or articles
of
incorporation, bylaws or other organizational or charter
documents. The Company is duly qualified to conduct business as a
foreign corporation in each United States jurisdiction in which the nature
of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing,
as
the case may be, could not reasonably be expected to have (i) a material adverse
effect on the legality, validity or enforceability of any Transaction Document,
(ii) a material adverse effect on the results of operations, assets, business,
or financial condition of the Company and the Subsidiaries, taken as a whole,
or
(iii) a material adverse effect on the Company’s ability to perform in any
material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “
Material Adverse Effect
”) and no
“
Proceeding
” (which for purposes of this Agreement shall mean any action,
claim, suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced
or
threatened) has been instituted in any such jurisdiction revoking, limiting
or
curtailing or seeking to revoke, limit or curtail such power and authority
or
qualification. Each Subsidiary is duly incorporated or otherwise
organized and validly existing 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. Each Transaction Document (except the
Debentures) 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. The Debentures upon delivery will
have been duly executed by the Company and, when authenticated by the trustee
and delivered in accordance with the terms hereof and thereof, will constitute
the valid and binding obligation of the Company, entitled t the benefits of
the
Indenture and 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
(as
defined in subsection 3(D) below), 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, or under the rules and regulations
of
the Financial Industry Regulatory Authority (“
FINRA
”) (collectively, the
“
Required Approvals
”).
(e)
Issuance
of the Shares; Registration
. The Shares 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 into which the Securities are
convertible or exercisable 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 5, 2007 among the Company and the other parties named
therein. Except as disclosed the SEC Reports, the Registration
Statement, the Base Prospectus, the Prospectus Supplement or any Time of Sale
Prospectus, no Person has any right of first refusal, preemptive right, right
of
participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. Except as a result of the
purchase and sale of the Securities or as described above or in the SEC Reports,
the Registration Statement,
the
Base
Prospectus, the Prospectus Supplement or any Time of Sale Prospectus, and except
the Neurostat Pharmaceuticals Inc. and Strategic Pharmaceutical Solutions
Warrants, there are no outstanding options, warrants, script rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or exchangeable for,
or
giving any Person any right to subscribe for or acquire, any shares of Common
Stock, or contracts, commitments, or agreements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock
or
Common Stock Equivalents. The issuance and sale of the Securities
will not result in a right of any holder of Company securities to adjust the
exercise, conversion, exchange or reset price under such securities. All of
the
outstanding shares of capital stock of the Company are validly issued, fully
paid and nonassessable, have been issued in compliance with all applicable
securities laws, and none of such outstanding shares was issued in violation
of
any preemptive rights or similar rights to subscribe for or purchase
securities. There are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s capital stock to which
the Company is a party or, to the knowledge of the Company, between or among
any
of the Company’s stockholders.
(g)
SEC
Reports; Financial Statements
. The Company has complied in all
material respects with requirements to file all reports, schedules, forms,
statements and other documents required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “
SEC Reports
”) on a timely
basis or has received a valid extension of such time of filing and has filed
any
such SEC Reports prior to the expiration of any such extension. As of
their respective dates, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The financial statements of the
Company included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles (“
GAAP
”)
applied on a consistent basis during the periods involved (the financial
statements are prepared under U.K. GAAP and reconciled to U.S. GAAP), except
as
may be otherwise specified in such financial statements or the notes thereto
and
except that unaudited financial statements may not be 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.
(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, 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
. The Company has not, and to its knowledge no one
acting on its behalf has, (i) taken, directly or indirectly, any action designed
to cause or to result in the stabilization or manipulation of the price of
any
security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to
pay
to any person any compensation for soliciting another to purchase any other
securities of the Company.
(cc)
Approvals
. The
issuance and listing on the Nasdaq Capital Market of the Shares requires no
further approvals, including but not limited to, the approval of
shareholders.
(dd)
FINRA
Affiliations
. There are no affiliations with any Financial
Industry Regulatory Authority (“
FINRA
”) member firm among the Company’s
officers, directors or, to the knowledge of the Company, any five percent (5%)
or greater stockholder of the Company.
(ee)
Acknowledgment
Regarding Purchasers’ Purchase of Securities
. The Company
acknowledges and agrees that each of the Purchasers is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated thereby. The Company further
acknowledges that no Purchaser is acting as a financial advisor or fiduciary
of
the Company (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated thereby and any advice given by
any
Purchaser or any of their respective representatives or agents in connection
with the Transaction Documents and the transactions contemplated thereby is
merely incidental to the Purchasers’ purchase of the Securities. The
Company further represents to each Purchaser that the Company’s decision to
enter into this Agreement and the other Transaction Documents has been based
solely on the independent evaluation of the transactions contemplated hereby
by
the Company and its representatives.
(ff)
Acknowledgement
Regarding Purchaser’s Trading Activity
. Anything in this
Agreement or elsewhere herein to the contrary notwithstanding (except for
Sections 3.2(e) and 4.13 hereof), it is understood and acknowledged by the
Company (i) that none of the Purchasers have been asked by the Company to agree,
nor has any Purchaser agreed, to desist from purchasing or selling, long and/or
short, securities of the Company, or “derivative” securities based on securities
issued by the Company or to hold the Securities for any specified term; (ii)
that past or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement
transactions, may negatively impact the market price of the Company’s
publicly-traded securities; (iii) that any Purchaser, and counter-parties
in “derivative” transactions to which any such Purchaser is a party, directly or
indirectly, presently may have a “short” position in the Common Stock, (iv) that
each Purchaser shall not be deemed to have any affiliation with or control
over
any arm’s length counter-party in any “derivative” transaction, (v) that one or
more Purchasers may engage in hedging activities at various times during
the
period
that the Securities are outstanding, including, without limitation, during
the
periods that the value of the Shares deliverable with respect to Securities
are
being determined, (vi) that such hedging activities (if any) could reduce the
value of the existing stockholders' equity interests in the Company at and
after
the time that the hedging activities are being conducted, and (vii) that such
aforementioned hedging activities do not constitute a breach of any of the
Transaction Documents.
Section
3.2
Representations and Warranties of the
Purchasers
. Each Purchaser, for itself and for no other
Purchaser, hereby represents and warrants as of the date hereof and as of the
Closing Date to the Company as follows:
(a)
Organization;
Authority
. Such Purchaser is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate or partnership power and authority
to
enter into and to consummate the transactions contemplated by this Agreement
and
otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of this Agreement and performance by such Purchaser of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate or similar action on the part of such
Purchaser. Each Transaction Document to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b)
Own
Account
. Such Purchaser is acquiring the Securities as principal
for its own account and not with a view to or for distributing or reselling
such
Securities or any part thereof in violation of the Securities Act or any
applicable state securities law, has no present intention of distributing any
of
such Securities in violation of the Securities Act or any applicable state
securities law and has no direct or indirect arrangement or understandings
with
any other persons to distribute or regarding the distribution of such Securities
(this representation and warranty not limiting such Purchaser’s right to sell
the Securities immediately pursuant to the Registration Statement or otherwise
in compliance with applicable federal and state securities laws) in violation
of
the Securities Act or any applicable state securities law. Such
Purchaser is acquiring the Securities hereunder in the ordinary course of its
business.
(c)
Purchaser
Status
. At the time such Purchaser was offered the Securities, it
was, and at the date hereof it is, and on each date on which it exercises any
Warrants, it will be either: (i) an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii)
a
“qualified institutional buyer” as defined in Rule 144A(a) under the Securities
Act. Such Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(d)
Experience
of Such Purchaser
. Such Purchaser, either alone or together with
its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits
and
risks of the prospective investment in the Securities, and has so evaluated
the
merits and risks of such investment. Such Purchaser is able to bear
the economic risk of an investment in the Securities and, at the present time,
is able to afford a complete loss of such investment.
(e)
Short
Sales and Confidentiality Prior to the Date Hereof
. Other than
consummating the transactions contemplated hereunder, such Purchaser has not,
nor has any Person acting on behalf of or pursuant to any understanding with
such Purchaser, directly or indirectly executed any purchases or sales,
including Short Sales, of the securities of the Company during the period
commencing from the time that such Purchaser first received a term sheet
(written or oral) from the Company or any other Person representing the Company
setting forth the material terms of the transactions contemplated hereunder
(“
Discussion Time
”). Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser's assets and
the
portfolio managers have no direct knowledge of the investment decisions made
by
the portfolio managers managing other portions of such Purchaser's assets,
the
representation set forth above shall only apply with respect to the portion
of
assets managed by the portfolio manager that made the investment decision to
purchase the Securities covered by this Agreement. Other than to
other Persons party to this Agreement, such Purchaser has maintained the
confidentiality of all disclosures made to it in connection with this
transaction (including the existence and terms of this
transaction).
ARTICLE
4
OTHER
AGREEMENTS OF THE PARTIES
Section
4.1
Shares
. If all or any portion of a
Debenture is converted or a Warrant is exercised at a time when there is an
effective registration statement to cover the issuance or resale of the Shares,
the Shares issued pursuant to any such conversion or exercise shall be issued
free of all legends. If at any time following the date hereof the
Registration Statement (or any subsequent registration statement registering
the
Shares) is not effective or is not otherwise available for the sale or resale
of
the Shares, the Company shall immediately notify the holders of the Debentures
and/or Warrants, as the case may be, in writing that such registration statement
is not then effective and thereafter shall promptly notify such holders when
the
registration statement is effective again and available for the sale or resale
of the Shares. The Company shall use best efforts to keep a
registration statement (including the Registration Statement) registering the
issuance or resale of the Conversion Shares and the Warrant Shares effective
during the term of the Debentures and the Warrants, respectively.
Section
4.2
Furnishing of Information
. Until the
earliest of the time that (i) no Purchaser owns Securities (based solely on
a
review of the transfer agent’s list of registered holders of Common Stock, a
list of non-objecting beneficial holders, the registrar’s registry for the
Debentures and the Company’s registry for the Warrants), (ii) the Debentures
have matured or (iii) the Warrants have expired, the Company covenants to timely
file (or obtain extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Company after the date
hereof pursuant to the Exchange Act even if the Company is not then
subject
to
the
reporting requirements of the Exchange Act. As long as any Purchaser
owns Securities, if the Company is not required to file reports pursuant to
the
Exchange Act, it will prepare and furnish to the Purchasers and make publicly
available in accordance with Rule 144(c) such information as is required for
the
Purchasers to sell the Securities under Rule 144. The Company further
covenants that, if at any time following the date hereof the Registration
Statement (or any subsequent registration statement registering the Shares)
is
not effective or is not otherwise available for the sale or resale of the
Shares, it will take such further action as any Purchaser may reasonably
request, to the extent required from time to time, to enable such Purchaser
to
sell such Shares without registration under the Securities Act within the
requirements of the exemption provided by Rule 144.
Section
4.3
Integration
. The Company shall not
sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in Section 2 of the Securities Act) that would
be
integrated with the offer or sale of the Securities for purposes of the rules
and regulations of any Trading Market such that it would require shareholder
approval prior to the closing of such other transaction unless shareholder
approval is obtained before the closing of such subsequent
transaction.
Section
4.4
Securities Laws Disclosure;
Publicity
. The Company shall, by 8:30 a.m. (New York City time)
on the Trading Day immediately following the Closing Date, issue a Current
Report on Form 6-K, disclosing the material terms of the purchase and sale
of
the Securities pursuant to this Agreement, and filing the Transaction Documents
as exhibits thereto. Notwithstanding the foregoing, the Company shall
not publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any filing with the Commission or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (i) as
required by federal securities law in connection with the filing of final
Transaction Documents (including signature pages thereto) with the Commission
and (ii) to the extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Purchasers with prior
notice of such disclosure permitted under this clause (ii).
Section
4.5
Shareholder Rights Plan
. No claim will be
made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share
acquisition, business combination, poison pill (including any distribution
under
a rights agreement) or similar anti-takeover plan or arrangement in effect
or
hereafter adopted by the Company, or that any Purchaser could be deemed to
trigger the provisions of any such plan or arrangement, by virtue of receiving
Securities under the Transaction Documents or under any other agreement between
the Company and the Purchasers.
Section
4.6
Non-Public Information
. Except with respect to
the material terms and conditions of the transactions contemplated by the
Transaction Documents, the Company covenants and agrees that neither it nor
any
other Person acting on its behalf will provide any Purchaser or its agents
or
counsel with any information that the Company believes constitutes material
non-public information, unless prior thereto such Purchaser shall have executed
a written agreement regarding the confidentiality and use of such
information. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in
securities of the Company.
Section
4.7
Use of Proceeds
. Except as set forth on
Schedule 4.7 attached hereto, the Company shall use the net proceeds from the
sale of the Securities hereunder for working capital purposes and shall not
use
such proceeds for (a) the satisfaction of any portion of the Company’s debt
(other than payment of trade payables in the ordinary course of the Company’s
business and prior practices), (b) the redemption of any Common Stock or Common
Stock Equivalents or (c) the settlement of any outstanding
litigation.
Section
4.8
Indemnification of
Purchasers
. Subject to the provisions of this Section 4.8, to the
extent permitted by law, the Company will indemnify and hold each Purchaser
and
its directors, officers, shareholders, members, partners, agents and employees
(and any other Persons with a functionally equivalent role of a Person holding
such titles notwithstanding a lack of such title or any other title), each
Person who controls such Purchaser (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors, officers,
shareholders, members, partners agents or employees (and any other Persons
with
a functionally equivalent role of a Person holding such titles notwithstanding
a
lack of such title or any other title) of such controlling persons (each, a
“
Purchaser Party
”) harmless from any and all losses, liabilities,
obligations, claims, contingencies, damages, costs and expenses, including
all
judgments, amounts paid in settlements, court costs and reasonable attorneys’
fees and costs of investigation that any such Purchaser Party may suffer or
incur as a result of or relating to (a) any breach of any of the
representations, warranties, covenants or agreements made by the Company in
this
Agreement or in the other Transaction Documents or (b) any action instituted
against a Purchaser in any capacity, or any of them or their respective
Affiliates, by any stockholder of the Company who is not an Affiliate of such
Purchaser, with respect to any of the transactions contemplated by the
Transaction Documents (unless such action is based upon a breach of such
Purchaser’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Purchaser may have with
any
such stockholder or any violations by the Purchaser of state or federal
securities laws or any conduct by such Purchaser which constitutes fraud, gross
negligence, willful misconduct or malfeasance). If any action shall
be brought against any Purchaser Party in respect of which indemnity may be
sought pursuant to this Agreement, such Purchaser Party shall promptly notify
the Company in writing, and the Company shall have the right to assume the
defense thereof with counsel of its own choosing reasonably acceptable to the
Purchaser Party. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but
the fees and expenses of such counsel shall be at the expense of such Purchaser
Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or (iii)
in such action there is, in the reasonable opinion of such separate counsel,
a
material conflict on any material issue between the position of the Company
and
the position of such Purchaser Party, in which case the Company shall be
responsible for the reasonable fees and expenses of no more than one such
separate counsel. The Company will not be liable to any Purchaser
Party under this Agreement (i) for any settlement by a Purchaser Party effected
without the Company’s prior written consent, which shall not be unreasonably
withheld or delayed; or (ii) to the extent, but only to the extent that a loss,
claim, damage or liability is attributable to any Purchaser Party’s breach of
any of the representations, warranties, covenants or agreements made by such
Purchaser Party in this Agreement or in the other Transaction
Documents.
Section
4.9
Reservation of Common Stock
. As of the
date hereof, the Company has reserved and the Company shall continue to reserve
and keep available at all times, free of preemptive rights, a sufficient number
of shares of Common Stock for the purpose of enabling the Company to issue
Conversion Shares pursuant to any conversion of the Debentures and Warrant
Shares pursuant to any exercise of the Warrants.
Section
4.10
Listing of Common Stock
. The
Company hereby agrees to use all commercially reasonable efforts to maintain
the
listing of the Common Stock on a Trading Market, and as soon as reasonably
practicable following the Closing to list all of the Shares on such Trading
Market. The Company further agrees, if the Company applies to have
the Common Stock traded on any other Trading Market, it will include in such
application all of the Shares, and will take such other action as is necessary
to cause all of the Shares to be listed on such other Trading Market as promptly
as possible. The Company will use all commercially reasonable efforts
to continue the listing and trading of its Common Stock on a Trading
Market.
Section
4.11
Equal Treatment of Purchasers
. No
consideration shall be offered or paid to any Person to amend or consent to
a
waiver or modification of any provision of any of the Transaction Documents
unless the same consideration is also offered to all of the parties to the
Transaction Documents. For clarification purposes, this provision
constitutes a separate right granted to each Purchaser by the Company and
negotiated separately by each Purchaser, and is intended for the Company to
treat the Purchasers as a class and shall not in any way be construed as the
Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of Securities or otherwise.
Section
4.12
Subsequent Equity Sales
.
(a) From
the date hereof until 45 days after the Closing Date, neither the Company nor
any Subsidiary shall issue shares of Common Stock or Common Stock Equivalents;
provided
,
however
, the 45 day period set forth in this Section
4.12 shall be extended for the number of Trading Days during such period in
which (i) trading in the Common Stock is suspended by any Trading Market, or
(ii) the Registration Statement is not effective or the prospectus included
in
the Registration Statement may not be used by the Purchasers for the resale
of
the Shares.
(b) From
the date hereof until such time as no Purchaser holds any of the Securities
(based solely on a review of the transfer agent’s list of registered holders of
Common Stock, a list of non-objecting beneficial holders, the registrar’s
registry of the Debentures and the Company’s registry for the Warrants), the
Company shall be prohibited from effecting or entering into an agreement to
effect any Subsequent Financing involving a Variable Rate
Transaction. “
Variable Rate Transaction
” means a transaction
in which the Company issues or sells any debt or equity securities that are
convertible into, exchangeable or exercisable for, or include the right to
receive additional shares of Common Stock at a conversion, exercise or exchange
rate or other price that is based upon and/or varies with the trading prices
of
or quotations for the shares of Common Stock at any time after the initial
issuance of such debt or equity securities. The Purchasers shall be
entitled to obtain injunctive relief against the Company to preclude any such
issuance, which remedy shall be in addition to any right to collect
damages.
(c) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt
Issuance, except that no Variable Rate Transaction shall be an Exempt
Issuance.
Section
4.13
Short Sales and Confidentiality After the Date
Hereof
. Each Purchaser, severally and not jointly with the other
Purchasers, covenants that neither it nor any Affiliate acting on its behalf
or
pursuant to any understanding with it will execute any Short Sales during the
period commencing at the Discussion Time and ending at the time that the
conditions in Sections 2.1(a) and 2.1(b) are deemed satisfied as provided in
Sections 2.1(3) and 2.1(4) (the “
Time of Satisfaction
”). Each
Purchaser, severally and not jointly with the other Purchasers, covenants that
until such Time of Satisfaction, such Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the
information included in the Disclosure Schedules. Notwithstanding the
foregoing, no Purchaser makes any representation, warranty or covenant hereby
that it will not engage in Short Sales in the securities of the Company after
the Time of Satisfaction. Notwithstanding the foregoing, in the case
of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser’s assets and the
portfolio managers have no direct knowledge of the investment decisions made
by
the portfolio managers managing other portions of such Purchaser’s assets, the
covenant set forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision to purchase
the Securities covered by this Agreement.
Section
4.14
Delivery of Securities After
Closing
. The Company shall deliver, or cause to be delivered, the
respective Securities purchased by each Purchaser to such Purchaser within
3
Trading Days of the Closing Date.
Section
4.15
Participation Right
. So long as a
Purchaser is a registered holder of Debentures, such Purchaser shall have a
right of participation in any future equity or debt financing by the Company
for
cash (other than any issuance of ADSs or Ordinary Shares upon exercise of
options issued or to be issued pursuant to the Company’s stock option plans,
upon exercise of any existing (outstanding or approved) warrants or other
existing (outstanding or approved) securities exercisable for ADSs or Ordinary
Shares or pursuant to the Company’s Equity Credit Agreement with Brittany
Capital Management Ltd. dated June 1, 2007) on terms equal to those of other
investors in such future financings. The Company shall provide
written notice to each such Purchaser providing in reasonable detail the terms
of any such proposed future financing a reasonable period of time prior to
the
completion thereof and, unless a Purchaser provides the Company notice in
writing within 3 days of the receipt of the notice from the Company that it
wishes to participate in such financing, such Purchaser’s right with respect to
such proposed future financing shall be deemed waived.
ARTICLE
5
MISCELLANEOUS
Section
5.1
Termination
. This Agreement may be terminated
by any Purchaser, as to such Purchaser’s obligations hereunder only and without
any effect whatsoever on the obligations between the Company and the other
Purchasers, by written notice to the other parties, if the Closing has not
been
consummated on or before December 15, 2007;
provided
,
however
,
that no such termination will affect the right of any party to sue for any
breach by the other party (or parties).
Section
5.2
Fees and Expenses
. Except as
expressly set forth in the Transaction Documents to the contrary, each party
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to
the
negotiation, preparation, execution, delivery and performance of this
Agreement. The Per Unit Purchase Price includes costs of issuance,
such as all Transfer Agent fees, stamp taxes and other taxes and duties levied
in connection with the delivery of any Securities to the
Purchasers.
Section
5.3
Entire Agreement
. The Transaction
Documents, together with the exhibits and schedules thereto, the Prospectus
and
the Prospectus Supplement, contain the entire understanding of the parties
with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and
schedules.
Section
5.4
Notices
. Any and all notices or other
communications or deliveries required or permitted to be provided hereunder
shall be in writing and shall be deemed given and effective on the earliest
of
(a) the date of transmission, if such notice or communication is delivered
via
facsimile at the facsimile number set forth on the signature pages attached
hereto prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next
Trading Day after the date of transmission, if such notice or communication
is
delivered via facsimile at the facsimile number set forth on the signature
pages
attached hereto on a day that is not a Trading Day or later than 5:30 p.m.
(New
York City time) on any Trading Day, (c) the 2nd Trading Day following the date
of mailing, if sent by U.S. nationally recognized overnight courier service,
or
(d) upon actual receipt by the party to whom such notice is required to be
given. The address for such notices and communications shall be as
set forth on the signature pages attached hereto.
Section
5.5
Amendments; Waivers
. No provision of this
Agreement may be waived or amended except in a written instrument signed, in
the
case of an amendment, by the Company and the Purchasers of at least 85% of
the
Debentures still held by the Purchasers or, in the case of a waiver, by the
party against whom enforcement of any such waived provision is
sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair
the
exercise of any such right.
Section
5.6
Headings
. The headings herein are
for convenience only, do not constitute a part of this Agreement and shall
not
be deemed to limit or affect any of the provisions hereof.
Section
5.7
Successors and Assigns
. This Agreement
shall be binding upon and inure to the benefit of the parties and their
successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser (other than by merger). Any Purchaser may
assign any or all of its rights under this Agreement to any Person to whom
such
Purchaser assigns or transfers any Securities, provided such transferee agrees
in writing to be bound, with respect to the transferred Securities, by the
provisions of the Transaction Documents that apply to the
“Purchasers.”
Section
5.8
No Third-Party Beneficiaries
. This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set
forth
in Section 4.8.
Section
5.9
Governing Law
. All questions
concerning the construction, validity, enforcement and interpretation of the
Transaction Documents shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York, without regard
to
the principles of conflicts of law thereof. Each party agrees that
all legal proceedings concerning the interpretations, enforcement and defense
of
the transactions contemplated by this Agreement and any other Transaction
Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the
state
and federal courts sitting in the City of New York, borough of Manhattan for
the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper or is an inconvenient venue for
such
proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Agreement and agrees that such service
shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law. If
either party shall commence an action or proceeding to enforce any provisions
of
the Transaction Documents, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
Section
5.10
Survival
. The representations and
warranties contained herein shall survive the Closing and the delivery of the
Debentures and the Warrants.
Section
5.11
Execution
. This Agreement may be
executed in two or more counterparts, all of which when taken together shall
be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party,
it
being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing
(or
on whose behalf such signature is executed) with the same force and effect
as if
such facsimile or “.pdf” signature page were an original thereof.
Section
5.12
Severability
. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
Section
5.13
Rescission and Withdrawal
Right
. Notwithstanding anything to the contrary contained in (and
without limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election, demand or option
under a Transaction Document and the Company does not timely perform its related
obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to
the
Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights; provided, however, in the case
of a
rescission of an exercise of a Warrant, the Purchaser shall be required to
return any shares of Common Stock delivered in connection with any such
rescinded exercise notice.
Section
5.14
Replacement of Securities
. If any
certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof (in the case of mutilation),
or
in lieu of and substitution therefor, a new certificate or instrument, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction. The applicant for a new certificate or
instrument under such circumstances shall also pay any reasonable third-party
costs (including customary indemnity) associated with the issuance of such
replacement Securities.
Section
5.15
Remedies
. In addition to being entitled
to exercise all rights provided herein or granted by law, including recovery
of
damages, each of the Purchasers and the Company will be entitled to specific
performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations contained in the Transaction Documents
and
hereby agrees to waive and not to assert in any action for specific performance
of any such obligation the defense that a remedy at law would be
adequate.
Section
5.16
Payment Set Aside
. To the extent that
the Company makes a payment or payments to any Purchaser pursuant to any
Transaction Document or a Purchaser enforces or exercises its rights thereunder,
and such payment or payments or the proceeds of such enforcement or exercise
or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are required to be
refunded, repaid or otherwise restored to the Company, a trustee, receiver
or
any other person under any law (including, without limitation, any bankruptcy
law, state or federal law, common law or equitable cause of action), then to
the
extent of any such restoration the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not
occurred.
Section
5.17
Independent Nature of Purchasers’ Obligations and
Rights
. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser,
and no Purchaser shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any Transaction
Document. Nothing contained herein or in any other Transaction
Document, and no action taken by any Purchaser pursuant thereto, shall be deemed
to constitute the Purchasers as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that the Purchasers are
in
any way acting in concert or as a group with respect to such obligations or
the
transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to
independently
protect and enforce its rights, including without limitation, the rights arising
out of this Agreement or out of the other Transaction Documents, and it shall
not be necessary for any other Purchaser to be joined as an additional party
in
any proceeding for such purpose. Each Purchaser has been represented
by its own separate legal counsel in their review and negotiation of the
Transaction Documents. The Company has elected to provide all
Purchasers with the same terms and Transaction Documents for the convenience
of
the Company and not because it was required or requested to do so by the
Purchasers.
Section
5.18
Liquidated Damages
. The Company’s
obligations to pay any partial liquidated damages or other amounts owing under
the Transaction Documents is a continuing obligation of the Company and shall
not terminate until all unpaid partial liquidated damages and other amounts
have
been paid notwithstanding the fact that the instrument or security pursuant
to
which such partial liquidated damages or other amounts are due and payable
shall
have been canceled.
Section
5.19
Saturdays, Sundays, Holidays, etc
. If the
last or appointed day for the taking of any action or the expiration of any
right required or granted herein shall not be a Business Day, then such action
may be taken or such right may be exercised on the next succeeding Business
Day.
Section
5.20
Construction
. The parties agree that each of
them and/or their respective counsel has reviewed and had an opportunity to
revise the Transaction Documents and, therefore, the normal rule of construction
to the effect that any ambiguities are to be resolved against the drafting
party
shall not be employed in the interpretation of the Transaction Documents or
any
amendments hereto.
Section
5.21
Waiver of Jury Trial
. In any action, suit or
proceeding in any jurisdiction brought by any party against any other party,
the
parties each knowingly and intentionally, to the greatest extent permitted
by
applicable law, hereby absolutely, unconditionally, irrevocably and expressly
waives forever trial by jury.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
AMARIN
CORPORATION PLC
|
|
Address
for Notice
:
|
By:
|
______________________________________________________
|
|
Fax:
|
|
Name:
|
|
|
|
Title:
|
|
|
With
a
copy to (which shall not constitute notice):
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER
SIGNATURE PAGES TO AMRN SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Purchaser: ________________________________________________________________
|
|
Signature
of Authorized Signatory of
Purchaser
:__________________________________________
|
|
Name
of Authorized
Signatory:________________________________________________________
|
|
Title
of Authorized
Signatory:_________________________________________________________
|
|
Email
Address of
Purchaser:__________________________________________________________
|
|
Fax
Number of
Purchaser:____________________________________________________________
|
|
Address
for Notice of
Purchaser:______________________________________________________
|
|
|
Address
for Delivery of Securities for Purchaser (if not same as address
for
notice):
|
|
|
Subscription
Amount: $_________________________________________
|
|
Shares:______________________________________________________
|
|
Warrant
Shares:_______________________________________________
|
|
EIN
Number:
[PROVIDE THIS UNDER SEPARATE
COVER]
|
|
Name
of
Purchaser:_____________________________________________
|
DTC
Account Details:
Name
of DTC Participant:
|
|
________________________________________________
|
(your
broker or custodian bank)
|
|
Address
of DTC Participant:
|
|
________________________________________________
|
(address
of your broker or custodian bank)
|
|
________________________________________________
|
________________________________________________
|
|
DTC
Participant Account Number:
|
|
|
_________________________________________________
|
Client
Account (“
Account Holder
”) number at DTC
Participant:
|
|
_________________________________________________
|
Address
of Account Holder:
|
|
_________________________________________________
|
_________________________________________________
|
_________________________________________________
|
|
|
|
-28-
Exhibit
99.8
December
11, 2007
Amarin
Corporation plc
7
Curzon
Street
London
W1J 5HG
England
Re:
8.0% Convertible Debentures Due 2010
Ladies
and Gentlemen:
We
have
acted as special U.S. counsel to Amarin Corporation plc, a company organized
under the laws of England and Wales (the “Company”), in connection with the
Company’s Registration Statement on Form F-3 (File No. 333-135718), as
supplemented by the Prospectus Supplement dated December 5, 2007 (as so
supplemented, the “Registration Statement”), as filed with the Securities and
Exchange Commission (the “Commission”), with respect to the issuance of the
Company’s 8.0% Convertible Debentures due 2010 (the
“Debentures”). The Debentures are issued under a base indenture,
dated as of December 6, 2007, as supplemented by a supplemental indenture dated
as of December 6, 2007 (together, the “Indenture”), both between the Company and
Wilmington Trust Company, as trustee (the “Trustee”).
In
connection with this opinion, we have examined originals or copies, certified
or
otherwise identified to our satisfaction, of such corporate records, documents,
certificates and instruments as we deemed necessary and appropriate to enable
us
to render the opinions expressed below.
In
our
examination, we have assumed (a) the authenticity of original documents and
the genuineness of all signatures, (b) the conformity to the originals of
all documents submitted to us as copies, and (c) the truth, accuracy and
completeness of the information, representations and warranties contained in
the
records, documents, instruments and certificates we have reviewed.
In
making
our examination of documents (including the Indenture and the Debentures)
executed by all entities (including the Company), we have assumed that such
entities had the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and due execution and delivery by such
entities of such documents and the validity and binding effect
thereof.
Based
on
the foregoing and subject to the qualifications and assumptions set forth
herein, it is our opinion that:
1. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended, and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors’ rights
generally and general principles of equity and except that (a) rights to
indemnification may be limited under applicable law or public policy and (b)
the
enforceability of provisions imposing liquidated damages or penalties upon
the
occurrence of certain events may be limited in certain
circumstances.
2. Assuming
due authentication and delivery thereof by the Trustee in accordance with the
terms of the Indenture, the Debentures constitute a valid and binding obligation
of the Company, enforceable against the Company in accordance with their terms
and entitled to the benefits provided by the Indenture, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
general principles of equity and except that (a) rights to indemnification
may be limited under applicable law or public policy and (b) the enforceability
of provisions imposing liquidated damages or penalties upon the occurrence
of
certain events may be limited in certain circumstances.
We
are
members of the Bar of the State of New York and do not purport to be experts
in,
or to express any statement concerning the laws of, any jurisdictions other
than
the laws of the State of New York and the federal laws of the United States
of
America.
We
hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm under the caption “Legal Matters” in
the Registration Statement. Our consent to such reference does not
constitute a consent under Section 7 of the Securities Act of 1933, as amended,
and in consenting to such reference we have not certified any part of the
Registration Statement and do not otherwise come within the categories of
persons whose consent is required under Section 7 or under the rules and
regulations of the Commission thereunder.
Very
truly
yours,
/s/
Cahill Gordon
& Reindel LLP