SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D/A4 (Amendment No. 4)
Under the Securities Exchange Act of 1934 (Amendment No. 4)*
AMARIN CORPORATION PLC (formerly known as Ethical Holdings plc)
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(Name of Issuer)
Ordinary Shares, 5p par value per share
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(Title of Class of Securities)
297645301
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(CUSIP Number)
William F. Daniel
Elan Corporation, plc
Lincoln House
Lincoln Place
Dublin 2, Ireland
(353) 1-709-4000
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
October 6, 2004
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 297645301
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(1) NAME OF REPORTING PERSONS
Elan Corporation, plc
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
N/A
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions)
(a) [ ]
(b) [ ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS (See Instructions) WC
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(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION Ireland
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Number of (7) SOLE VOTING POWER
Shares -0- (See Item 5)
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Beneficially (8) SHARED VOTING POWER
Owned -0- (See Item 5)
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by Each (9) SOLE DISPOSITIVE POWER
Reporting -0- (See Item 5)
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Person With (10) SHARED DISPOSITIVE POWER
-0- (See Item 5)
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0- (See Item 5)
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(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions) [ ]
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% (See
Item 5)
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(14) TYPE OF REPORTING PERSON (See Instructions) CO
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CUSIP No. 297645301
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(1) NAME OF REPORTING PERSONS Elan International Services, Ltd.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
N/A
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions)
(a) [ ]
(b) [ ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS (See Instructions) WC
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(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda
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Number of (7) SOLE VOTING POWER
Shares -0- (See Item 5)
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Beneficially (8) SHARED VOTING POWER
Owned -0- (See Item 5)
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by Each (9) SOLE DISPOSITIVE POWER
Reporting -0- (See Item 5)
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Person With (10) SHARED DISPOSITIVE POWER
-0- (See Item 5)
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0- (See Item 5)
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(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions) [ ]
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% (See
Item 5)
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(14) TYPE OF REPORTING PERSON (See Instructions) CO
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CUSIP No. 297645301
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(1) NAME OF REPORTING PERSONS Monksland Holdings BV
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
N/A
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions)
(a) [ ]
(b) [ ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS (See Instructions) WC
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(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION Netherlands
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Number of (7) SOLE VOTING POWER
Shares -0- (See Item 5)
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Beneficially (8) SHARED VOTING POWER
Owned -0- (See Item 5)
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by Each (9) SOLE DISPOSITIVE POWER
Reporting -0- (See Item 5)
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Person With (10) SHARED DISPOSITIVE POWER
-0- (See Item 5)
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0- (See Item 5)
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(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions) [ ]
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% (See
Item 5)
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(14) TYPE OF REPORTING PERSON (See Instructions) CO
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CUSIP No. 297645301
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(1) NAME OF REPORTING PERSONS Elan Pharma International Limited
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
N/A
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See
Instructions)
(a) [ ]
(b) [ ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS (See Instructions) WC
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(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION Ireland
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Number of (7) SOLE VOTING POWER
Shares -0- (See Item 5)
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Beneficially (8) SHARED VOTING POWER
Owned -0- (See Item 5)
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by Each (9) SOLE DISPOSITIVE POWER
Reporting -0- (See Item 5)
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Person With (10) SHARED DISPOSITIVE POWER
-0- (See Item 5)
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0- (See Item 5)
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(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions) [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% (See
Item 5)
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(14) TYPE OF REPORTING PERSON (See Instructions) CO
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Item 1. Security and Issuer.
Item 1 of the Schedule 13D is hereby amended and restated in its entirety
as follows:
This Amendment No. 4 is filed by Elan Corporation, plc, an Irish public
limited company ("Elan Corp."), Elan's direct wholly-owned subsidiaries, Elan
International Services, Ltd., a Bermuda exempted company ("EIS"), Monksland
Holdings BV, a Netherlands private company limited by shares ("Monksland") and
Elan Pharma International Limited, an Irish limited company ("EPIL," and,
together with Elan Corp., EIS and Monksland, "Elan"), and relates American
Depositary Shares each representing one Ordinary Share, 5p par value per share
(the "Shares"), of Amarin Corporation plc, formerly known as Ethical Holdings
plc (the "Issuer"), a United Kingdom registered company, whose principal
executive offices are located at Gemini House, Bartholomew's Walk, Ely,
Cambridgeshire, CB7 4EA, United Kingdom. This Amendment No. 4 amends the
Schedule 13D filed with the Securities and Exchange Commission (the
"Commission") on December 17, 1998, as amended by Amendment No. 1 filed with the
Commission on February 4, 1999, Amendment No. 2 filed with the Commission on
December 13, 1999, and Amendment No. 3 filed with the Commission on February 1,
2001 (together, the "Schedule 13D").
Item 2. Identity and Background.
Item 2 of the Schedule 13D is hereby amended and restated in its entirety
as follows:
This Schedule 13D is filed by Elan Corp., EIS, Monksland and EPIL, in
respect of Shares that were beneficially owned by EIS, Monksland and EPIL.
Elan Corp.'s principal place of business is Lincoln House, Lincoln Place,
Dublin 2, Ireland. Elan Corp. is a worldwide biopharmaceutical company. EIS's
principal place of business is 102 St. James Court, Flatts, Smiths, FL 04
Bermuda. EIS is an investment holding company. Monksland's principal place of
business is "Rivierstate", Amsteldijk 166-6, 1079 Amsterdam, The Netherlands.
Monksland is a private limited company incorporated under the laws of the
Netherlands. EPIL's principal place of business is WIL House, Shannon Business
Park, Shannon, County Clare, Ireland. EPIL is an Irish private limited company.
Schedule A to this Schedule 13D sets forth the (a) name, (b) residence or
business address, (c) present principal occupation or employment and the name,
principal business and address of any corporation or other organization in which
such employment is conducted and (d) citizenship or place of organization of
each executive officer, director and controlling person of Elan Corp., EIS,
Monksland and EPIL.
During the last five years, none of Elan Corp., EIS, Monksland, EPIL or any
person identified on Schedule A to this Schedule 13D: (i) has been convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors); or
(ii) was a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction, as a result of which proceeding it was or is subject to
a judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, United States federal or state securities
laws, or finding any violation with respect to such laws.
Item 5. Interest in Securities of Issuer.
Item 5 of the Schedule 13D is hereby amended and restated in its entirety
as follows:
(a) None.
(b) None.
(c) On October 6, 2004, EIS, Monksland and EPIL sold securities to Amarin
Investment Holding Ltd. in a private transaction pursuant to a Securities
Purchase Agreement among EIS, Monksland and EPIL and Amarin Investment Holding
Ltd. and Thomas G. Lynch, dated as of September 30, 2004 for $6,500,000 as
listed below:
(i) EIS sold 4,529,819 Shares;
(ii) Monksland sold 124,000 Shares; and
(iii) EPIL sold (i) a Warrant, dated February 25, 2004, to subscribe
for 500,000 Shares, at an exercise price of $1.90 per share (the
"Warrant"), and (ii) $5,000,000 in aggregate principal amount of
Secured Loan Notes due 2009 of the Issuer.
(d) None.
(e) As of October 6, 2004, the Reporting Persons ceased to be the
beneficial owners of more than five percent of the Shares.
Item 7. Material to Be Filed as Exhibits.
Item 7 of the Schedule 13D is hereby amended to add the following exhibit:
1. Joint Filing Agreement dated November 2, 2004 among Elan Corp., EIS,
Monksland and EPIL.(1)
2. Securities Purchase Agreement among EIS, Monksland and EPIL and Amarin
Investment Holding Ltd. and Thomas G. Lynch, dated as of September 30, 2004.(1)
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1 Filed herewith.
SIGNATURES
After reasonable inquiry and to the best of its knowledge and belief, each
of the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Date: November 2, 2004
ELAN CORPORATION, PLC
By: /s/ William Daniel
----------------------------------------
Name: William Daniel
Title: EVP and Company Secretary
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ Kevin Insley
-------------------------------------------
Name: Kevin Insley
Title: President and Chief Financial Officer
MONKSLAND HOLDINGS BV
By: /s/ William Daniel
-------------------------------------
Name: William Daniel
Title: EVP and Company Secretary
ELAN PHARMA INTERNATIONAL LIMITED
By: /s/ William Daniel
-------------------------------------
Name: William Daniel
Title: EVP and Company Secretary
SCHEDULE A
The (a) name, (b) business address, (c) present principal occupation or
employment and the name, principal business and address of any corporation or
other organization in which such employment is conducted and (d) citizenship of
each executive officer and director (other than Messrs. Armen, Boushel, Crowley,
Gillespie, Groom, McGowan, McIntyre, McLaughlin, Selkoe, Thornburgh and Tully
and Ms. Gray) of Elan Corp. are set forth below:
1. (a) G. Kelly Martin, (b) 875 3rd Avenue, New York, New York 10012, (c)
President and Chief Executive Officer, and (d) United States.
2. (a) Shane Cooke, (b) Lincoln House, Lincoln Place, Dublin 2, Ireland, (c)
Executive Vice President and Chief Financial Officer, and (d) Ireland.
3. (a) William F. Daniel (b) Lincoln House, Lincoln Place, Dublin 2, Ireland,
(c) Executive Vice President and Company Secretary, and (d) Ireland.
4. (a) Jean Duvall, (b) 800 Gateway Blvd., South San Francisco, CA 94080, (c)
Executive Vice President and General Counsel, and (d) United States.
The (a) name, (b) business address, (c) present principal occupation or
employment and the name, principal business and address of any corporation or
other organization in which such employment is conducted and (d) citizenship of
each director (other than Messrs. Martin and Daniel) of Elan Corp. are set forth
below:
1. (a) Garo A. Armen, Ph.D., (b) 630 Fifth Avenue, Suite 2167, New York, New
York 10111, (c) Chairman of the Board and Chief Executive Officer of
Antigenics, Inc., and (d) United States.
2. (a) Brendan E. Boushel, (b) 9 Upper Mount Street, Dublin 2, Ireland, (c)
Retired, and (d) Ireland.
3. (a) Laurence G. Crowley, (b) c/o Elan Corporation, plc, Lincoln House,
Lincoln Place, Dublin 2, Ireland, (c) Governor (Chairman) Bank of Ireland,
and (d) Ireland.
4. (a) Alan R. Gillespie, Ph.D., (b) c/o Elan Corporation, plc, Lincoln House,
Lincoln Place, Dublin 2, Ireland, (c) Chairman, Ulster Bank Limited, and
(d) United Kingdom.
5. (a) Ann Maynard Gray, (b) c/o Elan Corporation, plc, Lincoln House, Lincoln
Place, Dublin 2, Ireland, (c) Retired, and (d) United Kingdom.
6. (a) John Groom, (b) c/o Elan Corporation, plc, Lincoln House, Lincoln
Place, Dublin 2, Ireland, (c) Retired, and (d) United Kingdom.
7. (a) Kieran McGowan, (b) c/o Elan Corporation, plc, Lincoln House, Lincoln
Place Dublin 2, Ireland, (c) Retired, and (d) Ireland.
8. (a) Kevin McIntyre, M.D., (b) c/o Elan Corporation, plc, Lincoln House,
Lincoln Place, Dublin 2, Ireland, (c) Associate Clinical Professor of
Medicine at Harvard Medical School, and (d) United States.
9. (a) Kyran McLaughlin, (b) Davy House, 49 Dawson Street, Dublin 2, Ireland,
(c) Head of Equities and Corporate Finance, Davy Stockbrokers, and (d)
Ireland.
10. (a) Dennis J. Selkoe, M.D., (b) c/o Elan Corporation, plc, Lincoln House,
Lincoln Place, Dublin 2, Ireland, (c) Professor of Neurology and
Neuroscience at Harvard Medical School, and (d) United States.
11. (a) Richard L. Thornburgh, (b) c/o Elan Corporation, plc, Lincoln House,
Lincoln Place, Dublin 2, Ireland, (c) Counsel to the law firm of
Kirkpatrick & Lockhart LLP, and (d) United States.
12. (a) Daniel P. Tully, (b) c/o Elan Corporation, plc, Lincoln House, Lincoln
Place, Dublin 2, Ireland, (c) Retired, and (d) United States.
The (a) name, (b) business address, (c) present principal occupation or
employment and the name, principal business and address of any corporation or
other organization in which such employment is conducted and (d) citizenship of
each executive officer and director of EIS are set forth below:
1. (a) Kevin Insley, (b) c/o 102 St. James Court, Flatts, Smiths FL 04,
Bermuda, (c) Director, President and Chief Financial Officer, and (d)
United Kingdom.
2. (a) Debra Moore Buryj, (b) c/o 102 St. James Court, Flatts, Smiths FL 04,
Bermuda, (c) Director and Vice President and, (d) United States.
3. (a) David J. Doyle, (b) c/o Clarendon House, 2 Church Street, Hamilton HM
11, Bermuda, (c) Director of EIS, and principal occupation is lawyer, law
firm of Conyers, Dill & Pearman, Clarendon House, 2 Church Street, Hamilton
HM 11, Bermuda, and (d) Bermuda.
The (a) name, (b) business address, (c) present principal occupation or
employment and the name, principal business and address of any corporation or
other organization in which such employment is conducted and (d) citizenship of
each executive officer and director of Monksland are set forth below:
1. (a) William F. Daniel (b) Lincoln House, Lincoln Place, Dublin 2, Ireland,
(c) Director and (d) Ireland.
2. (a) Wim A.M. Kok (b) c/o Amaco (Netherlands) B.V., "Rivierstate",
Amsteldijk 166-6, 1079 Amsterdam, The Netherlands, (c) Director and (d) The
Netherlands.
3. (a) Pieter Bosse (b) c/o Amaco (Netherlands) B.V., "Rivierstate",
Amsteldijk 166-6, 1079 Amsterdam, The Netherlands, (c) Director and (d) The
Netherlands.
4. (a) Amaco (Netherlands) B.V., (b) "Rivierstate", Amsteldijk 166-6, 1079
Amsterdam, The Netherlands, (c) Director and (d) The Netherlands.
The (a) name, (b) business address, (c) present principal occupation or
employment and the name, principal business and address of any corporation or
other organization in which such employment is conducted and (d) citizenship of
each executive officer and director of EPIL are set forth below:
1. William F. Daniel (b) Lincoln House, Lincoln Place, Dublin 2, Ireland, (c)
Director and (d)
Ireland
2. (a) Shane Cooke, (b) Lincoln House, Lincoln Place, Dublin 2, Ireland, (c)
Director and (d) Ireland.
3. (a) Paul Breen, (b) Monksland Industrial Estate, Athlone, Ireland, (c)
Director and (d) Ireland.
EXHIBIT INDEX
1. Joint Filing Agreement dated November 2, 2004 among Elan Corp., EIS,
Monksland and EPIL.(1)
2. Securities Purchase Agreement among EIS, Monksland and EPIL and Amarin
Investment Holding Ltd. and Thomas G. Lynch, dated as of September 30,
2004.
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1 Filed herewith.
Exhibit 1
JOINT FILING AGREEMENT
The undersigned hereby agree to make joint filings of Schedule 13D with the
U.S. Securities and Exchange Commission with respect to their beneficial
ownership of the Ordinary Shares of Amarin Corporation plc (formerly known as
Ethical Holdings plc), including all amendments thereto.
Date: November 2, 2004
ELAN CORPORATION, PLC
By: /s/ William Daniel
--------------------------------------
Name: William Daniel
Title: EVP and Company Secretary
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ Kevin Insley
--------------------------------------
Name: Kevin Insley
Title: President and Chief Financial Officer
MONKSLAND HOLDINGS BV
By: /s/ William Daniel
--------------------------------------
Name: William Daniel
Title: EVP and Company Secretary
ELAN PHARMA INTERNATIONAL LIMITED
By: /s/ William Daniel
-----------------------------------------
Name: William Daniel
Title: EVP and Company Secretary
Exhibit 2
SECURITIES PURCHASE AGREEMENT
among
Elan International Services, Ltd.,
Monksland Holdings BV, and
Elan Pharma International Limited,
as Sellers,
and
Amarin Investment Holding Ltd.,
as Buyer,
and
Thomas G. Lynch
Dated as of September 30, 2004
Table of Contents
Page
1. DEFINITIONS............................................................1
2. SALE AND TRANSFER OF SECURITIES; CLOSING...............................4
2.1 Securities..................................................4
2.2 Purchase Price..............................................5
2.3 Closing.....................................................5
2.4 Closing Obligations.........................................5
2.5 Deliver of ADSs.............................................6
3. REPRESENTATIONS AND WARRANTIES OF SELLERS..............................6
3.1 Authority; No Conflict......................................6
3.2 Legal Proceedings...........................................7
3.3 Brokers or Finders..........................................7
3.4 Encumbrances................................................7
3.5 Information.................................................7
4. REPRESENTATIONS AND WARRANTIES OF BUYERS AND lYNCH.....................7
4.1 Ownership; Related Party....................................8
4.2 Incorporation; Authority; No Conflict.......................8
4.3 Financial Resources.........................................8
4.4 Purchase for Own Account....................................8
4.5 Investment Experience.......................................9
4.6 U.S. Person.................................................9
4.7 Review of Agreement; Reliance...............................9
4.8 Legal Proceedings...........................................9
4.9 Brokers or Finders..........................................9
4.10 Information.................................................9
5. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS TO CLOSE..................10
5.1 Accuracy of Representations................................10
5.2 Sellers' Performance.......................................10
5.3 Additional Documents.......................................10
5.4 No Proceedings.............................................10
5.5 No Prohibition.............................................10
6. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE..................10
6.1 Accuracy of Representations................................11
6.2 Buyer's Performance........................................11
6.3 Additional Documents.......................................11
6.4 No Proceedings.............................................11
6.5 No Prohibition.............................................11
7. TERMINATION...........................................................11
7.1 Termination Events.........................................11
7.2 Effect of Termination......................................12
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Page
8. INDEMNIFICATION; REMEDIES.............................................12
8.1 Survival; Right to Indemnification Not Affected by
Knowledge................................................12
8.2 Indemnification and Payment of Damages by Sellers..........12
8.3 Indemnification and Payment of Damages by Buyer and Lynch..13
8.4 Procedure for Indemnification -- Third Party Claims........14
8.5 Procedure for Indemnification -- Other Claims..............15
9. GENERAL PROVISIONS....................................................15
9.1 Expenses...................................................15
9.2 Public Announcements.......................................15
9.3 Notices....................................................15
9.4 Further Assurances.........................................16
9.5 Waiver.....................................................16
9.6 Entire Agreement and Modification..........................16
9.7 Assignments, Successors, and No Third-Party Rights.........17
9.8 Severability...............................................17
9.9 Section Headings; Construction.............................17
9.10 Time of Essence............................................17
9.11 Governing Law and Jurisdiction.............................17
9.12 Regulation S...............................................18
9.13 Counterparts...............................................18
EXHIBITS
Exhibit A Form of Opinion of Amarin Counsel
Exhibit B Form of Board Minutes of Amarin
Exhibit C Form of Opinion of Buyer Counsel
Exhibit D Form of Board Committee Minutes of Amarin
-ii-
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("Agreement") is made as of September
30, 2004, by and among Thomas G. Lynch, an individual ("Lynch"), Amarin
Investment Holding Ltd., a Bermuda exempted company limited by shares ("Buyer"),
and Elan International Services, Ltd., a Bermuda exempted company limited by
shares ("EIS"), Monksland Holdings BV, a Netherlands private company limited by
shares ("Monksland"), and Elan Pharma International Limited, an Irish limited
company ("EPIL" and, together with EIS and Monksland, "Sellers").
RECITALS
WHEREAS, EIS is the registered owner of 4,529,819 American Depositary
Shares (the "EIS ADSs"), each representing one ordinary share of 5 pence in the
capital of Amarin Corporation PLC ("Amarin");
WHEREAS, Monksland is the registered owner of 124,000 American Depositary
Shares (the "Monksland ADSs" and, together with the EIS ADSs, the "ADSs"), each
representing one ordinary share of 5 pence in the capital of Amarin;
WHEREAS, EPIL is the registered owner of (a) a Warrant, dated February 25,
2004, to subscribe for 500,000 ordinary shares of 5 pence each in the capital of
Amarin, at an exercise price of US$1.90 per share (the "Warrant"), and (b)
$5,000,000 in aggregate principal amount of Secured Loan Notes due 2009 of
Amarin, issued pursuant to that certain Instrument, dated February 25, 2004 (the
"Notes" and, together with the ADSs and the Warrant, the "Securities"), which
Notes are secured pursuant to that certain Debenture, dated as of August 4,
2003, by Amarin in favour of Elan Corporation, plc, as trustee ("Elan"), as
amended by that certain Debenture Amendment Agreement, dated as of December 23,
2003, between Amarin and Elan, as amended by that certain Debenture Amendment
Agreement No. 2, dated as of February 25, 2004, between Amarin and Elan (the
"Debenture"); and
WHEREAS, Sellers desire to sell, and Buyer desires to purchase, all of the
Securities for the consideration and on the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"ADSs" -- as defined in the Recitals of this Agreement.
"Agreement" -- as defined in the first paragraph of this Agreement.
"Amarin" -- as defined in the Recitals of this Agreement.
-2-
"Assignment and Assumption Agreement" -- as defined in Section 2.4(a)(iv).
"Breach" -- a "Breach" of a representation, warranty, obligation, or other
provision of this Agreement or any instrument delivered pursuant to this
Agreement will be deemed to have occurred if there is or has been (a) any
inaccuracy in or breach of, or any failure to perform or comply with, such
representation, warranty, obligation, or other provision, or (b) any claim (by
any Person) or other occurrence or circumstance that is or was inconsistent with
such representation, warranty, obligation, or other provision, and the term
"Breach" means any such inaccuracy, breach, failure, claim, occurrence, or
circumstance.
"Buyer" -- as defined in the first paragraph of this Agreement.
"Buyer Indemnified Persons" -- as defined in Section 8.2.
"Closing" -- as defined in Section 2.3.
"Closing Date" -- the date and time as of which the Closing actually takes
place.
"Consent" -- any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"Contract" -- any agreement, contract, obligation, promise, or undertaking
(whether written or oral and whether express or implied) that is legally
binding.
"Damages" -- as defined in Section 8.2.
"Debenture" -- as defined in the Recitals of this Agreement.
"Dispute" -- as defined in Section 9.11(b).
"Dispute Proceedings" -- as defined in Section 9.11(d).
"EIS" -- as defined in the first paragraph of this Agreement.
"EIS ADSs" -- as defined in the Recitals of this Agreement.
"Elan" -- as defined in the Recitals of this Agreement.
"Encumbrance" -- any charge, claim, community property interest, condition,
equitable interest, lien, option, pledge, security interest, right of first
refusal, or restriction of any kind, including any restriction on use, voting,
transfer, receipt of income, or exercise of any other attribute of ownership.
"EPIL" -- as defined in the first paragraph of this Agreement.
"Governmental Authorization" -- any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
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"Governmental Body" -- any:
(a) nation, state, county, city, town, village, district, or other
jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity
and any court or other tribunal);
(d) multi-national organization or body; or
(e) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority
or power of any nature.
"Indemnified Persons" -- as defined in Section 8.3.
"Knowledge" -- an individual will be deemed to have "Knowledge" of a
particular fact or other matter if:
(a) such individual is actually aware of such fact or other matter; or
(b) a prudent individual could be expected to discover or otherwise
become aware of such fact or other matter in the course of conducting a
reasonably comprehensive investigation concerning the existence of such
fact or other matter.
A Person (other than an individual) will be deemed to have "Knowledge" of a
particular fact or other matter if any individual who is serving as a director
or officer of such Person (or in any similar capacity) has Knowledge of such
fact or other matter.
"Legal Requirement" -- any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"Lynch" -- as defined in the first paragraph of this Agreement.
"Monksland" -- as defined in the first paragraph of this Agreement.
"Monksland ADSs" -- as defined in the Recitals of this Agreement.
"Notes" -- as defined in the Recitals of this Agreement.
"Order" -- any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
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"Organizational Documents" -- (a) the articles or certificate of
incorporation, the bylaws or any charter or similar document adopted or filed in
connection with the creation, formation, or organization of a Person; and (b)
any amendment to any of the foregoing.
"Person" -- any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"Proceeding" -- any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"Purchase Price" -- as defined in Section 2.2.
"Regulation S" -- as defined in Section 9.12.
"Representation" -- as defined in Section 9.6.
"Representative" -- with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"Securities" -- as defined in the Recitals of this Agreement.
"Securities Act" -- as defined in Section 3.4.
"Seller Indemnified Persons" -- as defined in Section 8.3.
"Sellers" -- as defined in the first paragraph of this Agreement.
"Threatened" -- a claim, Proceeding, dispute, action, or other matter will
be deemed to have been "Threatened" if any demand or statement has been made
(orally or in writing) or any notice has been given (orally or in writing), or
if any other event has occurred or any other circumstances exist, that would
lead a prudent Person to conclude that such a claim, Proceeding, dispute,
action, or other matter is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
"Warrant" -- as defined in the Recitals of this Agreement.
2. SALE AND TRANSFER OF SECURITIES; CLOSING
2.1 SECURITIES
Subject to the terms and conditions of this Agreement, at the Closing,
Sellers will sell and transfer, with full title guarantee, the Securities to
Buyer, and Buyer will purchase the Securities from Sellers.
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2.2 PURCHASE PRICE
The purchase price (the "Purchase Price") for the Securities will be
US$6,500,000.
2.3 CLOSING
The purchase and sale (the "Closing") provided for in this Agreement will
take place at the offices of Clifford Chance Limited Liability Partnership, 10
Upper Bank Street, London E14 5JJ, at 10:00 a.m. (local time) on October 6, 2004
or at such other time and place as the parties may agree. Subject to the
provisions of Section 7, failure to consummate the purchase and sale provided
for in this Agreement on the date and time and at the place determined pursuant
to this Section 2.3 will not result in the termination of this Agreement and
will not relieve any party of any obligation under this Agreement.
2.4 CLOSING OBLIGATIONS
At the Closing:
(a) Sellers will deliver to Buyer:
(i) certificates representing the ADSs, duly endorsed (or accompanied
by duly executed stock powers) for transfer to Buyer; provided, however,
that if Sellers are, after using all commercially reasonable efforts, able
to deliver to Buyer at the Closing only 4,603,819 ADSs, Seller's closing
obligation set forth in this clause (i) will be deemed to be satisfied;
(ii) a duly executed transfer form in respect of the Notes
(accompanied by the relevant certificate(s));
(iii) a duly executed transfer form in respect of the Warrant
(accompanied by the relevant certificate(s)); and
(iv) a deed of amendment, assignment and assumption (the "Assignment
and Assumption Agreement"), duly executed by Elan, EPIL, EIS, Elan
Pharmaceuticals, Inc. and Monksland, pursuant to which Elan assigns the
benefit of the Debenture to Buyer and Buyer assumes Elan's obligations
under the Debenture.
(b) Buyer and Lynch will deliver or cause to be delivered to or as directed
by Sellers:
(i) the Purchase Price by wire transfer in the names and to the
accounts specified by Sellers;
(ii) the opinion of Nicholson Graham & Jones, counsel for Amarin, in
the form attached hereto as Exhibit A;
(iii) a certified copy of the minutes of the board of directors of
Amarin, in the form attached hereto as Exhibit B;
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(iv) the opinion of Cox Hallett Wilkinson, counsel for Buyer, in the
form attached hereto as Exhibit C;
(v) the Assignment and Assumption Agreement duly executed by Buyer and
Amarin; and
(vi) a certified copy of the minutes of a committee of the board of
directors of Amarin in the form attached hereto as Exhibit D.
2.5 DELIVER OF ADSS
Sellers shall use all commercially reasonable efforts to take, or cause to
be taken, all actions and do, or cause to be done, all things necessary, proper
or advisable under this Agreement and applicable laws and regulations to deliver
to Buyer at the Closing certificates representing the ADSs, duly endorsed (or
accompanied by duly executed stock powers). Notwithstanding the foregoing, if
Sellers satisfy their closing obligation set forth in Section 2.4(a)(i) but, for
any reason, are unable to deliver to Buyer at the Closing certificates
representing all ADSs, Sellers will use all commercially reasonable efforts to
take, or cause to be taken, all actions and do, or cause to be done, all things
necessary, proper or advisable under this Agreement and applicable laws and
regulations to deliver to Buyer as soon as practicable after the Closing Date
(but in no event later than October 20, 2004) certificates representing any ADSs
(duly endorsed or accompanied by duly executed stock powers) required to be
delivered to Buyer such that Buyer has, after giving effect to such delivery,
received delivery of certificates representing all ADSs.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers jointly and severally represent and warrant to Buyer as follows:
3.1 AUTHORITY; NO CONFLICT
(a) This Agreement constitutes the legal, valid, and binding obligation of
Sellers, enforceable against Sellers in accordance with its terms. Sellers have
the absolute and unrestricted right, power and authority to execute and deliver
this Agreement and to perform their obligations under this Agreement.
(b) Neither the execution and delivery of this Agreement by Sellers nor the
consummation or performance by Sellers of any of the transactions contemplated
by this Agreement will, directly or indirectly (with or without notice or lapse
of time):
(i) contravene, conflict with, or result in a violation of (A) any
provision of Sellers' Organizational Documents, or (B) any resolution
adopted by the board of directors or the shareholders of Sellers;
(ii) subject to the accuracy of Buyer's and Lynch's representations
and warranties set forth in Section 4, contravene, conflict with, or result
in a violation of, or give any Governmental Body or other Person the right
to challenge any of the transactions contemplated by this Agreement or to
exercise any remedy or obtain any relief under, any Legal Requirement or
any Order to which any Seller, or any of the assets owned or used by any
Seller, may be subject; or
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(iii) contravene, conflict with, or result in a violation or breach of
any provision of, any Contract under which any Seller is subject to any
obligation or by which any Seller or any of their respective assets is
bound.
Subject to the accuracy of Buyer's and Lynch's representations and warranties
set forth in Section 4 and except for any notice that may be required to be
given to, or any Consent that may be required to be obtained from, Amarin, no
Seller is or will be required to give any notice to or obtain any Consent from
any Person in connection with the execution and delivery of this Agreement or
the consummation or performance of any of the transactions contemplated by this
Agreement.
3.2 LEGAL PROCEEDINGS
There is no pending Proceeding against any Seller that challenges, or that
may have the effect of preventing, delaying, making illegal, or otherwise
interfering with, any of the transactions contemplated by this Agreement.
To the Knowledge of Sellers, (1) no such Proceeding has been Threatened,
and (2) no event has occurred or circumstance exists that may give rise to or
serve as a basis for the commencement of any such Proceeding.
3.3 BROKERS OR FINDERS
Sellers and their officers and agents have incurred no obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payments in connection with this Agreement.
3.4 ENCUMBRANCES
Upon delivery and payment for the Securities in accordance with this
Agreement, Buyer will acquire the Securities free and clear of all liens,
charges, encumbrances or restrictions (other than those created by Buyer or
imposed by Amarin and restrictions on transfer imposed by the Securities Act of
1933, as amended (the "Securities Act"), and applicable U.S. state securities or
"Blue Sky" laws).
3.5 INFORMATION
Sellers have received from Buyer all information requested by Sellers in
connection with the transactions contemplated by this Agreement; provided that
the foregoing shall not limit or modify the representations or warranties of
Buyer and Lynch set forth in Section 4 or the right of Sellers to rely thereon.
4. REPRESENTATIONS AND WARRANTIES OF BUYERS AND lYNCH
Buyer and Lynch jointly and severally represent and warrant to Sellers as
follows:
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4.1 OWNERSHIP; RELATED PARTY
Lynch is the sole legal and beneficial owner of the entire issued share
capital of Buyer. Neither Lynch nor any director or officer of Buyer is a
related party of Elan. For purposes of this Section 4.1, "related party" shall
have the meaning set forth in Chapter 11 of the UKLA Listing Rules.
4.2 INCORPORATION; AUTHORITY; NO CONFLICT
(a) Buyer is a Bermuda exempted company limited by shares and has been in
continuous existence since its organization.
(b) This Agreement constitutes the legal, valid, and binding obligation of
Buyer and Lynch, enforceable against Buyer and Lynch in accordance with its
terms. Buyer and Lynch have the absolute and unrestricted right, power,
authority and, in the case of Lynch, capacity to execute and deliver this
Agreement and to perform their obligations under this Agreement.
(c) Neither the execution and delivery of this Agreement by Buyer and Lynch
nor the consummation or performance by Buyer and Lynch of any of the
transactions contemplated by this Agreement will, directly or indirectly (with
or without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of (A) any
provisions of Buyer's Organizational Documents, or (B) any resolution
adopted by the board of directors or shareholders of Buyer;
(ii) contravene, conflict with, or result in a violation of, or give
any Governmental Body or other Person the right to challenge any of the
transactions contemplated by this Agreement or to exercise any remedy or
obtain any relief under, any Legal Requirement or any Order to which Buyer
or Lynch may be subject; or
(iii) contravene, conflict with, or result in a violation or breach of
any provision of, any Contract under which Buyer or Lynch is subject to any
obligation or by which Buyer or Lynch is bound.
Neither Buyer nor Lynch is or will be required to give any notice to or obtain
any Consent from any Person in connection with the execution and delivery of
this Agreement or the consummation or performance of any of the transactions
contemplated by this Agreement.
4.3 FINANCIAL RESOURCES
Buyer has, and will have at the Closing, sufficient resources in order to
consummate the transactions contemplated by this Agreement and fulfill its
obligations under this Agreement, including, without limitation, the payment to
the Sellers of the Purchase Price at the Closing.
4.4 PURCHASE FOR OWN ACCOUNT
Buyer (a) will acquire the Securities for its own account, not as a
nominee, agent or trustee, and not with a view to the resale or distribution of
any part thereof, and has no intention of selling, granting any participation or
interest in, or otherwise distributing the Securities or any part thereof and
(b) is not a
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party to any Contract with any Person to sell, transfer or grant any
participation or interest therein to any Person with respect to the Securities
or any part thereof.
4.5 INVESTMENT EXPERIENCE
Each of Buyer and Lynch is an investor in securities of both development
stage and developed companies and acknowledges that it or he is able to fend for
itself or himself, can bear the economic risk of an investment in the
Securities, and has such knowledge and experience in financial or business
matters that it or he is capable of evaluating the merits and risks of an
investment in the Securities.
4.6 U.S. PERSON
Buyer is not a U.S. Person (as defined in Rule 902 of the Securities Act),
nor is it purchasing the Securities for the account of a U.S. Person.
4.7 REVIEW OF AGREEMENT; RELIANCE
Buyer and Lynch acknowledge that they have had an opportunity to review
with their own legal counsel this Agreement, the Securities, and all documents
or instruments pursuant to which the Securities were issued to Sellers. Buyer
and Lynch are relying solely on their own legal counsel and not on any
statements or representations of Sellers (other than the representations and
warranties set forth in Section 3 of this Agreement) or any of Sellers' agents
for legal or financial advice with respect to the transactions contemplated by
this Agreement, including the purchase of the Securities.
4.8 LEGAL PROCEEDINGS
There is no pending Proceeding against Buyer or Lynch that challenges, or
that may have the effect of preventing, delaying, making illegal, or otherwise
interfering with, any of the transactions contemplated by this Agreement.
To the Knowledge of Buyer and Lynch (1) no such Proceeding has been
Threatened, and (2) no event has occurred or circumstance exists that may give
rise to or serve as a basis for the commencement of any such Proceeding.
4.9 BROKERS OR FINDERS
Buyer, Lynch and their respective agents have incurred no obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payments in connection with this Agreement.
4.10 INFORMATION
Neither Buyer nor Lynch is in possession of any information (whether
amounting to unpublished price sensitive or material non-public information or
otherwise) concerning Amarin or its business or prospects that would preclude
him or it from dealing in shares of Amarin (whether pursuant to Part V of the
Criminal Justice Act 1933, Part VIII of the Financial Services and Markets Act
2000, the U.S. federal securities laws, the Nasdaq Marketplace Rules or
otherwise).
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5. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS TO CLOSE
Buyer's obligations to purchase the Securities and to take the other
actions required to be taken by Buyer at the Closing are subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Buyer, in whole or in part):
5.1 ACCURACY OF REPRESENTATIONS
All of Sellers' representations and warranties in this Agreement
(considered collectively), and each of these representations and warranties
(considered individually), must have been accurate in all material respects as
of the date of this Agreement, and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.
5.2 SELLERS' PERFORMANCE
Each document or instrument required to be delivered by Sellers pursuant to
Section 2.4(a) shall have been delivered.
5.3 ADDITIONAL DOCUMENTS
Sellers shall have delivered to Buyer such other documents as Buyer may
reasonably request for the purpose of (a) evidencing the accuracy of any of
Sellers' representations and warranties, and (b) otherwise facilitating the
consummation or performance of the transactions contemplated by this Agreement.
5.4 NO PROCEEDINGS
Since the date of this Agreement, there must not have been commenced or
Threatened against Buyer or Lynch, or against any Person affiliated with Buyer
or Lynch, any Proceeding (a) involving any challenge to, or seeking damages or
other relief in connection with, any of the transactions contemplated by this
Agreement, or (b) that may have the effect of preventing, delaying, making
illegal, or otherwise interfering with any of the transactions contemplated by
this Agreement.
5.5 NO PROHIBITION
Neither the consummation nor the performance of any of the transactions
contemplated by this Agreement will, directly or indirectly (with or without
notice or lapse of time), materially contravene, or conflict with, or result in
a material violation of, or cause Buyer or Lynch or any Person affiliated with
Buyer or Lynch to suffer any material adverse consequence under, (a) any
applicable Legal Requirement or Order, or (b) any Legal Requirement or Order
that has been published, introduced, or otherwise formally proposed by or before
any Governmental Body.
6. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE
Sellers' obligations to sell the Securities and to take the other actions
required to be taken by Sellers at the Closing are subject to the satisfaction,
at or prior to the Closing, of each of the following conditions (any of which
may be waived by Sellers, in whole or in part):
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6.1 ACCURACY OF REPRESENTATIONS
All of Buyer's and Lynch's representations and warranties in this Agreement
(considered collectively), and each of these representations and warranties
(considered individually), must have been accurate in all material respects as
of the date of this Agreement and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.
6.2 BUYER'S PERFORMANCE
Each document or instrument required to be delivered by Buyer and Lynch
pursuant to Section 2.4(b) shall have been delivered and Buyer shall have
delivered the Purchase Price to Sellers pursuant to Section 2.4(b)(i).
6.3 ADDITIONAL DOCUMENTS
Buyer and Lynch shall have delivered or caused to be delivered to Sellers
such other documents as Sellers may reasonably request for the purpose of (a)
evidencing the accuracy of any representation or warranty of Buyer and Lynch, or
(b) otherwise facilitating the consummation of any of the transactions
contemplated by this Agreement.
6.4 NO PROCEEDINGS Since the date of this Agreement, there must not have
been commenced or Threatened against any Seller, or against any Person
affiliated with any Seller, any Proceeding (a) involving any challenge to, or
seeking any damages or other relief in connection with, any of the transactions
contemplated by this Agreement, or (b) that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with any of the transactions
contemplated by this Agreement.
6.5 NO PROHIBITION
Neither the consummation nor the performance of any of the transactions
contemplated by this Agreement will, directly or indirectly (with or without
notice or lapse of time), materially contravene, or conflict with, or result in
a material violation of, or cause any Seller or any Person affiliated with any
Seller to suffer any material adverse consequences under, (a) an y applicable
Legal Requirement or Order, or (b) any Legal Requirement or Order that has been
published, introduced, or otherwise formally proposed by or before any
Governmental Body.
7. TERMINATION
7.1 TERMINATION EVENTS
This Agreement may, by written notice given prior to or at the Closing, be
terminated:
(a) by Buyer or Sellers if a material Breach of any provision of this
Agreement has been committed by the other party and such Breach has not
been waived;
(b) (i) by Buyer if any of the conditions in Section 5 has not been
satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through
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the failure of Buyer or Lynch to comply with its obligations under this
Agreement) and Buyer has not waived such condition on or before the Closing
Date; or (ii) by Sellers, if any of the conditions in Section 6 has not
been satisfied as of the Closing Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of
Sellers to comply with their obligations under this Agreement) and Sellers
have not waived such condition on or before the Closing Date;
(c) by mutual consent of Buyer and Sellers; or
(d) by either Buyer or Sellers if the Closing has not occurred (other
than through the failure of any party seeking to terminate this Agreement
to comply fully with its obligations under this Agreement) on or before
October 6, 2004, or such later date as the parties may agree upon.
7.2 EFFECT OF TERMINATION
Each party's right of termination under Section 7.1 is in addition to any
other rights it may have under this Agreement or otherwise, and the exercise of
a right of termination will not be an election of remedies. If this Agreement is
terminated pursuant to Section 7.1, all further obligations of the parties under
this Agreement will terminate, except that the obligations in Section 9.1 will
survive; provided, however, that if this Agreement is terminated by a party
because of the Breach of this Agreement by the other party or because one or
more of the conditions to the terminating party's obligations under this
Agreement is not satisfied as a result of the other party's failure to comply
with its obligations under this Agreement, the terminating party's right to
pursue all legal remedies will survive such termination unimpaired.
8. INDEMNIFICATION; REMEDIES
8.1 SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE
All representations, warranties, and obligations in this Agreement and any
other certificate or document delivered pursuant to this Agreement will survive
the Closing. The right to indemnification, payment of Damages or other remedy
based on such representations, warranties, covenants, and obligations will not
be affected by any investigation conducted with respect to, or any Knowledge
acquired (or capable of being acquired) at any time, whether before or after the
execution and delivery of this Agreement or the Closing Date, with respect to
the accuracy or inaccuracy of or compliance with, any such representation,
warranty, or obligation. The waiver of any condition based on the accuracy of
any representation or warranty, or on the performance of or compliance with any
covenant or obligation, will not affect the right to indemnification, payment of
Damages, or other remedy based on such representations, warranties, and
obligations.
8.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLERS
Sellers, jointly and severally, will indemnify and hold harmless Buyer and
its Representatives, shareholders, controlling persons, and affiliates
(collectively, the "Buyer Indemnified Persons") for, and will pay to the Buyer
Indemnified Persons the amount of, any loss, liability, claim, damage (including
incidental and consequential damages) or expense (including costs of
investigation and defense and
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reasonable attorneys' fees), whether or not involving a third-party claim
(collectively, "Damages"), arising, directly or indirectly, from or in
connection with:
(a) any Breach of any representation or warranty made by Sellers in
this Agreement or any other certificate or document delivered by Sellers
pursuant to this Agreement;
(b) any Breach of any representation or warranty made by Sellers in
this Agreement as if such representation or warranty were made on and as of
the Closing Date;
(c) any Breach by Sellers of any obligation of Sellers in this
Agreement; or
(d) any claim by any Person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by such Person with any Seller (or any Person
acting on its behalf) in connection with any of the transactions
contemplated by this Agreement.
The remedies provided in this Section 8.2 will not be exclusive of or limit
any other remedies that may be available to Buyer or the other Buyer Indemnified
Persons.
8.3 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER AND LYNCH
Buyer and Lynch, jointly and severally, will indemnify and hold harmless
Sellers and their respective Representatives, shareholders, controlling persons
and affiliates (collectively, the "Seller Indemnified Persons" and, together
with the Buyer Indemnified Persons, the "Indemnified Persons") for, and will pay
to Sellers the amount of any Damages arising, directly or indirectly, from or in
connection with:
(a) any Breach of any representation or warranty made by Buyer or
Lynch in this Agreement or any other certificate or document delivered by
Buyer or Lynch pursuant to this Agreement;
(b) any Breach of any representation or warranty made by Buyer or
Lynch in this Agreement as if such representation or warranty were made on
and as of the Closing Date;
(c) any Breach by Buyer or Lynch of any obligation of Buyer or Lynch
in this Agreement; or
(d) any claim by any Person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by such Person with Buyer or Lynch (or any Person
acting on its or his behalf) in connection with any of the transactions
contemplate by this Agreement.
The remedies provided in this Section 8.3 will not be exclusive of or limit
any other remedies that may be available to Sellers or the other Seller
Indemnified Persons.
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8.4 PROCEDURE FOR INDEMNIFICATION -- THIRD PARTY CLAIMS
(a) Promptly after receipt by an Indemnified Party under Section 8.2 or 8.3
of notice of the commencement of any Proceeding against it, such Indemnified
Party will, if a claim is to be made against an indemnifying party under such
Section, give notice to the indemnifying party of the commencement of such
claim, but the failure to notify the indemnifying party will not relieve the
indemnifying party of any liability that it may have to any Indemnified Party,
except to the extent that the indemnifying party demonstrates that the defense
of such action is prejudiced by the Indemnified Party's failure to give such
notice.
(b) If any Proceeding referred to in Section 8.4(a) is brought against an
Indemnified Party and it gives notice to the indemnifying party of the
commencement of such Proceeding, the indemnifying party will be entitled to
participate in such Proceeding and, to the extent that it wishes (unless (i) the
indemnifying party is also a party to such Proceeding and the Indemnified Party
determines in good faith that joint representation would be inappropriate, or
(ii) the indemnifying party fails to provide reasonable assurance to the
Indemnified Party of its financial capacity to defend such Proceeding and
provide indemnification with respect to such Proceeding), to assume the defense
of such Proceeding with counsel satisfactory to the Indemnified Party and, after
notice from the indemnifying party to the Indemnified Party of its election to
assume the defense of such Proceeding, the indemnifying party will not, as long
as it diligently conducts such defense, be liable to the Indemnified Party under
this Section 8 for any fees of other counsel or any other expenses with respect
to the defense of such Proceeding, in each case subsequently incurred by the
Indemnified Party in connection with the defense of such Proceeding, other than
reasonable costs of investigation. If the indemnifying party assumes the defense
of a Proceeding, (i) it will be conclusively established for purposes of this
Agreement that the claims made in that Proceeding are within the scope of and
subject to indemnification; (ii) no compromise or settlement of such claims may
be effected by the indemnifying party without the Indemnified Party's consent
unless (A) there is no finding or admission of any violation of Legal
Requirements or any violation of the rights of any Person and no effect on any
other claims that may be made against the Indemnified Party, and (B) the sole
relief provided is monetary damages that are paid in full by the indemnifying
party; and (iii) the Indemnified Party will have no liability with respect to
any compromise or settlement of such claims effected without its consent. If
notice is given to an indemnifying party of the commencement of any Proceeding
and the indemnifying party does not, within ten days after the Indemnified
Party's notice is given, give notice to the Indemnified Party of its election to
assume the defense of such Proceeding, the indemnifying party will be bound by
any determination made in such Proceeding or any compromise or settlement
effected by the Indemnified Party.
(c) Notwithstanding the foregoing, if an Indemnified Party determines in
good faith that there is a reasonable probability that a Proceeding may
adversely affect it or its affiliates other than as a result of monetary damages
for which it would be entitled to indemnification under this Agreement, the
Indemnified Party may, by notice to the indemnifying party, assume the exclusive
right to defend, compromise, or settle such Proceeding, but the indemnifying
party will not be bound by any determination of a Proceeding so defended or any
compromise or settlement effected without its consent (which may not be
unreasonably withheld).
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8.5 PROCEDURE FOR INDEMNIFICATION -- OTHER CLAIMS
A claim for indemnification for any matter not involving a third-party
claim may be asserted by notice to the party from whom indemnification is
sought.
9. GENERAL PROVISIONS
9.1 EXPENSES
Except as otherwise expressly provided in this Agreement, each party to
this Agreement will bear its respective expenses incurred in connection with the
preparation, execution, and performance of this Agreement and the transactions
contemplated by this Agreement, including all fees and expenses of agents,
representatives, counsel, and accountants. In the event of termination of this
Agreement, the obligation of each party to pay its own expenses will be subject
to any rights of such party arising from a breach of this Agreement by another
party.
9.2 PUBLIC ANNOUNCEMENTS
Any public announcement or similar publicity with respect to this Agreement
or the transactions contemplated by this Agreement will be issued, if at all, at
such time and in such manner as Buyer and Sellers mutually determine. Unless
agreed by Buyer and Sellers in advance or required by Legal Requirements, prior
to the Closing Buyer, Lynch and Sellers shall keep this Agreement strictly
confidential and may not make any disclosure of this Agreement to any Person
other than to their respective Representatives.
9.3 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by telecopier
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
Sellers: Elan International Services, Ltd.
102 St. James Court
Flatts, Smiths Parish
Bermuda FL 04
Attention: President
Facsimile No.: (441) 292-2224
with a copy to: Cahill Gordon & Reindel LLP
80 Pine Street
New York, NY 10005
Attention: Christopher T. Cox, Esq.
Facsimile No.: (212) 269-5420
-16-
Buyer and Lynch: c/o Amarin Corporation PLC
7 Curzon Street
London, W1J 5HG
United Kingdom
Attention: Thomas G. Lynch
Facsimile No.: +44 (0) 20 7499 9004
with a copy to: Cox Hallett Wilkinson
Milner House
18 Parliament Street
P.O. Box HM 1561
Hamilton HM FX
Bermuda
Attention: Julie Stanton, Esq.
Facsimile No.: (441) 292-7880
9.4 FURTHER ASSURANCES
The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things, all as the other party may reasonably
request for the purpose of carrying out the intent of this Agreement and the
documents referred to in this Agreement.
9.5 WAIVER
The rights and remedies of the parties to this Agreement are cumulative and
not alternative. Neither the failure nor any delay by any party in exercising
any right, power, or privilege under this Agreement or the documents referred to
in this Agreement will operate as a waiver of such right, power, or privilege,
and no single or partial exercise of any such right, power, or privilege will
preclude any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right arising out of this Agreement
or the documents referred to in this Agreement can be discharged by one party,
in whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; (b) no waiver that may be given by a party
will be applicable except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
9.6 ENTIRE AGREEMENT AND MODIFICATION
(a) In this Section 9.6, "Representation" means representation, statement,
assurance, covenant, undertaking, indemnity, guarantee or commitment (whether
contractual or otherwise).
(b) This Agreement and each document referred to in it constitute the
entire agreement and supersede any previous agreements between the parties
relating to the subject matter of this Agreement.
-17-
(c) Each of Buyer and Lynch acknowledges and represents that it or he has
not relied on or been induced to enter into this Agreement by a Representation
given by any Seller other than the representations and warranties as set out in
Section 4. No Seller is liable to Buyer or Lynch for a Representation that is
not set out in this Agreement.
(d) Each Seller acknowledges and represents that it has not relied on or
been induced to enter into this Agreement by any Representation given by Buyer
or Lynch other than the representations and warranties as set out in Section 5.
Neither Buyer nor Lynch is liable to any Seller for a Representation that is not
set out in this Agreement.
Nothing in this Section 9.6 shall have the effect of limiting or restricting any
liability arising as a result of any fraud, willful misconduct or willful
concealment.
9.7 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
No party may assign any of its rights under this Agreement without the
prior consent of the other parties. Subject to the preceding sentence, this
Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the parties. A Person who is
not a party to this Agreement has no right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of this Agreement, but this does not
affect any right or remedy of a third party which exists or is available apart
from that Act.
9.8 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
9.9 SECTION HEADINGS; CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
9.10 TIME OF ESSENCE
With regard to all dates and time periods set forth or referred to in this
Agreement, time is of the essence.
9.11 GOVERNING LAW AND JURISDICTION
(a) This Agreement and all matters arising from or connected with it are
governed by English law.
-18-
(b) Subject to Section 9.11(d), the courts of England have exclusive
jurisdiction to settle any dispute arising from or connected with this Agreement
(a "Dispute") including a dispute regarding the existence, validity or
termination of this Agreement or the consequences of its nullity.
(c) The parties agree that the courts of England are the most appropriate
and convenient courts to settle any Dispute and, accordingly, that they will not
argue to the contrary.
(d) Notwithstanding Section 9.11(b), this clause does not prevent Buyer or
any Seller from taking proceedings relating to a Dispute ("Dispute Proceedings")
in any other court with jurisdiction. To the extent allowed by law, Buyer or any
Seller may take concurrent Dispute Proceedings in any number of jurisdictions.
(e) The parties agree that the documents which start any Dispute
Proceedings and any other documents required to be served in relation to those
Dispute Proceedings may be served on Buyer, Lynch or any Seller in accordance
with Section 9.3. These documents may, however, be served in any other manner
allowed by law. This clause applies to all Dispute Proceedings wherever started.
9.12 REGULATION S
Buyer acknowledges and agrees that (a) the Warrant and the Notes have not
been registered under the Securities Act, or the securities laws of any state
and (b) neither such securities nor any interest or participation therein may be
offered, sold, assigned, transferred, pledged, encumbered or otherwise disposed
of in the absence of such registration or unless such transaction is exempt
from, or not subject to, such registration. Each Buyer agrees not to offer, sell
or otherwise transfer the Warrant or the Notes prior to the date that is 40 days
after the Closing Date, except to (i) Amarin, (ii) pursuant to a registration
statement that has been declared effective under the Securities Act, (iii)
pursuant to an Offshore Transaction (as defined in Rule 902 of the Securities
Act) complying with Rule 903 or 904 of the Securities Act, or (iv) pursuant to
another available exemption from the registration requirements of the Securities
Act.
9.13 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
will be deemed to be an original copy of this Agreement and all of which, when
taken together, will be deemed to constitute one and the same agreement.
-19-
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ Kevin Insley
---------------------------------
Name: Kevin Insley
Title: President
MONKSLAND HOLDINGS BV
By: /s/ William F. Daniel
---------------------------------
Name: William F. Daniel
Title: Attorney-In-Fact
ELAN PHARMA INTERNATIONAL LIMITED
By: /s/ William F. Daniel
----------------------------------
Name: William F. Daniel
Title: Attorney-In-Fact
AMARIN INVESTMENT HOLDING LTD.
By: /s/ David J. Doyle
-----------------------------------
Name: David J. Doyle
Title: Director
/s/ Thomas G. Lynch
------------------------------------------
Thomas G. Lynch
EXHIBIT A
FORM OF OPINION OF AMARIN COUNSEL
Elan International Services Limited Our ref JSB/E.327-68
Clarendon House Direct tel 020 7360 8155
2 Church Street Direct fax 020 7360 6320
Hamilton, Bermuda E-mail stuart.borrie@ngj.co.uk
Elan Pharma International Limited Your ref
WIL House
AMARIN CORPORATION PLC (THE "COMPANY")
This opinion is being delivered to you in connection with the proposed purchase
by Amarin Investment Holding Ltd ("AIH"):
(a) from Elan International Services Ltd ("EIS") of 4,529,819 American
Depositary Shares, each representing one ordinary share of 5 pence in
the capital of the Company;
(b) from Monksland Holdings BV ("Monksland") of 124,000 American
Depositary Shares, each representing one ordinary share of 5 pence in
the capital of the Company;
(c) from Elan Pharma International Limited ("EPIL") of a warrant to
subscribe for 500,000 ordinary shares of 5 pence in the capital of the
Company (the "Warrant"); and
(d) from EPIL of US$5,000,000 in aggregate amount of secured loan notes
due 2009 of the Company (the "Loan Notes", and together with (a), (b)
and (c), the "Securities")
(the "Transaction").
1. Documents
For the purposes of this opinion, we have examined only the following
documentation as attached hereto and initialled for the purposes of
identification:
1.1 a copy of the articles of association of the Company, certified as a true
and accurate copy by the Company Secretary of the Company (the "Articles");
1.2 a copy of the minutes of a meeting of the board of directors of the Company
(the "Board") dated 15 September 2004 and a copy of the minutes of a
meeting of a duly constituted committee of the Board (the "Committee")
dated __________ 2004, each certified as true and accurate copies by the
Company Secretary of the Company (together the "Minutes");
1.3 the written notification dated ___________ September 2004 from Thomas G
Lynch ("Mr Lynch") addressed to the Board, confirming that he is not in
possession of any unpublished price sensitive information relating to the
Company (the "Notification");
A-1
1.4 the securities purchase agreement dated _________ September 2004 and
entered into between EIS, Monksland and EPIL (1) and AIH (2) (the
"Securities Purchase Agreement");
1.5 the deposit agreement dated 29 March 1993 as amended on 8 October 1998 and
19 July 2002 constituting the American Depositary Shares;
1.6 the warrant instrument dated 25 February 2004 constituting the Warrant;
1.7 the Loan Notes instrument dated 25 February 2004; and
1.8 the result of a search of information held by the Registrar of Companies in
England and Wales in respect of the Company carried out by us on ________
September 2004 and updated by a telephone search on _________ 2004 (the
"Search").
2. Assumptions
For the purposes of this opinion we have assumed without investigation:
2.1 the authenticity, accuracy and completeness of the documents submitted to
us as originals or copies, the genuineness of all signatures and the
conformity to original documents of all copies;
2.2 that the Articles in the form provided to us are true, complete and up to
date as at the date of this opinion;
2.3 that, save as set out in the Articles or arising as a matter of general
law, there exists no restriction or limit on the directors in performing
their obligations arising under the Transaction, whether pursuant to an
existing agreement, arrangement, authorisation, contract, court order,
deed, governmental or regulatory ruling, injunction or otherwise;
2.4 that the interests of Mr Lynch in the Transaction were properly disclosed
to the meeting of the board of directors of the Company of which the
Minutes are a record, in accordance with the Articles and section 317 of
the Companies Act 1985 (the "Act");
2.5 that the Minutes accurately record the proceedings of duly convened,
constituted and conducted meetings of the Board and the Committee,
respectively, and the resolutions passed have not been subsequently
amended, revoked or superseded, nor does there exist a preceding resolution
of the Board (or any committee thereof) or the shareholders of the Company
which in any way conflicts with, limits or prevents the passing of the
resolutions of the Board and the Committee as set out in the Minutes;
2.6 that the acceptance by the Committee on behalf of the Board of the
Notification was granted in possession of all the facts and circumstances
surrounding the Proposed Transaction and no circumstances exist which might
render either the Notification or the acceptance thereof by the Committee
inaccurate either when given or at the time of the issue of this opinion by
reference to current facts and circumstances;
2.7 that the Company has given, and will give, no financial assistance contrary
to the terms of section 151 of the Act in connection with the Transaction
and that the Transaction is not in connection with the loss of office of
any director, and does not form part of an arrangement by which non-cash
assets are being acquired from the Company or by which a loan, quasi-loan,
guarantee or similar arrangement is entered into by the Company;
2.8 the capacity, power and authority of each of the parties to the Securities
Purchase Agreement to enter into and perform the obligations set out
therein, that the obligations of those parties are valid, binding and
enforceable against them in accordance with their terms, and that each
party to the Securities Purchase Agreement has taken all action necessary
to authorise the signing and
A-2
delivery of the Securities Purchase Agreement and the exercise of its
rights and the performance of its obligations under the Securities Purchase
Agreement;
2.9 having undertaken the Search (but having made no other enquiries) and the
Search not revealing any of the same, that no resolution has been passed,
no petition has been presented and no order has been made for the winding
up or dissolution of, or for an administration order to be made in relation
to, and no voluntary arrangement has been entered into by, the Company, no
receiver, administrative receiver, administrator, liquidator, provisional
liquidator, nominee or supervisor or similar officer has been appointed and
no notice of intention to appoint an administrator or notice of appointment
of an administrator has been filed in relation to the Company or any of its
assets;
2.10 that the performance of each obligation under the Securities Purchase
Agreement is not illegal in any place outside England and Wales in which
that obligation is to be performed;
2.11 that the purchases being made by AIH are being made on its own account and
not as a nominee, agent or trustee, and not with a view to the resale or
distribution of any of the Securities, and that neither AIH nor Mr Lynch
has any intention of selling, granting any participation or interest in, or
otherwise distributing, the Securities or any of them; and neither AIH nor
Mr Lynch is a party to any agreement, arrangement or contract with any
person to sell, transfer or grant any participation or interest therein to
any person with respect to the Securities or any of them;
2.12 that the Securities are not subject to any encumbrance, lien, charge,
restriction or other interest;
2.13 that the Warrant confers a right to subscribe for shares in or debentures
of the Company;
2.14 that Mr Lynch has at all relevant times acted in good faith and for the
proper purposes of, and in the best interests of, the Company and is not
acting contrary to the best interests of the Company by entering into, or
performing, the Transaction, and that the Transaction is not unfairly
prejudicial to any member of the Company;
2.15 that Mr Lynch is the sole legal and beneficial owner of all the issued
shares in the capital of AIH;
2.16 that the entering into of the Transaction by AIH did not arise as a result
of Mr Lynch acting in his capacity as a director of the Company or by
reason of him using opportunities or knowledge arising as a result of his
being a director of the Company; and
2.17 that Mr Lynch and the Company have at all times complied with article 106
of the Articles, that article 106 is not void, whether by reason of the
impact of section 310 of the Act or otherwise, and that Mr Lynch may rely
on article 106 to permit the entering into and performance by AIH of the
Transaction.
3. Opinion
Based upon and subject to the foregoing, and subject to the reservations
mentioned below, we are of the opinion that:
(a) save as set out in paragraph 4.10, no consent, authorisation, approval
or other action of the Company is required in order to enable AIH
lawfully to enter into, exercise its rights and perform its
obligations under the Securities Purchase Agreement; and
(b) neither the Company nor any of its members or creditors nor any
liquidator, administrator, receiver or administrative receiver of the
Company could successfully challenge the Transaction as a breach by Mr
Lynch of his duties to the Company.
4. Reservations
A-3
Our reservations are as follows:
4.1 we express no opinion as to any law other than English law in force, and as
interpreted in English courts, at the date of this opinion. We are not
qualified to, and we do not, express an opinion on the laws or regulations
of any other jurisdiction. In particular and without prejudice to the
generality of the foregoing, we have not independently investigated the
laws of the United States of America, nor of any state or district thereof,
nor the rules governing NASDAQ, nor the laws of any other jurisdiction of
residence of any of the parties to the Securities Purchase Agreement for
the purpose of this opnion;
4.2 without limiting any other assumption or reservation made in this opinion,
we have not investigated whether any of the parties to the Securities
Purchase Agreement is or will by reason of the execution of, or the
Transaction contemplated by, the Securities Purchase Agreement be in breach
of any of its obligations under any agreement, arrangement, authorisation,
contract, court order, deed, governmental or regulatory ruling, injunction
or other document (other than the Articles);
4.3 under common law, directors may not enter into arrangements in which they
have, or can have, a personal interest conflicting, or which possibly may
conflict, with the interests of the company to which the fiduciary duty is
owed. Regal (Hastings) -v- Gulliver [1942] 1 All ER 378, the leading case
on secret profits, provides that it may be possible, depending on the facts
and circumstances of the case, for a director not to have to account to the
company, by reason of a provision in the articles of association of the
company or on the passing of an ordinary resolution of the company in
general meeting. Whether there has been a profit which is accountable to
the Company will depend on the facts and circumstances of the Transaction;
4.4 under Part V of the Criminal Justice Act 1993 (the "CJA"), any individual
who has information as an insider is guilty of insider dealing if in the
specified circumstances he deals in securities that are price-affected
securities in relation to the information. Other offences include
encouraging others to deal. We express no opinion as to whether any party
is or has been in contravention of Part V of the CJA in connection with the
Transaction. However, section 63(2) of the CJA states that no contract is
void or unenforceable by reason of commission of a section 52 insider
dealing offence. The Proceeds of Crime Act 2002 (the "PCA") provides for
confiscation of proceeds of a criminal offence or property obtained as a
result of a commission of a criminal offence. Such powers of confiscation
are exercisable in relation to any property whether or not any proceedings
have been brought for an offence in relation to that property. We express
no opinion as to whether an offence under the PCA has been committed by
virtue of the entering into of the Transaction by AIH;
4.5 we express no opinion as to whether the Securities Purchase Agreement
achieves the purpose of all or any of the parties thereto or to whether the
Securities Purchase Agreement is valid, binding or enforceable;
4.6 laws relating to bankruptcy, liquidation or administration or other laws or
procedures affecting generally the enforcement of creditors' rights may
affect the obligations under the Securities Purchase Agreement and the
remedies available;
4.7 the information revealed by the Search may not be up to date or complete as
a result of delays in filing by the persons responsible and/or mis-filings
or delays by staff at the Registry of Companies in England and Wales;
4.8 we express no opinion as to the compliance by any party with principles and
rules relating to good corporate governance;
A-4
4.9 we express no opinion as to any tax treatment or consequences of the
Transaction;
4.10 the transfers of the Loan Notes and the Warrant will need to be registered
by the Company in the relevant registers maintained by it in respect
thereof, and new certificates in respect of the Loan Notes and the Warrant
will need to be completed and delivered by the Company to AIH; and
4.11 we express no opinion as to whether any consent, authorisation, approval or
other action is required of the Company or any other party under or
pursuant to the terms of the debenture entered into by the Company on 4
August 2003 in favour of Elan Corporation Plc ("Elan") (as subsequently
amended), the deed of priority entered into by the Company on 28 October
2003 with Elan and Watson Pharmaceuticals Inc, the deed of amendment,
assignment and assumption entered into by Elan, AIH and others (including
the Company), or any other agreement which we have not examined for the
purpose of this opinion (as referred to in paragraph 1) and we express no
opinion as to the maintenance of any priority for any security interest in
respect of the Loan Notes granted at any time by the Company or any other
person.
This opinion speaks only to the laws of England and Wales, as they are applied
in English courts. No opinion as to the facts and circumstances arising in
connection with the Transaction is expressed or implied.
This opinion speaks only as at the date hereof. We have no obligation to advise
the addressee (or any third party) of any changes in the law or facts that may
occur after the date of this opinion.
This opinion is given on condition that it is governed by and shall be construed
in accordance with the laws of England and Wales as in force at and interpreted
at the date of this opinion and that any action or claim against us or any of
our partners, employees or agents arising out of it is subject to the exclusive
jurisdiction of the English courts and to be determined only by the principles
of English law (including without prejudice to the foregoing those relating to
liability, causation and quantum). We have not investigated the laws of any
country other than England and Wales.
This opinion is given solely to you in relation to the Transaction. It may not
be used nor relied upon for any other purpose or by any other person.
Yours faithfully
Nicholson Graham & Jones
A-5
EXHIBIT B
FORM OF BOARD MINUTES OF AMARIN
AMARIN CORPORATION PLC
(the "Company")
MINUTES of a Meeting of the Board of Directors of the Company held at 7 Curzon
Street, London W1J 5HG on 15th September 2004 at 2.15 pm.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PRESENT IN ATTENDANCE
Dr W Mason (Acting Chairman) Mr JS Lamb (secretary)
Mr T G Lynch
Mr R A B Stewart
Mr J Groom
Dr H Huckel
Mr A Cooke
Mr A Russell-Roberts
--------------------------------------------------------------------------------
1. QUORUM
The Chairman of the meeting noted that the meeting had been duly convened
in accordance with the Articles of Association of the Company and that the
necessary quorum of Directors was present and that the meeting could
proceed. IT WAS NOTED that Mr Groom and Dr Huckel were attending by
telephone and each of them confirmed that they could hear all the other
members of the Board and the Chairman confirmed that they could be heard.
2. BACKGROUND AND PURPOSE OF THE MEETING
The Chairman noted that the purpose of the meeting was to consider and if
thought fit approve the entering into of the transaction to be outlined to
the meeting involving one of the directors of the Company.
3. APPROVAL OF DIRECTORS' TRANSACTION
3.1 The Chairman reported to the meeting that:
(a) Thomas G Lynch, a director of the Company, had informed him that he
proposed to purchase:
B-1
(i) from Elan International Services Limited ("EIS"), 4,529,819
American Depository Shares, each representing one ordinary share
of 5 pence in the capital of the Company;
(ii) from Monksland Holdings BV, 124,000 American Depository Shares,
each representing one ordinary share of 5 pence in the capital of
the Company;
(iii) from Elan Pharma International Limited ("EPIL"), a warrant to
subscribe for 500,000 ordinary shares of 5 pence in the capital
of the Company; and
(iv) from EPIL, US$5,000,000 in aggregate amount of secured loan notes
due 2009 of the Company;
for the sum of US$6,500,000 in cash (the "Proposed Transaction"); and
(b) for the sake of good order, Mr Lynch had sought the approval of the
board of the Proposed Transaction.
3.2 A copy of a draft sale and purchase agreement among, inter alia, Amarin
Investment Holding Ltd ("NewCo", a company wholly-owned by Mr Lynch) and
EIS in relation to the Proposed Transaction (the "Sale and Purchase
Agreement") was produced to the meeting.
3.3 In accordance with section 317 of the Companies Act 1985 and the Articles
of Association of the Company (the "Articles"), each of Messrs Lynch and
John Groom fully declared all of their respective interests in the Proposed
Transaction to the meeting. The Chairman reminded the meeting that,
pursuant to article 108 of the Articles, Messrs Lynch and Groom may not
vote (nor be counted in the quorum) on any resolution of the board of
directors in respect of the Proposed Transaction.
3.4 However, as there were at least two directors present at the meeting (other
than Messrs Lynch and Groom) (the "Independent Directors"), the Chairman
declared that a quorum was present to consider and vote on the Proposed
Transaction.
3.5 Mr. Lynch confirmed that he was not in possession of any information
(whether amounting to unpublished price sensitive information or otherwise)
concerning the Company or its business or prospects that would preclude him
from dealing in shares of the Company (whether pursuant to Part V of the
Criminal Justice Act 1993, Part VIII of the Financial Services and Markets
Act 2000, the NASDAQ Marketplace Rules or otherwise) ("UPSI"), save for the
proposed settlement of potential litigation with Valeant Pharmaceuticals
International of which EIS are aware (the "Settlement"). The Independent
Directors considered these confirmations and agreed with such
confirmations.
3.6 After full and careful consideration, IT WAS UNANIMOUSLY RESOLVED by the
Independent Directors that, subject to the public announcement of the
Settlement (in accordance with NASDAQ rules), and providing that
immediately prior to the entering into by Mr Lynch of the Proposed
Transaction, Mr Lynch provides to the Committee (as constituted below) a
written statement (the "Statement") that he is not then in possession of
any UPSI:
(a) the entry into of the Proposed Transaction by NewCo be consented to,
authorised and approved; and
(b) notwithstanding that Mr Lynch is a director of the Company (and has
previously been a director of EIS's parent company, Elan Corporation
Plc), Mr Lynch has no obligation to
B-2
account to the Company or its members or creditors, for any profit or
other benefit realised by him in connection with the Proposed
Transaction.
3.7 The Chairman reported to the meeting that he had consulted with each
director who was not present and had obtained his approval of the Proposed
Transaction.
4. COMMITTEE
IT WAS RESOLVED that any two directors be appointed as a committee of the
Board (the "Committee") to approve and accept the Statement to be provided by Mr
Lynch.
5. FURTHER RESOLUTION
The meeting having carefully considered the terms of the Proposed
Transaction RESOLVED THAT whilst the Company was not a party to the
Proposed Transaction, the terms thereof were in the best interests of and a
benefit to the Company and its shareholders.
6. CLOSE OF MEETING
There being no other business the Chairman declared the meeting closed.
_______________________________________
CHAIRMAN
B-3
EXHIBIT C
FORM OF OPINION OF BUYER COUNSEL
[ ] September, 2004
Elan International Services, Ltd.
Monksland Holdings BV
Elan Pharma International Limited
c/o Elan International Services, Ltd.
St. James Court
Flatts, Smith's Parish
Bermuda FL 04
Dear Sirs,
Re: Amarin Investment Holding Ltd. (the "Company")
We have acted as special legal counsel to the Company in connection with a
Securities Purchase Agreement dated [ ] September 2004 by and among the Company
as Buyer and Elan International Services, Ltd., Monksland Holdings BV and Elan
Pharma International Limited as Sellers and Thomas G. Lynch (the "Agreement").
The Company has requested that we provide this opinion pursuant to Clause 2.4
(b) (iv) of the Agreement.
For the purposes of this opinion, we have been supplied with and have examined,
and relied upon an executed copy of the Agreement sent to us electronically on
[__] (the "Opinion Document").
We have also examined and relied upon the documents listed, and, in some cases
defined, in the First Schedule to this opinion (the "Documents").
Assumptions
For the purposes of our opinion, we have assumed:-
(a) the authenticity, accuracy and completeness of all Documents submitted to
us as originals and the conformity to authentic original Documents of all
Documents submitted to us as certified, conformed, notarised, faxed or
photostatic copies;
(b) the genuineness of all signatures on the Documents;
(c) the accuracy and completeness of all factual representations made in the
Documents and other documents reviewed by us;
(d) the authority, capacity and power of each of the parties, other than the
Company, to enter into and perform its respective obligations under the
Opinion Document;
(e) that the Opinion Document constitutes the legal, valid and binding
obligations of each of the parties thereto, other than the Company;
C-1
(f) that the Opinion Document has been validly authorised, executed and
delivered by each of the parties thereto, other than the Company, and the
performance thereof is within the capacity and powers of each party
thereto, other than the Company, and that each such party to which the
Company purportedly delivered the Opinion Document has actually received
and accepted delivery of such Opinion Document;
(g) that there are no provisions of the laws or regulations of any jurisdiction
other than Bermuda which would be contravened by the execution or delivery
of the Documents or which would have any implication in relation to the
opinions expressed herein and that, in so far as any obligation under, or
action to be taken under, the Opinion Document is required to be performed
or taken in any jurisdiction outside Bermuda, the performance of such
obligation or the taking of such action will constitute a valid and binding
obligation of each of the parties thereto under the laws of that
jurisdiction and will not be illegal by virtue of the laws of that
jurisdiction;
(h) that the Resolutions are in full force and effect, have not been rescinded,
either in whole or in part, and accurately record the resolutions by way of
meeting held on September , 2004 of the Directors of the Company (the
"Board") and that there is no matter affecting the authority of the Board
to enter into the Opinion Document not disclosed by the Constitutional
Documents or the Resolutions, which would have any adverse implication in
relation to the opinions expressed herein; and
(i) that the Company has entered into its obligations under the Opinion
Document in good faith for the purpose of carrying on its business and
that, at the time it did so, there were reasonable grounds for believing
that the transactions contemplated by the Opinion Documents would benefit
the Company.
Opinion
Based upon and subject to the foregoing and subject to the reservations set out
below and to any matters not disclosed to us, we are of the opinion that:-
(1) The Company is an exempted company limited by shares incorporated and
existing under the laws of Bermuda. The Company possesses the capacity to
sue and be sued in its own name and is in good standing (meaning that it
has paid all fees and made all filings due in Bermuda) under the laws of
Bermuda.
(2) The Company has all requisite corporate power and authority to enter into,
execute and deliver the Opinion Document and to perform its obligations
thereunder and to take all action as may be necessary to complete the
transactions contemplated thereby.
(3) The execution, delivery and performance by the Company of the Opinion
Document and the transactions contemplated thereby have been duly
authorised by all necessary corporate action on the part of the Company.
(4) The Opinion Document has been duly executed by the Company and constitutes
legal, valid and binding obligations of the Company enforceable against the
Company in accordance with the terms thereof.
(5) The execution and delivery of the Opinion Document and the transactions
contemplated thereby do not and will not violate, conflict with or
constitute a default under (i) any requirement of any law or any regulation
of Bermuda or (ii) the Constitutional Documents.
C-2
(6) No order, consent, approval, licence, authorisation or validation of or
exemption by any government or public body or authority of Bermuda or any
sub-division thereof is required to authorise or is required in connection
with the execution, delivery, performance and enforcement of the Opinion
Document.
(7) The choice of English law as the proper law to govern the Opinion Document
is a valid choice of law under Bermuda law and such choice of law would be
recognised, upheld and applied by the courts of Bermuda as the proper law
of the Opinion Document in proceedings brought before them provided that
(i) the point is specifically pleaded; (ii) such choices of law is valid
and binding under the laws of England and (iii) recognition would not be
contrary to public policy as that term is understood under Bermuda law.
(8) The submission by the Company to the jurisdiction of the courts of England
pursuant to the Opinion Document is not contrary to Bermuda law and would
be recognised by the courts of Bermuda as a legal, valid and binding
submission to the jurisdiction of the courts of England if such submission
is accepted by such courts and is legal, valid and binding under the laws
of England.
(9) A final and conclusive judgment of a foreign court against the Company
based upon the Opinion Document under which a sum of money is payable (not
being a sum payable in respect of taxes or other charges of a like nature,
in respect of a fine or other penalty, or in respect of multiple damages as
defined in The Protection of Trading Interests Act 1981) may be enforceable
in Bermuda if the foreign court is situated in a country to which The
Judgments (Reciprocal Enforcement) Act 1958 (the "1958 Act") applies. The
procedure provided for in the 1958 Act must be followed if the 1958 Act
applies. The 1958 Act applies to the United Kingdom. Under the 1958 Act, a
judgment obtained in the superior courts of a territory to which it applies
would be enforced by the Supreme Court of Bermuda without re-examination of
the merits of the case provided that:
(i) the judgment is final and conclusive, notwithstanding that an appeal may be
pending against it or it may still be subject to an appeal in such country;
(ii) the judgment has not been given on appeal from a court which is not a
superior court; and
(iii) the judgment is duly registered in the Supreme Court of Bermuda in
circumstances in which its registration is not liable thereafter to be set
aside.
Under Section 3(4) of the 1958 Act, the registration of such a court's
judgment in the Supreme Court of Bermuda involves the conversion of the
judgment debt into Bermuda dollars as of the date of the foreign court's
judgment, but the Bermuda Monetary Authority has indicated that its present
policy is to give the consents necessary for any Bermuda dollar award made
by the Supreme Court of Bermuda as aforesaid to be recovered in external
currency. No stamp duty or similar or other tax or duty is payable in
Bermuda on the enforcement of a foreign judgment. Court fees will be
payable in connection with proceedings for enforcement.
(10) There is no income or other tax of Bermuda imposed by withholding or
otherwise on any payment to be made to or by the Company pursuant to the
Opinion Document.
(11) The Company is not entitled to any immunity under the laws of Bermuda,
whether characterised as sovereign immunity or otherwise, from any legal
proceedings to enforce the Opinion Document in respect of itself or its
property.
C-3
(12) The Company has been designated as non-resident of Bermuda for the purposes
of the Exchange Control Act, 1972 and, as such, is free to acquire, hold
and sell foreign currency and securities without restriction.
(13) The Opinion Document is in an acceptable legal form under the laws of
Bermuda for enforcement thereof in Bermuda.
Reservations
We have the following reservations:-
(a) We express no opinion as to the availability of equitable remedies such as
specific performance or injunctive relief, or as to any matters which are
within the discretion of the courts of Bermuda in respect of any
obligations of the Company as set out in the Opinion Document. In
particular, we express no opinion as to the enforceability of any present
or future waiver of any provision of law (whether substantive or
procedural) or of any right or remedy which might otherwise be available
presently or in the future under the Opinion Document.
(b) Enforcement of the obligations of the Company under the Opinion Document
may be limited or affected by applicable laws from time to time in effect
relating to bankruptcy, insolvency or liquidation or any other laws or
other legal procedures affecting generally the enforcement of creditors'
rights.
(c) Enforcement of the obligations of the Company may be the subject of a
statutory limitation of the time within which such proceedings may be
brought.
(d) We express no opinion as to any law other than Bermuda law and none of the
opinions expressed herein relates to compliance with or matters governed by
the laws of any jurisdiction except Bermuda. This opinion is limited to
Bermuda law as applied by the Courts of Bermuda at the date hereof.
(e) Where an obligation is to be performed in a jurisdiction other than
Bermuda, the courts of Bermuda may refuse to enforce it to the extent that
such performance would be illegal under the laws of, or contrary to public
policy of, such other jurisdiction.
(f) We express no opinion as to the validity or binding effect of any provision
of the Opinion Document which provides for the severance of illegal,
invalid or unenforceable provisions.
(g) A Bermuda court may refuse to give effect to any provisions of the Opinion
Document in respect of costs of unsuccessful litigation brought before the
Bermuda court or where that court has itself made an order for costs.
Disclosure
C-4
This opinion is addressed to you solely for your benefit and is neither to be
transmitted to any other person, nor relied upon by any other person or for any
other purpose nor quoted or referred to in any public document nor filed with
any governmental agency or person, without our prior written consent, except as
may be required by law or regulatory authority. Further, this opinion speaks as
of its date and is strictly limited to the matter stated therein and we assume
no obligation to review or update this opinion if applicable law or the existing
facts or circumstances should change.
This opinion is governed by and is to be construed in accordance with Bermuda
law. It is given on the basis that it will not give rise to any legal
proceedings with respect thereto in any jurisdiction other than Bermuda.
Yours faithfully
Cox Hallett Wilkinson
C-5
FIRST SCHEDULE
1. An executed copy of the Securities Purchase Agreement dated [ ] September
2004 by and among the Company as Buyer and Elan International Services,
Ltd., Monksland Holdings BV and Elan Pharma International Limited as
Sellers and Thomas G Lynch and sent to us by e-mail on [ ] September 2004.
2. Copies of the Certificate of Incorporation, Memorandum of Association and
Bye-laws for the Company adopted on [ ] as certified by the Secretary of
the Company on [ ] September 2004 (collectively referred to as the
"Constitutional Documents").
3. Copy of the minutes of the meeting of the Board of Directors of the Company
held on [ ] as certified by an officer of the Company on [ ]
("Resolutions").
4. A certified copy of the Register of Directors and Officers in respect of
the Company.
5. A certified copy of the "Tax Assurance" dated [ ] in respect of the Company
C-6
EXHIBIT D
FORM OF BOARD COMMITTEE MINUTES OF AMARIN
AMARIN CORPORATION PLC
(the "Company")
MINUTES of a Meeting of a Committee of the Board of Directors of the Company
held at 7 Curzon Street, London W1J 5HG on 2004 at am/pm.
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PRESENT IN ATTENDANCE
Mr R A B Stewart (Acting Chairman) Mr JS Lamb (secretary)
Mr A Cooke
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1. QUORUM
The Chairman of the meeting noted that the meeting had been duly convened
in accordance with the articles of association of the Company and that the
attending directors constituted a committee of the Board (the "Committee")
in accordance with the resolution of the Board passed at the meeting of the
Board held on 15 September 2004 (the "Board Meeting") and that the
necessary quorum of Directors was present and that the meeting could
proceed.
2. BACKGROUND AND PURPOSE OF THE MEETING
2.1 The Chairman referred to the minutes of the Board Meeting and noted that
the purpose of this Committee meeting was, if thought fit, to approve and
accept a written statement from Thomas G Lynch ("Mr Lynch"), confirming
that, in relation to the Proposed Transaction (as further described in the
minutes of the Meeting), he is not in possession of any UPSI (as defined in
the minutes of the Board Meeting).
2.1 The Chairman reported to the meeting that the Company had received from Mr
Lynch a notification dated __________ 2004, confirming that he was not
in possession of any UPSI (the "Notification").
3. ACCEPTANCE OF CONFIRMATION
D-1
The meeting considered the terms of the Notification and agreed with Mr
Lynch's confirmation that he was not in possession of any UPSI. The
Chairman reported to the meeting that he had consulted with each
Independent Director (as defined in the minutes of the Board Meeting) who
was not present and had confirmed that he agreed with Mr Lynch's
confirmation. Accordingly, IT WAS RESOLVED that the Notification be and
hereby is accepted by the Committee on behalf of the Board.
4. CLOSE OF MEETING
There being no other business the Chairman declared the meeting closed.
____________________________________
Chairman
D-2
SCHEDULE 4.1
EXECUTION VERSION
DATED ___________ 2004
ELAN CORPORATION PLC
AS ASSIGNOR
AMARIN INVESTMENT HOLDING LTD
AS ASSIGNEE
AND
OTHERS
--------------------------------------------------------------------------------
DEED OF AMENDMENT, ASSIGNMENT AND ASSUMPTION
--------------------------------------------------------------------------------
CONTENTS
Clause Page
1. QUORUM...............................................................1
2. BACKGROUND AND PURPOSE OF THE MEETING................................1
3. ACCEPTANCE OF CONFIRMATION...........................................1
4. CLOSE OF MEETING.....................................................2
1. DEFINITIONS AND INTERPRETATION.......................................1
2. ASSIGNMENT AND ASSUMPTION............................................2
3. CONFIRMATIONS, CONSENTS AND NOTICES..................................2
4. EFFECTIVE DATE OF THE ASSIGNMENT.....................................2
5. THE ASSIGNOR AND THE ASSIGNEE........................................2
6. REPRESENTATIONS AND WARRANTIES.......................................3
7. ASSIGNMENT OF RIGHTS.................................................3
8. FURTHER ASSURANCES...................................................3
9. AMENDMENT TO THE DEBENTURE...........................................3
10. NOTICES..............................................................4
11. ENTIRE AGREEMENT.....................................................5
12. GOVERNING LAW AND JURISDICTION.......................................5
13. COUNTERPARTS.........................................................5
Schedule 1 THE FORMER SECURED PARTIES
THIS DEED OF AMENDMENT, ASSIGNMENT AND ASSUMPTION ("Assignment") is made on
___________ 2004
BETWEEN:
(1) ELAN CORPORATION, PLC, a public limited company incorporated in Ireland
(registered number 30356), whose registered office is at Lincoln House,
Lincoln Place, Dublin 2, Ireland (the "Assignor");
(2) AMARIN INVESTMENT HOLDING LTD, a company incorporated in Bermuda having its
registered office at Clarendon House, 2 Church Street, Hamilton, Bermuda
(the "Assignee");
(3) AMARIN CORPORATION PLC, a company incorporated in England and Wales
(registered number 002353920), whose registered office is 7 Curzon Street,
London, W1J 5HG, England (the "Company"); and
(4) THE PARTIES listed in Schedule 1 hereof (the "Former Secured Parties").
WHEREAS
(A) This agreement is supplemental to a Debenture entered into between the
Company as chargor and the Assignor as trustee for the Secured Parties (as
defined therein) dated 4 August 2003 as amended from time to time (the
"Debenture").
(B) The Assignor proposes to assign to the Assignee all of its rights, title
and interest under the Debenture on the terms and subject to the conditions
set forth herein, and the Assignee proposes to accept the assignment of
such rights and assume the obligations from the Assignor on such terms and
subject to such conditions.
THIS DEED NOW WITNESSES AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Assignment:
"Assigned Rights" means any and all of Assignor's right, title, and
interest in, under and to the Debenture together with all claims of the
Assignor in respect thereof;
"Assumed Obligations" means all of the obligations which the Assignor has
to the Company under the Debenture; and
"Parties" means the parties hereto.
1.2 Unless a contrary indication appears, a reference to
1.2.1 "this Assignment" is a reference to this Assignment as amended or
novated from time to time;
1.2.2 "the Debenture" is a reference to the Debenture as amended or novated
from time to time; and
1.2.3 a "Clause" or "Schedule" is a reference to a clause or schedule of
this Assignment.
1.3 Clause and Schedule headings are for ease of reference only.
1.4 Any reference to the "Assignee" or the "Assignor" shall include its and any
subsequent successors and any permitted transferees in accordance with
their respective interests.
1.5 A person who is not a party to this Assignment has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Assignment.
2. ASSIGNMENT AND ASSUMPTION
2.1 Assignment
The Assignor hereby assigns, with full title guarantee, to the Assignee the
Assigned Rights and the Assignee hereby accepts the benefit of the Assigned
Rights.
2.2 Assumption
The Assignee agrees to assume the Assumed Obligations as fully and with the
same effect as if the Assignee had been named as an original party in the
Debenture. The Assignor shall have no any further obligations or
liabilities under the Debenture.
3. CONFIRMATIONS, CONSENTS AND NOTICES
3.1. Confirmations and Consents
Each of the Former Secured Parties hereby:
3.1.1 confirms to each of the other Parties that the Assignor has full
power to deal with the Assigned Rights being the subject matter of
this Assignment; and
3.1.2 after the assignment of the Assigned Rights has been effected in
accordance with Clause 2.1 (Assignment), they shall have no further
rights or interests, whether legal or beneficial, in, under or to the
Assigned Rights.
3.2 Notice
The execution of this Assignment by the Company and the other Parties
hereto shall constitute notice to the Company of the assignment contained
herein.
4. EFFECTIVE DATE OF THE ASSIGNMENT
The assignment of rights and the assumption of obligations referred to in
Clause 2 (Assignment and Assumption) above shall be effective immediately.
5. THE ASSIGNOR AND THE ASSIGNEE
5.1 Indemnity
The Assignor hereby agrees to indemnify the Assignee from and against any
and all losses, claims, damages, liabilities (or actions or other
proceedings commenced or threatened in respect thereof) arising under the
Debenture which are assumed by the Assignor pursuant to Clause 2.2
(Assumption) during the period commencing upon the date of execution of the
Debenture and ending upon the date hereof.
5.2 Limitation on Representations
-2-
The Assignor makes no representation or warranty whatsoever, and assumes no
responsibility with respect to:
5.2.1 the due execution, legality, validity, adequacy or enforceability of
the Debenture or any other related agreement or instrument;
5.2.2 the financial condition of the Company or any other person; or
5.2.3 the performance by the Company or any other person of its obligations
under the Debenture or any other related agreement or instrument.
6. REPRESENTATIONS AND WARRANTIES
Each of the Parties represents and warrants that:
6.1.1 it has power to enter into, and has duly authorised the execution and
delivery of this Assignment; and
6.1.2 its obligations hereunder constitute its legal, valid and binding
obligations.
7. ASSIGNMENT OF RIGHTS
This Assignment shall be binding upon and enure to the benefit of each
Party hereto and their respective successors and permitted assigns provided
that no Party may assign or transfer its rights hereunder without the prior
written consent of the other Parties.
8. FURTHER ASSURANCES
8.1 Each Party agrees, on the request of the other Party, to do everything
reasonably necessary to give effect to this Assignment and the transactions
contemplated by it (including the execution of documents) and to use all
reasonable endeavours to cause relevant third parties to do likewise.
8.2 The Assignor shall deliver to the Assignee promptly following execution of
this Assignment (and in any event within five business days after the date
hereof):
8.2.1 copies of all title documents, notices and other correspondence
delivered to it in connection with the Debenture; and
8.2.2 copies of all consents and other permissions given by the Assignor
under the Debenture.
8.3 At the request of the Assignee, the Assignor and the Company shall
immediately following execution of this Assignment give notice to each
person to whom a Notice of Assignment was delivered pursuant to the terms
of the Debenture advising them of the assignment hereunder and instructing
all such persons to hereafter deal directly with the Assignee.
9. AMENDMENT TO THE DEBENTURE
9.1 The Parties hereby agree that the Debenture shall be amended with immediate
effect as follows:
9.1.1 The definition of "Secured Parties" in clause 1 of the Debenture
shall be deleted in its entirety and the following shall be inserted
in its place:
""Secured Parties" means Amarin Investment Holdings Company Limited."
-3-
9.1.2 All references in the Debenture to "Elan" shall be hereafter be
deemed to be references to "Amarin Investment Holdings Company
Limited."
9.1.3 Clause 2.1 of the Debenture shall be amended as follows:
(a) the words "as trustee for the Secured Parties" in the first line
of clause 2.1 shall be deleted.
(b) the words "(whether for its own account or as trustee for the
Secured Parties) or any of the other Secured Parties" in lines
three and five of clause 2.1 shall be deleted.
9.1.4 The words "as trustee for the Secured Parties" in line one of clause
3.1 of the Debenture, in line one of clause 3.2 of the Debenture and
in line one of clause 3.3 of the Debenture, shall be deleted.
9.1.5 The words "on behalf of the Secured Parties" in line three of clause
10.1.1 of the Debenture shall be deleted.
9.1.6 The contents of Schedule 1 of the Debenture shall be deleted and
shall be replaced by the words "[Intentionally left blank]".
9.1.7 The words "Elan Corporation, plc (the "Trustee")" in Schedules 2 and
3 of the Debenture shall be deleted and be replaced by "Amarin
Investment Holding Company Limited ("AIH")" and the remaining
references to "the Trustee" in Schedule 2 and 3 shall be deleted and
replaced by the words "AIH".
10. NOTICES
10.1 Any notices to be given by any Party to another Party hereunder shall be
given by letter, telefax or telex to such other Party at the address or
facsimile number (and for the attention of the person) set out below or
such other address or facsimile number (or person) as it may previously
have notified to the other Parties hereto for this purpose.
10.2 The information referred to in Clause 10.1 is:
10.2.1 in the case of the Assignor, Elan Pharma International Limited, Elan
International Services, Ltd, Elan Pharmaceuticals, Inc or Monksland
Holdings B.V.:
Address: c/o Elan International Services, Ltd
102 St James Court
Flatts, Smiths FL04
Bermuda
Facsimile: +1 441 292 2224
Marked for the attention of The President;
10.2.2 in the case of the Assignee:
Address: c/o Amarin Corpporation plc
-4-
7 Curzon Street
London, W1J 5HG
England
Facsimile: +44 20 7499 9004
Marked for the attention of Thomas Lynch; and
10.2.3 in the case of the Company:
Address: 7 Curzon Street
London, W1J 5HG
England
Facsimile: +44 20 7499 9004
Marked for the attention of the Company Secretary.
11. ENTIRE AGREEMENT
This Assignment contains the entire agreement between the parties relating
to the subject matter hereof and supersedes all oral statements and other
writings with respect to the subject matter hereof.
12. GOVERNING LAW AND JURISDICTION
This Assignment shall be governed by, and construed in accordance with
English law.
13. COUNTERPARTS
This Assignment may be executed in one or more counterparts, each of which
shall be an original but all of which, taken together, shall constitute one
and the same instrument.
IN WITNESS WHEREOF this deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date specified above.
-5-
SCHEDULE 1
THE FORMER SECURED PARTIES
ELAN CORPORATION, PLC, a public limited company incorporated in the Republic of
Ireland, whose registered office is at Lincoln House, Dublin 2, Ireland;
ELAN PHARMA INTERNATIONAL LIMITED, a company incorporated in the Republic of
Ireland, whose registered office is at WIL House, Shannon Business Park,
Shannon, Co Clare, Ireland;
ELAN INTERNATIONAL SERVICES, LTD, a Bermuda exempted limited liability company
incorporated under the laws of Bermuda and having its registered office at
Clarendon House, 2 Church Street, Hamilton, Bermuda;
ELAN PHARMACEUTICALS, INC, a corporation duly organised and existing under the
applicable laws of the state of Delaware, having a principal place of business
at 800 Gateway Boulevard, South San Francisco, CA 94080, United States of
America; and
MONKSLAND HOLDINGS BV, a private company limited by shares incorporated in the
Netherlands under registered number 33265127, whose registered office is at
Amsteldijk 166, 1070 Amsterdam, The Netherlands.
EXECUTION PAGES
The Assignor
Executed as a Deed by )
ELAN CORPORATION PLC )
acting by ) ____________________________
and ) ____________________________
acting under the authority of that )
Company and in the presence of: )
Witness's signature:___________________
Name:__________________________________
Address:_______________________________
_______________________________
_______________________________
The Assignee
Executed as a Deed by )
AMARIN INVESTMENT )
HOLDING LTD )
acting by ) ______________________
and ) ______________________
acting under the authority of that )
Company and in the presence of: )
Witness's signature:___________________
Name:__________________________________
Address:_______________________________
_______________________________
_______________________________
The Company
Executed as a Deed by )
AMARIN CORPORATION PLC )
acting by ) ______________________
and ) ______________________
acting under the authority of that )
Company and in the presence of: )
Witness's signature:___________________
Name:__________________________________
Address:_______________________________
_______________________________
_______________________________
The Former Secured Parties
Executed as a Deed by )
ELAN CORPORATION PLC )
acting by ) ______________________
and ) ______________________
acting under the authority of that )
Company and in the presence of: )
Witness's signature:___________________
Name:__________________________________
Address:_______________________________
_______________________________
_______________________________
Executed as a Deed by )
ELAN PHARMA )
INTERNATIONAL LIMITED )
acting by ) ______________________
and ) ______________________
acting under the authority of that )
Company and in the presence of: )
Witness's signature:___________________
Name:__________________________________
Address:_______________________________
_______________________________
_______________________________
Executed as a Deed by )
ELAN INTERNATIONAL| )
SERVICES, LTD )
acting by ) ______________________
)
) ______________________
Executed as a Deed by )
ELAN PHARMACEUTICALS, INC )
acting by ______________________
)
) ______________________
Executed as a Deed by )
MONKSLAND HOLDINGS BV )
acting by ) ______________________
)
) ______________________