DATED 19 December 2007
Exhibit
99.2
(1) AMARIN
CORPORATION PLC
(2) XXXXXXX
XXXXXXX
WITHOUT
PREJUDICE AND SUBJECT TO CONTRACT
|
Xxxxxxxxxxx
&
Xxxxxxxx
Xxxxxxx Xxxxx Xxxxx LLP
000 Xxxxxx Xxxxxx Xxxxxx XX0X 0XX
Tel: x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000
XXX/6002745.00081
Xxxxxxx Xxxxx Xxxxx LLP
000 Xxxxxx Xxxxxx Xxxxxx XX0X 0XX
Tel: x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000
XXX/6002745.00081
THIS
AGREEMENT is made on the 19th
day of December
2007
BETWEEN:
(1)
|
AMARIN
CORPORATION PLC whose registered office is 000 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX ("the Company");
and
|
(2)
|
XXXXXXX
XXXXXXX of 00 Xx Xxxxxx’s Road, Twickenham, Middlesex TW1 1QR
("the Employee").
|
WHEREAS:
(A)
|
The
Employee was employed by the Company initially as President and Chief
Operating Officer and later as Chief Executive Officer pursuant to
the
terms of the Contract of
Employment.
|
(B)
|
The
Employee's employment will terminate on the date
hereof.
|
(C)
|
The
Company and the Employee have agreed the terms set out in this Agreement
in settlement of the Claims and all and any other claims which the
Employee has or may have against the Company or any Associated Companies
or against any employees or officers of any such company arising
out of or
in connection with or as a consequence of the Employee's employment
or its
termination (save in relation to any claims for personal injury and
accrued pension rights).
|
(D)
|
The
Company is entering into this Agreement on its own behalf and as
trustee
for any Associated Company.
|
DEFINITIONS
In
this
Agreement the following words and expressions shall have the following
meanings:-
Expression Meaning
|
"Act"
|
the
Companies Xxx 0000
|
|
"Associated
Company"
|
(i)
|
any
Holding Company of the Company; or
|
|
(ii)
|
any
Subsidiary of any such Holding Company;
or
|
-2-
|
(iii)
|
a
body corporate (within the meaning of Section 740 of the
Act):
|
|
(a)
|
of
which any one or more of the Company and any bodies corporate within
(i)
or (ii) of this definition beneficially owns at least 25% in nominal
value
of any class of equity share capital (within the meaning of Section
744 of
the Act) carrying the right to vote in all circumstances at general
meetings; or
|
|
(b)
|
which
is directly or indirectly controlled by the Company;
or
|
|
(c)
|
which
directly or indirectly controls the Company;
or
|
|
(d)
|
which
is directly or indirectly controlled by a third party who also directly
or
indirectly controls the Company; or
|
|
(e)
|
of
which the Company or an Associated Company is a
partner
|
"the
Bonus"
|
the
sum of £125,000 in respect of the 2007 performance
year
|
"the
Claims"
|
those
allegations and/or potential claims referred to in Clauses 6.1 and
6.3
below
|
"the
Contract of Employment"
|
the
contract of employment between the Company and the Employee dated
23
November 1998 as amended by a Deed of Variation dated 5 April 2004
and
supplemented by an Addendum dated 26 February
2007
|
-3-
"the
Qualified Lawyer"
|
Xxx
Xxxxxxx of Nabarro of Xxxxx Xxxxx, 00 Xxxxxxxx'x Xxxx, Xxxxxx XX0X
0XX
|
"Subsidiary"
and "Holding Company"
|
have
the respective meanings given to them by Sections 736 and 736A of
the Act
and any reference to the Subsidiary or Subsidiaries or Holding Company
is
(unless inconsistent with the context) intended to be a reference
to the
Subsidiary or Subsidiaries or Holding Company respectively of the
Company
in question at the relevant time
|
"the
Termination Date"
|
the
date hereof
|
"the
Termination Payment"
|
the
sum of £277,500 free of deductions for tax or national insurance in
respect of the first £30,000.
|
THE
COMPANY AND THE EMPLOYEE have agreed as follows:
1.
|
PAYMENTS
|
1.1
|
The
Employee's employment will terminate on the Termination Date and
the
Company will issue and send a form P45 to the
Employee.
|
1.2
|
The
Employee will receive his salary and other contractual benefits up
to the
Termination Date on the usual basis (subject to the normal deductions
for
income tax and employees’ national insurance contributions) on the
Company's next payroll date following the Termination
Date.
|
1.3
|
The
Company shall reimburse the Employee for all business expenses properly
and reasonably incurred by him up to the Termination Date, subject
to his
compliance with the Company's rules and procedures relating to expenses
and the production of satisfactory VAT
receipts.
|
1.4
|
The
Company will, without any admission of liability whatsoever and on
behalf
of itself or any Associated Companies, pay to the Employee within
12 days
of the date of this Agreement or the Termination Date (whichever
is the
later) the Termination Payment and the Bonus, as compensation for
the
termination of his employment and for loss of office and in full
and final
settlement of the Claims and all other claims which the Employee
has or
may have (whether now or at any time in the future) against the Company
or
any Associated Company arising out of his employment or the termination
thereof. The first £30,000 of the Termination Payment shall be paid
without deduction of income tax or employees’ national insurance
contributions and the remaining £247,500 shall be paid after such
deductions. For the avoidance of doubt the Company will deduct
income tax from the £247,500 at the basic
rate.
|
-4-
1.5
|
The
Company will pay the Employee within 12 days of the date of this
Agreement
or the Termination Date (whichever is the later) the sum of £10,673 in
respect of 10 days accrued but untaken holiday
entitlement.
|
1.6
|
The
company will pay within 12 days of the date of this Agreement or
the
Termination Date (whichever is the later) into a personal pension
plan
nominated by the Employee £37,338 in respect of accrued pension
entitlement up to the Termination
Date.
|
2.
|
TAX
LIABILITIES
|
2.1
|
The
Employee shall be responsible for all tax liabilities and employee
national insurance contributions which are due in respect of the
Termination Payment and any benefits provided to the Employee under
this
Agreement (other than for any tax or employees’ national insurance
contributions deducted by the Company at source) (the "Tax Liabilities")
and the Employee shall indemnify the Company and hold the Company
harmless
against all Tax Liabilities in respect of which the Company is obliged
to
account to HM Revenue and Customs pursuant to the PAYE Regulations
at any
time and all costs, claims, expenses or proceedings, penalties and
interest incurred by the Company which arise out of or in connection
with
any obligation to pay (or deduct) such Tax
Liabilities.
|
2.2
|
The
Company will notify the Employee in writing of any Tax Liabilities,
costs,
claims, expenses or proceedings, penalties and interest which arise
out of
or in connection with any obligation to pay (or deduct) such Tax
Liabilities and will give the Employee a reasonable amount of time
to make
representations to HM Revenue and Customs at his own expense and
with the
reasonable co-operation of the Company prior to making any payment
demanded by HM Revenue and Customs provided the Company does not
become
liable for any further costs, claims, expenses or proceedings, penalties
and interest by any delay in payment to HM Revenue and Customs and
in the
event of any such risk the Company reserves the right to settle any
payment demanded by HM Revenue and Customs without any prejudice
to the
indemnity in clause 2.1.
|
3.
|
COMPANY
PROPERTY
|
3.1
|
The
Employee undertakes as soon as practicable after the date of this
Agreement or the Termination Date (whichever is the later) to return
all
documents and correspondence, business equipment or any other property
whatsoever belonging to or relating to the business of the Company
or any
Associated Company save as provided for at Clauses 3.2 to 3.4 but
including any security fobs or keys, company credit cards, computer
peripherals, software, client lists, employee details, financial
or
business information, trading history or other confidential information
howsoever stored which the Employee has or has had in his possession
or
under his control. The Employee's obligations under this clause
shall be deemed to include a return of all copies, drafts, reproductions,
notes, extracts, or summaries (howsoever made) of the
foregoing. The Employee shall, if requested by the Company,
confirm in writing his compliance with his obligations under this
clause. The Employee warrants that he has not made or retained
copies of or extracts from documents or any notes of or information
relating to the business of the Company or any Associated
Company.
|
3.2
|
The
Employee will be allowed to keep his mobile phone and its phone number
on
condition that he will be responsible for all costs and liabilities
in
respect of the mobile phone from 18 December 2007 and the Company
agrees
to transfer the mobile phone contract to the Employee within 28 days
of
the date of this Agreement and provide the Employee with written
confirmation that it has done so.
|
-5-
3.3
|
The
Employee will be allowed to keep his laptop computer on the condition
that
the Company collects it from the Employee’s home address within 7 days of
the date of this Agreement in order to delete from it all information
and
files relating to the Company. The laptop will be returned to
the Employee as soon as reasonably practicable once this has been
done.
|
3.4
|
The
Employee will be allowed to keep his blackberry and the Company will
arrange for emails sent to the Employee's Company email address to
be
forwarded to the Employee's home email or blackberry address for
1 month
following the Termination Date provided at all times the Company
will
reply directly to those emails where appropriate after the Termination
Date.
|
4.
|
OPTIONS
|
4.1
|
The
Employee currently holds share options (“Options”) under
the Company’s 2002 Stock Option Plan (“the Plan”) and the
Employee’s Options which have vested as at the Termination Date
(“Vested Options”) are set out in Schedule 1 to this
Agreement. The Employee hereby confirms that Schedule 1 sets
forth an accurate calculation of the Employee’s Vested
Options.
|
The
Employee and the Company agree and acknowledge that:
|
(a)
|
the
Employee’s Vested Options will be exercisable for a period of 12 months
following the Termination Date in accordance with the terms of the
Plan
and upon the expiration of such 12 month period, the Employee’s Vested
Options shall cease to be exercisable and shall expire;
and
|
|
(b)
|
the
Employee’s Options which have not vested as at the Termination Date will
not vest and will not become exercisable after the Termination Date
and
accordingly, will expire on the Termination
Date.
|
5.
|
CONFIDENTIALITY
AND POST-TERMINATION
COVENANTS
|
5.1
|
Save
in relation to a disclosure relating to the filing of this Agreement
as
provided for under clause 5.4 the Employee and the Company agree
to keep
the existence and terms of this Agreement and the circumstances concerning
the termination of the Employee's employment and those giving rise
to,
connected with or concerning the Claims confidential, save where
such
disclosure is to HM Revenue and Customs, required by applicable laws,
or
the rules of the NASDAQ, AIM or IEX Stock Markets, to give effect
to the
terms of this Agreement or (where necessary or appropriate)
to:
|
(a)
|
the
Employee’s spouse, civil partner or partner, immediate family or legal or
professional advisers, provided that they agree to keep the information
confidential; or
|
(b)
|
the
Employee’s insurer for the purposes of processing a claim for loss of
employment; or
|
(c)
|
the
Employee’s recruitment consultant or prospective employer to the extent
necessary to discuss his employment history;
or
|
(d)
|
directors
or officers, funders or investors (actual or potential) in any Associated
Company; or
|
(e)
|
the
Company or Associated Company's legal or professional advisers or
reporting accountants or auditors.
|
-6-
5.2
|
The
Employee undertakes not to make or cause to be made (directly or
indirectly):
|
(a)
|
any
derogatory or disparaging statement about the Company, any Associated
Company or any of its or their directors or officers, employees or
shareholders; or
|
(b)
|
save
as provided in clause 5.1, any comment to the press or other media
or any
other public statement concerning his employment with the Company,
or its
termination, without the prior written consent of the Company such
consent
not to be unreasonably refused.
|
5.3
|
The
Company undertakes not to make or cause to be made (directly or
indirectly):
|
(a)
|
any
derogatory or disparaging statement about the Employee;
or
|
(b)
|
save
as provided in clause 5.1, any comment to the press or other media
or any
other public statement concerning the Employee's employment with
the
Company, or its termination; without the prior written consent of
the
Employee such consent not to be unreasonably
refused.
|
5.4
|
The
Employee and the Company acknowledge that this Agreement will be
filed by
the Company with the United States Securities and Exchange Commission
upon
the execution thereof.
|
5.5
|
In
consideration of the payment by the Company to the Employee of £500 (less
tax and national insurance) within 12 days of the date of this Agreement
or the Termination Date (whichever is the later), the Employee agrees
to
affirm and comply with his continuing duty of confidentiality as
set out
in the Addendum to Amarin Executive Employment Contract which he
signed on
26 February 2007.
|
For
this
purpose, the Employee agrees that “Confidential Information” is defined as any
proprietary information of the Company, including, without limitation,
information relating to products, processes, services, businesses, personnel,
research, financial strategies and activities, commercial strategies and
activities, formulas, materials, compounds, substances, programmes, devices,
concepts, inventions, patents, designs, methods, techniques, intellectual
property, marketing strategies, data, trade secrets, know-how, plans,
operations, tests, studies, manuals, market reports, customers, financial
status, cash flow projections and the like or any other matter connected with
the business of the Company, or any of its suppliers, partners or customers
related to the Company or its business.
5.6
|
In
consideration of the payment by the Company to the Employee of £500 (less
tax and national insurance) within 12 days of the date of this Agreement
or the Termination Date (whichever is the later), the Employee agrees
to
comply with the post termination restrictions as set out in Schedule
2.
|
5.7
|
The
Company confirms that the terms of the Deed of Indemnity dated 29
September 2005 providing an indemnity in the Employee’s favour during any
period in which the Employee was a director of the Company will
notwithstanding the provisions of this Agreement or otherwise remain
in
full force and effect without limit in time following the Termination
Date.
|
-7-
6.
|
SETTLEMENT
AND WAIVER
|
6.1
|
The
purpose of this Agreement is to settle fully and finally any claims
(save
in relation to any claims for personal injury and accrued pension
rights)
the Employee may have whatsoever arising from his employment or period
of
employment with the Company or any Associated Company including without
limitation any claim within clause 6.3 below, it not being admitted
by the
Company (either for itself or any Associated Company) that he has
any such
claim.
|
6.2
|
The
terms contained in this Agreement are in full and final settlement
of the
Claims and the Employee represents to the Company that he accepts
and he
does hereby accept the terms of this Agreement in full and final
settlement of the Claims.
|
6.3
|
The
Employee represents to the Company that he accepts and he does hereby
accept the terms of this Agreement in full and final settlement of
any
claims that he has or may have against the Company or any Associated
Company relating to his employment, the termination of his employment
or
any other matter including (without limitation) any action that might
be
commenced before an Employment Tribunal or Court of law in respect
of any
and all of the following claims:
|
(a)
|
any
common law claims, including any claim for breach of contract or
tort;
|
(b)
|
unfair
or constructive dismissal under the Employment Rights Xxx
0000;
|
(c)
|
unlawful
deductions from wages under the Employment Rights Xxx
0000;
|
(d)
|
any
other claim under the Employment Rights Xxx
0000;
|
(e)
|
any
claim which arises under the:
|
(i)
|
Sex
Discrimination Xxx 0000;
|
(ii)
|
Race
Relations Xxx 0000;
|
(iii)
|
Disability
Discrimination Xxx 0000;
|
(iv)
|
Public
Xxxxxxxx Xxxxxxxxxx Xxx 0000;
|
(v)
|
Human
Rights Xxx 0000;
|
(vi)
|
Data
Protection Xxx 0000;
|
(vii)
|
Employment
Relations Xxx 0000;
|
(viii)
|
Employment
Xxx 0000;
|
(ix)
|
Employment
Equality (Religion or Belief) Regulations
2003;
|
(x)
|
Employment
Xxx 0000 (Dispute Resolution) Regulations
2004;
|
(xi)
|
Transfer
of Undertakings (Protection of Employment) Regulations
2006;
|
(xii)
|
Employment
Equality (Age) Regulations 2006;
and
|
(f)
|
any
other statutory claims.
|
-8-
6.4
|
The
Employee warrants and further represents that the claims referred
to at
sub-clause 6.3 are all of the claims that have
been contemplated by the Employee.
|
6.5
|
For
the purposes of clause 6.3, "claims" shall
include any claim or right of action arising from a subsequent
retrospective change or clarification of the law. The Employee
acknowledges that he agrees to the terms of clause 6.3 notwithstanding that he acknowledges
that he
may be mistaken as to the facts and/or the law concerning any potential
claim or right of action.
|
6.6
|
Any
claims in respect of any pension rights or pension benefits which
have
accrued to the Employee up to the Termination Date and any future
claims
for personal injury of which the Employee is currently unaware are
excluded from this Agreement. The Employee warrants that as at the
date of
this Agreement, he is not aware of any such pension or personal injury
claim against the Company or any Associated
Company.
|
6.7
|
The
Employee hereby agrees that, except for sums and benefits referred
to in
this Agreement, no other sums or benefits are due to him from the
Company
or any Associated Company.
|
6.8
|
The
Employee acknowledges that the compromise of each of the claims set
out in
clauses 6.1 and 6.3 is and
shall be construed as separate and
severable (including in relation to each of the types of claim covered
by
the definition of "claims" in clause 6.5) and
in the event of the compromise of any such claim being determined
as being
void for any reason, such invalidity shall not affect or impair the
validity of the compromise of the other
claims.
|
6.9
|
The
Employee warrants that he has not at any time committed a breach
of his
contract of employment which would entitle the Company to terminate
his
employment without notice.
|
6.10
|
The
Employee confirms that he enters into the warranties in clauses 6.4 and 6.9 above
having taken advice from the Qualified Lawyer on the statutory claims
and
prospective entitlement to bring statutory proceedings which he has
or may
have against the Company, or any Associated Company, its or their
employees, officers or
shareholders.
|
6.11
|
The
Employee acknowledges that the Company has agreed these terms in
reliance
on the warranties and representations set out above. In the
event that, notwithstanding the provisions of this Agreement, the
Employee
brings any claim or proceedings, (whether statutory or otherwise),
relating to his employment with the Company or any Associated Company,
or
the termination thereof, against the Company, any Associated Company,
its
or their employees, officers or shareholders, (whether in an Employment
Tribunal, the High Court, a County Court or otherwise), (excluding
claims
to enforce the provisions of this Agreement or relating to any claim
for
personal injury or pension rights or pension benefits which have
accrued
to the Employee up to the Termination Date), the Employee agrees
that he
will repay to the Company on demand and in full by way of liquidated
damages an amount equal to the
Bonus.
|
This
sum
shall be recoverable as a debt, together with all costs, including legal costs,
reasonably incurred by the Company in recovering the sum and/or in relation
to
any claims or proceedings so brought by the Employee and together with interest
thereon for the period commencing on the date the sum was paid to the Employee
and ending on the date the Company receives repayment of such monies in full,
such interest to be calculated at the prevailing National Westminster Bank
Base
Rate published on the date the said sum was paid to the Employee.
-9-
7.
|
STATUTORY
PROVISIONS ON COMPROMISE
AGREEMENTS
|
7.1
|
The
Employee represents and warrants
that:
|
(a)
|
He
has received independent legal advice from the Qualified Lawyer as
to the
terms and effect of this Agreement and, in particular, its effect
on the
Employee's ability to pursue his rights before an Employment Tribunal;
and
|
(b)
|
The
Employee is advised by the Qualified Lawyer that there is, and was
in
force at the time the Employee received the advice referred to above,
insurance under a policy of professional indemnity insurance covering
the
risk of a claim by the Employee in respect of loss arising in consequence
of that advice.
|
7.2
|
The
Employee agrees to provide a copy of the Solicitor's Certificate
attached
at Schedule 3 to this Agreement, signed by the Qualified Lawyer,
to the
Company on the date of this
Agreement.
|
7.3
|
The
Company and the Employee agree and acknowledge that this Agreement
satisfies the conditions for regulating compromise agreements under
Section 203(3) Employment Rights Xxx 0000 (as amended), Section 77(4A)
Sex
Discrimination Xxx 0000 (as amended), Section 72(4A) Race Relations
Xxx
0000, Section 17C(2) Disability Discrimination Xxx 0000, Schedule
4
paragraph 2(2) Employment Equality (Religion or Belief) Regulations
2003,
Schedule 5 paragraph 2(2) Employment Equality (Age) Regulations 2006
and
Regulation 18 Transfer of Undertakings (Protection of Employment)
Regulations 2006.
|
8.
|
COSTS
|
The
Company shall pay all of the Employee's legal costs plus VAT, provided
that:
(a)
|
the
Qualified Lawyer provides the Company with written confirmation that
such
legal costs were incurred solely in advising the Employee regarding
the
termination of his employment and the preparation of this Agreement;
and
|
(b)
|
payment
is made by the Company directly to Nabarro against receipt of a copy
of an
invoice from those solicitors addressed to the Employee but marked
payable
by the Company.
|
9.
|
REFERENCE
AND TRAVEL
|
9.1
|
The
Company agrees that it will, upon receipt of a written request from
a
potential employer, provide a reference in the form attached at Schedule
4
to this Agreement. The Company will provide a verbal reference in
terms
consistent with the wording in Schedule
4.
|
9.2
|
The
Company agrees to reimburse the Employee in respect of 2 return business
trips to the United States of America in the 12 month period following
the
Termination Date on condition that the total cost of those business
trips
shall not exceed £10,000 and on the production of satisfactory receipts,
such expenses claims to be settled by the Company within 28 days
of the
Employee submitting such a claim.
|
-10-
10.
|
ANNOUNCEMENT
|
The
Company will announce to their staff and if asked will advise any third party
of
the Employee's departure in the form attached at Schedule 5 to this
Agreement.
11.
|
RESIGNATION
FROM OFFICE
|
The
Employee hereby agrees to resign his position as a director, officer or trustee
in the Company and any Associated Companies with immediate affect by signing
and
delivering to the Company on the Termination Date the resignation letters
attached at Schedules 6 and 6A to this Agreement. The Employee also
agrees to sign any additional documentation and co-operate with any Companies
House or other corporate filings which may be necessary following the
Termination Date to give effect to the Employee’s resignation as Chief Executive
Officer and as a director.
12.
|
WHOLE
AGREEMENT
|
The
parties to this Agreement agree and acknowledge that this Agreement sets out
the
entire agreement between them and supersedes all previous discussions between
them and their advisers and all statements, representations, terms and
conditions, warranties, guarantees, proposals, communications and understandings
(if any) whenever given and whether orally or in writing, all of which are
hereby treated as terminated by mutual consent.
13.
|
GOVERNING
LAW ETC
|
13.1
|
This
Agreement shall be governed by and construed in accordance with the
laws
of England and the English courts shall have exclusive jurisdiction
for
all purposes connected with this
Agreement.
|
13.2
|
This
Agreement is "without prejudice" until it is signed by all the signatories
indicated below at which point it will become open and
binding.
|
14.
|
THIRD
PARTIES
|
The
Contracts (Rights of Third Parties) Xxx 0000 shall apply to this Agreement
to
the extent (but no more) than set out in this clause. Any third party
or Associated Company shall be entitled to enforce the benefits conferred on
it
by clauses 3, 4.2 and 5.3 of this Agreement. The consent of a third
party shall not be required for the variation or termination of this Agreement,
even if that variation or termination affects the benefits conferred on any
third party.
SIGNED
/s/ Xxxxxx X. Xxxxx…………………………………………………………
XXXXXX
XXXXX
For
and
on behalf of the Company
DATED 19
December, …………………………………………………………… 2007
SIGNED /s/
Xxxxxxx Xxxxxxx……………………………………………………………
XXXXXXX
XXXXXXX
DATED 19
December,……………………………………………………………… 2007
-11-
Share
Options Vested as at the Termination Date
XXXX
XXXXXXX
|
||
STOCK
OPTIONS VESTED AS AT TERMINATION DATE
|
||
|
|
Number
of
|
|
Exercise
|
Options
|
|
Price
|
Vested
as at
|
Date
of grant
|
$
|
Termination
Date
|
23-Nov-98
|
5.000
|
100,000
|
23-Nov-98
|
5.000
|
250,000
|
23-Jan-02
|
17.650
|
150,000
|
06-Nov-02
|
3.100
|
150,000
|
10-Jun-05
|
1.3000
|
150,000
|
16-Jan-06
|
1.950
|
100,000
|
08-Dec-06
|
0.440
|
266,666
|
Total
|
|
1,166,666
|
-12-