Exhibit
4.25


 


AMENDMENT
NO. 1

TO

ASSET PURCHASE AGREEMENT


 


This Amendment No.
1 to the Asset Purchase Agreement (the “Amendment”) is made and entered into this 25th day of
February, 2004, by and between Valeant Pharmaceuticals International, a
Delaware corporation (“Buyer”), and Amarin Corporation plc, a public limited
company incorporated in England and Wales (“Amarin”) and Amarin Pharmaceuticals Company
Limited, a limited company incorporated in England and Wales (“APCL”) (Amarin and
APCL being hereinafter from time to time referred to collectively as the “Sellers”).


 


WITNESSETH:


 


WHEREAS, Buyer and
Sellers have previously entered into that certain Asset Purchase Agreement,
dated February 11, 2004 (the “Asset Purchase Agreement”);


 


WHEREAS, Buyer and
Sellers desire to amend the Asset Purchase Agreement to provide for a
re-distribution of certain portions of the Purchase Price to be paid by Buyer
under the Asset Purchase Agreement;


 


NOW, THEREFORE, in
consideration of the premises, the mutual covenants herein contained, and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:


 


ARTICLE 1

DEFINITIONS AND USAGE


 


1.1                               DEFINITIONS


 


For purposes of
this Amendment, capitalized terms used but not otherwise defined in this
Amendment will have the meaning ascribed to such terms


 


1.2                               USAGE


 


(a)                                  Interpretation.  In this Amendment, unless a clear
contrary intention appears:


 


(i)                                     the
singular number includes the plural number and vice versa;


 


(ii)                                  reference
to any Person includes such Person’s successors and assigns but, if applicable,
only if such successors and assigns are not prohibited by this Agreement, and
reference to a Person in a particular capacity excludes such Person in any
other capacity or individually;


 


(iii)                               reference
to any gender includes each other gender;


 


(iv)                              reference
to any agreement, document or instrument means such agreement, document or
instrument as amended or modified and in effect from time to time in accordance
with the terms thereof;


 

















 


(v)                                 reference
to any Legal Requirement means such Legal Requirement as amended, modified,
codified, replaced or reenacted, in whole or in part, and in effect from time
to time, including rules and regulations promulgated thereunder, and reference
to any section or other provision of any Legal Requirement means that
provision of such Legal Requirement from time to time in effect and
constituting the substantive amendment, modification, codification, replacement
or reenactment of such section or other provision;


 


(vi)                              “hereunder,”
“hereof,” “hereto,”  and words of
similar import shall be deemed references to this Agreement as a whole and not
to any particular Article, Section or other provision hereof;


 


(vii)                           “including”
(and with correlative meaning “include”) means including without limiting the
generality of any description preceding such term;


 


(viii)                        “or”
is used in the inclusive sense of “and/or”;


 


(ix)                                with
respect to the determination of any period of time, “from” means “from and
including” and “to” means “to but excluding”; and


 


(x)                                   references
to documents, instruments or agreements shall be deemed to refer as well to all
addenda, exhibits, schedules or amendments thereto.


 


(b)                                 Accounting
Terms and Determinations.  Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with UK GAAP.


 


(c)                                  Legal
Representation of the Parties.  This
Amendment was negotiated by the parties with the benefit of legal
representation, and any rule of construction or interpretation otherwise
requiring this Agreement to be construed or interpreted against any party shall
not apply to any construction or interpretation hereof.


 


ARTICLE 2

AMENDMENTS


 


2.1                               AMENDMENT
TO SECTION 2.7 OF ASSET PURCHASE AGREEMENT


 


Section 2.7
of the Asset Purchase Agreement is hereby amended to read in its entirety as
follows:


 


“2.7API  ADJUSTMENT AMOUNT AND PAYMENT


 


“(a)   As promptly as reasonably practicable
following the Closing, Buyer shall prepare, and Buyer and Amarin shall jointly
agree upon, a balance sheet of API (the “API Closing Balance Sheet”) as of the Closing Date on
the same basis and applying the same accounting principles, policies and
practices as were used in preparing the Pro Forma Closing Balance Sheet (as set
out in Schedule 2.7 hereto). Each of the Buyer and Amarin shall give the
other (or procure that the other has) access, through its employees, agents and
advisers (provided that each party shall be


 


2

















 


entitled, at its option,
to have its Representatives present), to all relevant files and/or working
papers (with the right to take copies) in their possession or control to the
extent that they are required in connection with the preparation and/or review
of the API Closing Balance Sheet. The Buyer shall submit the draft API Closing
Balance Sheet to Amarin for review within 30 calendar days after Closing. Once
accepted by Amarin or otherwise agreed upon by Amarin and Buyer, the API
Closing Balance Sheet shall be binding upon the parties. To avoid potential
duplication between this Section 2.7 and Section 11.3, the API
Closing Balance Sheet shall reflect the completion of the inventory repurchase
under Section 11.3 whether or not the inventory repurchase has in fact
been completed.  In addition, the API
Closing Balance Sheet shall contain the same fair value adjustments in the same
amount as contained in the Pro-Forma Closing Balance Sheet.”


 


2.2  AMENDMENT TO SECTION 11.3 OF ASSET
PURCHASE AGREEMENT


 


Section 11.3
of the Asset Purchase Agreement is hereby amended to read in its entirety as
follows:


 


“11.3                 REDUCTION OF INVENTORY


 


“(a)  As promptly as reasonably practicable after
the execution and delivery of this Agreement, Amarin shall use Best Efforts to
enter into inventory repurchase agreements (the “Repurchase Agreements”) with
each of Quality King Health Care, Cardinal Distribution, Amerisource Bergen and
McKesson Drug Company (collectively, the “Key Wholesalers”) providing for the
repurchase by Amarin at its own cost of certain inventory held by such
distributors.  The Repurchase Agreements
shall be reasonably acceptable to Buyer. 
Under the Repurchase Agreements, Amarin shall seek to repurchase the
quantities of inventory set forth in Schedule 11.3 hereto (the “Designated
Inventory”) at the prices indicated therein; provided, however,
that in Amarin’s sole discretion it may repurchase any portion of the
Designated Inventory at prices exceeding those set forth in Schedule 11.3,
up to a maximum of 10% above the scheduled prices.  To the extent Amarin effects any repurchases at a price higher
than that set forth in Schedule 11.3, the quantity of Designated Inventory
that Amarin shall seek to repurchase from the relevant Key Wholesaler(s) (as
set forth on Schedule 11.3) will be proportionately reduced. Each of the
Repurchase Agreements, and the obligations thereunder of Amarin and the
respective Key Wholesalers, shall be subject to and conditioned upon the consummation
of the Closing under this Agreement (except to the extent any Repurchase
Agreements are entered into after the Closing as contemplated in
Section 11.3(b) below).  The
Repurchase Agreements shall provide that (i) Amarin’s obligation to pay for repurchased
inventory shall be subject to confirmation of the receipt and authenticity of
the applicable inventory to Amarin’s reasonable satisfaction and (ii) Amarin
shall use its Best Efforts to cause any or all repurchased inventory to be
destroyed. The Repurchase Agreements shall give Amarin the option of using
repurchasing agents or other third parties reasonably acceptable to Buyer to
perform any of Amarin’s obligations under this Section 11.3.  Notwithstanding anything herein to the
contrary, in no event shall Amarin be required to pay more than Nine Million
Seven Hundred Fourteen Thousand


 


3

















 


Dollars ($9,714,000) in
performing its obligations under this Section 11.3, which limitation shall
apply to all costs and expenses incurred by Amarin in effecting the repurchase
of Designated Inventory including the costs of repurchase and any
administrative fees, third party costs including fees and expenses of any
repurchasing agent, and costs of destroying repurchased inventory.


 


“(b)  Amarin and Buyer acknowledge and agree that
the Closing hereunder shall not be contingent on Amarin’s ability to enter into
any Repurchase Agreements and the execution of Repurchase Agreements shall not
constitute a condition to the obligation of either party to consummate the
Closing.  In the event that upon Closing
(i) any of the Key Wholesalers has not entered into a Repurchase Agreement
providing for the repurchase of Designated Inventory on the terms contemplated
herein or (ii) Amarin is otherwise unable to obtain Repurchase Agreements for
the repurchase of all or any portion of the Designated Inventory within the
price range specified herein, then the parties shall proceed with the Closing
(subject to the satisfaction of all applicable conditions set forth in this
Agreement), and for a period of 60 days after the Closing Date Amarin shall
continue to use its Best Efforts to enter into Repurchase Agreements in a total
amount not to exceed Nine Million Three Hundred Thousand Dollars ($9,300,000)
with respect to any Designated Inventory not then covered by a Repurchase
Agreement.  Upon the expiration of such
60-day period, Amarin’s obligation to effect the Repurchase Agreements under
this Section 11.3 shall automatically terminate and Amarin shall have no
further obligations whatsoever hereunder (other than its obligations under any
Repurchase Agreements then in effect), provided that thereafter Amarin
shall pay to Buyer the following amounts: 
(i) within twenty (20) days following the expiration of such 60-day
period, Amarin shall pay Buyer an amount equal to the difference between (A)
Nine Million Three Hundred Thousand Dollars ($9,300,000) and (B) the aggregate
amount of costs and expenses incurred by Amarin as of such date in performing
its obligations under this Section 11.3; and (ii) upon Successful
Completion of the Zelapar R&D Studies in accordance with
Section 2.2.(a), and only then, Amarin shall repurchase an additional Four
Hundred Fourteen Thousand Dollars ($414,000) of inventory in accordance with
Section 11.3(a).


 


“(c)  In
addition to the foregoing, within sixty (60) days of Closing, Amarin shall pay
a total of $1.2 million to certain of the Key Wholesalers to reduce or
eliminate the credit balances claimed to be due to such Key Wholesalers, as
shown on Schedule 4.8, provided that if Amarin does not pay the
full $1.2 million to the Key Wholesalers in accordance herewith within such
sixty (60) day period, then Amarin shall immediately pay the unexpended portion
of such $1.2 million to Buyer.”


 


2.3                               AMENDED
SCHEDULES


 


The following revisions are made, effective as of the date of this
Amendment, to the Schedules attached to the Asset Purchase Agreement:


 


Schedule 3.6:  an
additional item 7 is added:  During
2003, following the introduction of generic pergolide into the market, Amarin
discontinued its indigent patient assistance program.


 


4

















 


Schedule 3.9:  The column
heading reference to “Amarin” owning NDA/ANDAs (unless otherwise noted) should
be to API.


 


Schedule 4.16:  The final
Lilly settlement amount is revised to $928,646.20.


 


Schedule 4.20:  The
severance benefit reference for Steve Guillen should be to Note 3.


 


Schedule 11.3:  The schedule for Designated Inventory
is amended in its entirety to read as attached to this Amendment.


 


2.4                               NO
OTHER AMENDMENTS


 


Except as amended
by this Amendment, all other provisions of the Asset Purchase Agreement remain
unmodified and in full force and effect.


 


ARTICLE 3

GENERAL PROVISIONS


 


3.1                               SEVERABILITY


 


If any provision
of this Amendment is held invalid or unenforceable by any court of competent
jurisdiction, the other provisions of this Amendment will remain in full force
and effect.  Any provision of this
Amendment held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.


 


3.2                               GOVERNING
LAW


 


This Agreement
will be governed by and construed under the laws of the State of California
without regard to conflicts-of-laws principles that would require the
application of any other law.


 


3.3                               EXECUTION
OF AMENDMENT


 


This Amendment may
be executed in one or more counterparts, each of which will be deemed to be an
original copy of this Amendment and all of which, when taken together, will be
deemed to constitute one and the same agreement.  The exchange of copies of this Amendment and of signature pages
by facsimile transmission shall constitute effective execution and delivery of
this Amendment as to the parties and may be used in lieu of the original
Amendment for all purposes.  Signatures
of the parties transmitted by facsimile shall be deemed to be their original
signatures for all purposes.


 


5

















 


IN WITNESS
WHEREOF, the parties have executed this Agreement as of the date first written
above.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  AMARIN
  CORPORATION PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  AMARIN
  PHARMACEUTICALS COMPANY

  LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  VALEANT
  PHARMACEUTICALS

  INTERNATIONAL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


6

















 


SCHEDULE 11.3


 


Designated
Inventory


 


	
  Wholesaler

  	
   

  	
   

  	
  Units

  	
   

  	
  WAC /

  Purchase

  Price

  	
   

  	
  Acquisition
  cost

  	
   

  	
  Service
  fee

  	
   

  	
  Total Cost

  	
   

  
	
  QK

  	
  Phrenilin 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Phrenilin 500’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Phrenilin Forte 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Phrenilin Forte 500’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Permax 0.05mg 30’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Permax 0.25mg 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Permax 0.25mg 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Permax 1mg 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Bontril PDM 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Bontril PDM 1000’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Bontril SR 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  QK

  	
  Nolahist 24’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  McKesson
  1-4-04

  	
  Permax 0.05mg 30’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  McKesson
  1-4-04

  	
  Permax 0.25mg 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  McKesson
  1-4-04

  	
  Permax 1.0mg 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  Bergen
  12/23/03

  	
  Permax 0.05mg 30’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  Bergen
  12/23/03

  	
  Permax 0.25mg 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  Bergen
  12/23/03

  	
  Permax 1.0mg 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  Cardinal

  	
  Permax 0.05mg 30’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  Cardinal

  	
  Permax 0.25mg 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
  Cardinal

  	
  Permax 1.0mg 100’s

  	
   

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  	
  [  * 
  ]

  	
  %

  	
  $

  	
  [  * 
  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Total Acquisition Cost

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Freight

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Total Disposal Cost

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Total Cost

  	
   

  	
  $

  	
  [  * 
  ]

  	
   

  



 


Note:  The total quantity purchased will vary as a
function of the available product and negotiated price within individual accounts