Exhibit 4.2
DATED 2000
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(1) AMARIN CORPORATION, PLC
(2) ELAN PHARMACEUTICALS, INC
_____________________________________________________
VARIATION AGREEMENT
re: Amended and Restated
Assets Purchase Agreement dated 29 September, 1999
_____________________________________________________
XXXXXXXXX XXXXXX & XXXXX
000 Xxxxxx Xxxxxx Xxxxxx XX0X 0XX
Ref: MPS/E327-6
Tel: 000 0000 0000
Fax: 000 0000 0000
E-Mail: xxxxxxx.xxxxxxx@xxx.xx.xx
THIS AGREEMENT is made the ___________ day of _______________________ 2000
BETWEEN:-
(1) AMARIN CORPORATION PLC (Registered in England) whose registered office is
at Xxxxxx Xxxxx, Xxxxxxxxxxx'x Xxxx, Xxx, Xxxxxxxxxxxxxx, Xxxxxxx
("Buyer"); and
(2) ELAN PHARMACEUTICALS, INC a Delaware Corporation ("Seller")
NOW THIS DEED WITNESSES as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the "Acquisition Agreement" means the amended and
restated asset purchase agreement dated 29 September 1999 and made between
(1) the Buyer and (2) the Seller.
1.2 Definitions which occur in this Agreement shall have the same meaning as in
the Acquisition Agreement unless otherwise stated or the context otherwise
requires.
1.3 Clause headings are for ease of reference only and shall not affect the
construction of this Agreement.
2. RECITALS
2.1 This Agreement is supplemental to the Acquisition Agreement.
2.2 The Acquisition Agreement provides, inter alia, that Buyer will pay Seller
US$23,200,000 as consideration for the Inventory, payable in two tranches
as to US$16,700,000 on or before 31 December 1999 and as to US$6,500,000 on
or before 29 September 2000 (the "Deferred Payment").
2.3 The parties hereto desire to alter the terms of the Acquisition Agreement
as mentioned below in order that the satisfaction of the Deferred Payment
by the Buyer may be deferred to a date no later than 29 September 2004.
3. VARIATION
It is agreed by the parties hereto that, with retrospective effect from the date
of the Acquisition Agreement, the Acquisition Agreement shall be deemed to be
varied by the deletion of the words "on or before September 29, 2000 (the
"Deferred Payment"); and" from the penultimate line of Article (IV) : Section
4.01(b) and the following words inserted in their stead:-
"(the "Deferred Payment"), forthwith after obtaining such regulatory or
legal consents as may be necessary (including, without limitation,
shareholder approval and/or the approval of the Panel of Takeovers and
Mergers, London) which Buyer hereby agrees to use its reasonable endeavours
to procure as soon as reasonably practicable from the date hereof, by the
allotment and issuance of such equity securities in Buyer at par in favour
of Seller (or Seller's Nominee) of whatever class (including, without
limitation, ordinary shares or preference shares, and whether represented
by
1
American Depository Receipts or otherwise) necessary to satisfy the
Deferred Payment PROVIDED THAT if the Deferred Payment has not been
satisfied on or before September 29, 2004 (of which time shall be of the
essence), the Deferred Payment shall thereafter become without demand due
and payable by Buyer without set-off or counterclaim; and"
4. CONFIRMATION OF THE AGREEMENT
Save as varied by this Agreement, the parties hereto confirm that the
Acquisition Agreement shall continue in full force and effect in all respects.
5. MISCELLANEOUS
5.1 The provisions of Article X : Sections 10.05, 10.06, 10.07, 10.09 and 10.12
of the Acquisition Agreement shall be incorporated into this Agreement
mutatis mutandis.
5.2 This Agreement may be executed in two counterparts, and by the parties on
separate counterparts, but shall not be effective until each party has
executed at least one counterpart. Each counterpart shall constitute an
original of this Agreement, but both counterparts shall together constitute
one and the same instrument.
IN WITNESS whereof this Agreement has been executed by the parties hereto the
day and year first above written.
AMARIN CORPORATION, PLC
By: ______________________________________
Name: [ ]
Title: [ ]
ELAN PHARMACEUTICALS, INC
By: ______________________________________
Name: [ ]
Title: [ ]
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