Exhibit
4.39


 


EXECUTION COPY


 


 


Date: 23
December 2003


 


 


AMARIN CORPORATION PLC.


 


AND


 


ELAN PHARMACEUTICALS, INC.


 


 


BRIDGING LOAN
AGREEMENT


 

















 


INDEX


 


	
  1.

  	
  DEFINITIONS AND INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  BRIDGING LOAN

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  FACILITY FEES

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  COVENANT AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  EVENTS
  OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  CHARGE COVERS BRIDGING LOAN

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  TAXES

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  FURTHER
  ASSURANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  COUNTERPARTS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  GENERAL

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  ASSIGNMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  GOVERNING LAW, JURISDICTION

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1

  	
  STATEMENTS SUPPORTING REQUEST

  	
   

  



 

















 


THIS
BRIDGING LOAN AGREEMENT
is made the 23rd December 2003


 


BETWEEN:


 


(1)                                 AMARIN CORPORATION PLC, a company incorporated in England and Wales
(registered no. 002353920), whose registered office is 7 Curzon Street, London,
WIJ 5HG, England (“Amarin”); and


 


(2)                                 ELAN PHARMACEUTICALS, INC.,  a
corporation duly organized and existing under the applicable laws of the State
of Delaware, having a principal place of business in South San Francisco,
California (“Elan”).


 


The
parties agree as follows:


 


1.                                           DEFINITIONS AND INTERPRETATION


 


1.1.                                   In this
Agreement the following terms have the meanings given to them in this Clause
1.1.


 


“Affiliate” means any company or
non-corporate entity that controls, is controlled by, or is under common
control with a party.  An entity shall
be regarded as in control of another company or entity if it owns or directly
or indirectly controls more than 50 per cent. of the voting rights of the other
company or entity.


 


“this Agreement” means this Bridging Loan
Agreement.


 


“Amendment Agreement” means the amendment
agreement between Elan Corporation, plc., Elan Pharma International Limited,
Elan International Services, Ltd., Elan, Monksland Holdings B.V. and Amarin of
the same date as this Agreement.


 


“Available Facility Amount” means $6,000,000
(six million dollars), less:


 


(a)                                       such
advances referred to in Clause 2.2.1 as are not requested or not granted,
provided that this deduction shall only apply on and after the date on which
they may have been advanced; and


 


(b)                                      such
advances referred to in Clause 2.2.1 as are both drawn down by Amarin and
repaid to Elan, as from the date of their repayment.


 


“Average Outstanding Amount” shall mean the
simple average Relevant Amounts for the applicable period.


 


“Business Day” means a day (other than a
Saturday or a Sunday) on which banks are generally open for business in London.


 


“Charge Amendment” shall have the same
meaning as in the Master Agreement.


 


1

















 


“Demandable Date” shall have the same
meaning as in the Master Agreement.


 


“Elan Agreement(s)” shall have the same
meaning as in the Master Agreement.


 


“First Loan Agreement” means that certain loan
agreement dated 28 September 2001 between Amarin and Elan, as varied by (i) a
Deed of Variation dated 19 August 2002, (ii) a Deed of Variation No. 2 dated 23
December 2002, (iii) a Deed of Variation No. 3 dated 27 January 2003, (iv) a
Deed of Variation No. 4 dated 4 August 2003, and (v) the Amendment Agreement.


 


“Group” means Amarin and its subsidiaries
for the time being.


 


“LIBOR” means, in relation to any amount to
be advanced to or owing by Amarin under this Agreement on which interest for a
given period is to accrue, the percentage rate per annum at which Barclays Bank
PLC was offering to prime banks in the London interbank market deposits in
dollars for such period at or about 11.00 am on the day on which quotations
would ordinarily be given by prime banks in the London interbank market for
deposits in dollars for delivery on the first day of that period, provided that, if for any such period
quotations would ordinarily be given on more than one date, the relevant date
shall be the last of those dates.


 


“Bridging Loan” means all amounts drawn down
by Amarin under Clause 2.2.


 


“Master Agreement” means that certain
Amended and Restated Master Agreement dated 4 August 2003 between Elan
Corporation, plc., Elan Pharma International Limited, Elan International
Services, Ltd., Elan, Monksland Holdings B.V. and Amarin, as amended by the
Amendment Agreement.


 


“Relevant Amounts” shall mean the sum of $31,500,000 less any
sum(s) paid to Elan (or any of its Affiliates) under Clause 7 of the Master
Agreement (including for the avoidance of doubt the sum of $11,102,071 so paid
prior to the date of this Agreement), plus the Available Facility Amount.


 


“Permitted Indebtedness” means:


 


(a)                                       indebtedness
arising under the First Loan Agreement which is not yet due;


 


(b)                                      indebtedness
to trade creditors arising in the ordinary course of business; and


 


(c)                                       indebtedness
incurred in association with any refinancing of the Bridging Loan.


 


1.2.                                   The
headings in this Agreement shall not affect its interpretation.


 


2

















 


2.                                           BRIDGING LOAN


 


2.1.                                   Grant of the Bridging Loan


 


Subject
to Clause 2.2, Elan agrees to lend to Amarin the sum of US$6,000,000 (six
million dollars).


 


2.2.                                   Draw down


 


2.2.1          Amarin may
request Elan to advance any or all of the following sums:


 


2.2.1.1                                  US$2,000,000
(two million dollars) on 1 January 2004;


 


2.2.1.2                                  US$2,000,000
(two million dollars) on 1 February 2004;


 


2.2.1.3                                  US$2,000,000
(two million dollars) on 1 March 2004.


 


2.2.2          Any such
request must:


 


2.2.2.1                                  be made in
writing no less than 7 (seven) Business Days before the applicable date;


 


2.2.2.2                                  state the
purpose(s) for which Amarin proposes to use the advance in question in
reasonable detail;


 


2.2.2.3                                  summarise
Amarin’s cash position as at the date of provision, as anticipated to be at the
date of drawdown and for the following three months;


 


2.2.2.4                                  provide
supporting information so that Elan may reasonably assess the prospect of the
Relevant Amounts (together with the Bridging Loan and the proposed advance)
being repaid by 31 March 2004; and


 


2.2.2.5                                  be
accompanied by a certificate from an officer of Amarin attesting to his/her
best knowledge and belief, having made diligent enquiry, as to the statements
in Schedule 1.


 


2.2.3                             If Elan,
in its absolute discretion, determines that it is likely that the Outstanding
Amounts (including the proposed advance) will be repaid by 31 March 2004, Elan
shall, subject to Clause 2.3, advance the applicable sum in US$ by wire
transfer to Amarin’s nominated account.


 


2.2.4                             In making
its determination, Elan agrees to discuss the prospects of Amarin’s likely
ability to repay with Amarin and its professional advisers, upon reasonable
request; but the determination is at Elan’s sole discretion.  Elan shall not be obliged to provide reasons
in the case of such a refusal.


 


2.2.5                             Upon each
request, Amarin shall be deemed to represent and warrant to Elan that each of
the statements in Schedule 1 is correct.


 


For
the avoidance of doubt, this representation and warranty is additional to the
officer’s certificate referred to in Clause 2.2.2.5.


 


3

















 


Each
such representation and warranty shall be deemed repeated upon the making of
the actual advance of the sum in question (if any), except to the extent that
Amarin fairly qualifies the same by written notice to Elan, before the date of
advance.  “Fairly” shall for the
purposes of this paragraph mean clearly, accurately and in such manner and
detail as would enable Elan to make an informed decision as to the matters to
which it relates.


 


2.3.                                   Draw Down Stop


 


2.3.1                             If:


 


(a)                                       there is
an Event of Default; or


 


(b)                                      Amarin
breaches any representation and/or warranty given in or pursuant to this
Agreement -


 


Elan
shall not be obliged to make any further advance to Amarin.


 


2.3.2                             Any
advance made by Elan in such circumstances will not be deemed a waiver of any
of Elan’s rights, including the right not to make further advances by reason of
the same or similar circumstances.


 


2.4.                                   Interest


 


No
interest shall be payable on the Bridging Loan before 31 March 2004.


 


Without
prejudice to any other right Elan may have under this Agreement, the period
subsequent to 31 March 2004 for which any part of the Loan is outstanding shall
be divided into successive periods (“Interest
Periods”) each of which (other than the last, which shall end on the
day the Loan is repaid) shall be one month in duration and (other than the
first, which shall begin on 1 April 2004) shall start on the last day of the
preceding such period.  The rate of
interest on the outstanding amount of the Loan for each Interest Period will be
LIBOR plus 5 per cent. per annum.  Such
interest will accrue from day to day and be calculated on the basis of actual
days elapsed and a 365 day year.  Such
interest shall be payable on demand, or in default of demand in arrears on the
last day of each Interest Period. 
Interest shall be paid in US$ in immediately available funds without any
set-off, counterclaim, withholding or deduction for any reason whatsoever
except as required by law.


 


2.5.                                   Repayment


 


The
Bridging Loan shall be repaid by Amarin to Elan (or as it may direct) on the
earlier of:


 


(a)                                       31 March
2004; and


 


(b)                                      written
demand by Elan made at any time on or after the Demandable Date –


 


4

















 


in
US$ in immediately available funds, without any set-off, counterclaim,
withholding or deduction for any reason whatsoever except as required by law.


 


2.6.                                   Prepayment


 


Amarin
may prepay the whole amount or part of the Bridging Loan which is outstanding
at any time.


 


Amarin
may not pay less than US$100,000 in any prepayment of only part of the Bridging
Loan then outstanding, unless this is required by some other agreement between
Amarin and Elan.


 


3.                                           FACILITY FEES


 


3.1.                                   In consideration
of Elan entering into this Bridging Loan Agreement, Amarin shall pay to Elan
the following further non-refundable fees:


 


3.1.1                             1% (one
per cent.) of the Average Outstanding Amount in January 2004;


 


3.1.2                             1% (one
per cent.) of the Average Outstanding Amount in February 2004; and


 


3.1.3                             1% (one
per cent.) of the Average Outstanding Amount in March 2004 -


 


(the
“Facility Fees”).


 


3.2.                                   The
Facility Fees shall be payable on the day after the last day of the period they
relate to, in US$ in immediately available funds without any set-off,
counterclaim, withholding or deduction for any reason whatsoever except as
required by law.


 


Elan
shall be entitled to set off any Facility Fees owing against any amounts to be
advanced by Elan under Clause 2.2.


 


3.3.                                   In the
event of a demand for payment by Elan and/or its Affiliates of the Outstanding
Amounts on or after the Demandable Date, as each of those expressions is
defined in the Master Agreement, during a particular period referred to in
Clause 3.1:


 


3.3.1                             the period
shall be truncated to the date of demand;


 


3.3.2                             the date
for payment shall accordingly be the date of such demand;


 


3.3.3                             the
applicable percentage shall be reduced pro rata to the truncation of the period
in question; and


 


3.3.4                             no
Facility Fees for subsequent periods shall be payable.


 


3.4.                                   Payment of
the Facility Fees shall not be counted towards:


 


3.4.1                             payment of
the Bridging Loan;


 


5

















 


3.4.2                             payment of
any other of the Outstanding Amounts, as defined in the Master Agreement;


 


3.4.3                             payment of
the amounts due under Clause 7 of the Master Agreement as amended; nor


 


3.4.4                             payment of
the sums of US$30,000,000 and/or US$31,500,000 referred to in the Master
Agreement and other agreements to which the Master Agreement refers -


 


or
any part thereof.


 


4.                                           COVENANT AND WARRANTIES


 


4.1.                                   Amarin
shall ensure that while any part of the Bridging Loan remains outstanding no
member of the Group shall incur any indebtedness (whether secured or unsecured)
without the prior written consent of Elan other than Permitted Indebtedness.


 


4.2.                                   Amarin
represents and warrants to Elan that:


 


4.2.1                             it has the
right, power, capacity and authority and has taken all action necessary to
authorise it to execute and deliver and to exercise its rights and perform its
obligations under this Agreement and to ensure that its obligations under this
Agreement are valid, legally binding and enforceable according to their terms,
including, without limitation, obtaining all necessary approvals and consents
from its shareholders and any third parties;


 


4.2.2                             as at the
date hereof no member of the Group has any indebtedness (whether secured or
unsecured) outstanding to any third party other than Permitted Indebtedness;
and


 


4.2.3                             its
payment obligations under this Agreement rank at least pari passu with the
claims of all its other unsecured and unsubordinated creditors, except for
obligations mandatorily preferred by law applying to companies generally.


 


5.                                           EVENTS OF DEFAULT


 


Each
of Clauses 5.1 to 5.7 below describes circumstances which constitute an event
of default (“Event of Default”)
for the purposes of this Agreement.


 


5.1.                                   Failure to Pay


 


Amarin
fails to pay on the due date for payment any sum due from it under this
Agreement, except where such failure to pay is due solely to a technical or
administrative delay and is remedied within 3 Business Days of the due date for
payment.


 


6

















 


5.2.                                   Breach of Covenant


 


Amarin
fails to comply with any of the obligations expressed to be assumed by it under
Clause 4 and such failure is not remedied within 10 Business Days of receiving
notice of such failure from Elan.


 


5.3.                                   Insolvency and Rescheduling


 


Amarin
is unable to pay its debts as they fall due, commences negotiations with any
one or more of its creditors (other than Elan and/or any of its Affiliates)
with a view to the general readjustment or rescheduling of its indebtedness or
makes a general assignment for the benefit of or composition with its creditors.


 


5.4.                                   Winding Up


 


Amarin
takes any corporate action or other steps are taken or legal proceedings are
started for its winding up, dissolution, administration or re-organisation or
for the appointment of a liquidator, receiver, administrator, administrative
receiver, conservator, custodian, trustee or similar officer of it or of any or
all of its revenues and assets.


 


5.5.                                   Execution or Distress


 


Any
execution or distress is levied against, or an encumbrancer takes possession
of, the whole or any part of, the property, undertakings or assets of Amarin or
any event occurs which under the laws of any jurisdiction has a similar or
analogous effect.


 


5.6.                                   Repudiation


 


Amarin
repudiates this Agreement or evidences an intention to repudiate this
Agreement.


 


5.7.                                   Default on Other Agreement


 


Amarin
materially breaches any Elan Agreement, which breach is not remedied within 30
(thirty) days of Elan giving written notice to Amarin of such breach.


 


5.8.                                   Acceleration and Cancellation


 


Upon
the occurrence of an Event of Default, Elan may at any time thereafter by
notice to Amarin, declare the Bridging Loan to be immediately due and payable
or declare the Bridging Loan to be due and payable on demand of Elan. If Elan
declares the Bridging Loan due and payable on demand of Elan, then at any time
thereafter, Elan may by notice to Amarin require payment of the Bridging Loan
on such date as it may specify in such notice or withdraw its declaration with
effect from such date as it may specify.


 


6.                                           CHARGE COVERS BRIDGING LOAN


 


The
parties hereby acknowledge that it is their intention that all monies owing
under this Agreement are subject to the Debenture between Amarin and Elan
Corporation, plc. as trustee, dated 4 August 2003, as amended by the Charge
Amendment.


 


7

















 


7.                                           TAXES


 


7.1.                                   If Amarin
is required by law to pay or withhold any income or other taxes on behalf of
Elan with respect to any monies payable to Elan under this Agreement:


 


7.1.1                             Amarin
shall deduct them from the amount of such monies due;


 


7.1.2                             any such
tax required to be paid or withheld shall be an expense of and borne solely by
Elan, but without prejudice to Clause 7.3;


 


7.1.3                             Amarin
shall promptly provide Elan with a certificate or other documentary evidence to
enable Elan to support a claim for a refund or a foreign tax credit.


 


7.2.                                   Elan and
Amarin agree to co-operate in all respects necessary to take advantage of any
double taxation agreements or similar agreements as may, from time to time, be
available in order to enable Amarin to make such payments to Elan without any
deduction or withholding.


 


7.3.                                   If Amarin
is obliged to make a deduction or withholding on account of tax, Amarin shall
pay to Elan an additional amount so as to ensure that, after making required
deductions or withholding and giving effect to any tax credit arising therefrom
from which Elan actually benefits, Elan receives the same net amount as if no
deduction or withholding had been made or required to be made.


 


8.                                           FURTHER ASSURANCE


 


Each
party shall do and execute, or arrange for the doing and executing of, each
necessary act, document and thing reasonably within its power to implement this
Agreement.


 


9.                                           COUNTERPARTS


 


This
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute this Agreement.


 


10.                                    GENERAL


 


10.1.                             A
variation of this Agreement is valid only if it is in writing and signed by or
on behalf of each party.


 


10.2.                             A failure
to exercise or delay in exercising a right or remedy provided by this Agreement
or by law does not constitute a waiver of the right or remedy or a waiver of
other rights or remedies.  No single or
partial exercise of a right or remedy provided by this Agreement or by law
prevents further exercise of the right or remedy or the exercise of another
right or remedy.


 


8

















 


10.3.                             If any
provision in this Agreement is deemed to be invalid, illegal, void or unenforceable
under any law that is applicable hereto:


 


10.3.1                       such
provision will be deemed amended to conform to applicable laws so as to be
valid and enforceable; or


 


10.3.2                       if it
cannot be so amended without materially altering the intention of the parties,
it will be deleted, and the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be impaired or affected in any
way.


 


10.4.                             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.


 


11.                                    ASSIGNMENT


 


11.1.                             Elan may,
at any time, assign all or any of its rights hereunder.


 


11.2.                             Amarin may
not assign any of its rights or obligations hereunder.


 


12.                                    NOTICES


 


12.1.                             A notice
under or in connection with this Agreement (a “Notice”):


 


12.1.1        shall be
in writing;


 


12.1.2        shall be
in the English language; and


 


12.1.3        may be delivered
personally or sent by first class post (and air mail if overseas) or by fax to
the party due to receive the Notice at its address set out below:


 


12.2.                             The
address referred to in Clause 12.1.3 is:


 


12.2.1        in the
case of Amarin Corporation Plc:


 


	
  Address:

  	
   

  	
  7
  Curzon Street, London, WIJ 5HG

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44
  20 7499 9004

  



 


Marked
for the attention of :  President


 


12.2.2        in the
case of Elan Pharmaceuticals, Inc.:


 


	
  Address:

  	
   

  	
  800
  Gateway Blvd., South San Francisco, CA 94080

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +1
  650 553-7143

  



 


9

















 


Marked
for the attention of : General Counsel


 


with
a copy (which shall not constitute notice) to:


 


Elan Corporation, plc.


 


	
  Address:

  	
   

  	
  Lincoln
  House, Lincoln Place, Dublin 2, Ireland

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +353
  1 709 4124

  



 


Marked for the attention of : Company Secretary


 


12.3.                             Notice is
deemed given:


 


12.3.1                       if
delivered personally, when the person delivering the notice obtains the
signature of a person at the address referred to in Clause 12.1.3;


 


12.3.2                       if sent by
post, except air mail, two Business Days after posting it;


 


12.3.3                       if sent by
air mail, six Business Days after posting it;


 


12.3.4                       if sent by
fax, when confirmation of its transmission has been recorded by the sender’s
fax machine.


 


13.                                        GOVERNING LAW, JURISDICTION


 


13.1.                             This
Agreement is governed by and shall be construed in accordance with the laws of
England


 


13.2.                             The courts
of England shall have exclusive jurisdiction to settle any dispute arising from
or connected with this Agreement (a “Dispute”).


 


13.3.                             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.


 


IN WITNESS whereof the parties
have executed this Amendment Agreement on the date first above written.


 


10

















 


SCHEDULE 1   STATEMENTS SUPPORTING REQUEST


 


1)              Amarin has the right,
power, capacity and authority to make the request.


 


2)              Amarin does not
require any further consents or approvals to make the request, draw down the
advance, or consummate the transaction contemplated by this Agreement.


 


3)              Without prejudice to
the generality of the foregoing, Amarin does not require the approval of its
shareholders or approval of NASDAQ to make the request, draw down the advance
or consummate the transaction contemplated by this Agreement.


 


4)              Neither Amarin nor
any of its Affiliates has any indebtedness, secured or unsecured, outstanding
to any third party other than Permitted Indebtedness;


 


5)              Amarin is not in
breach of any agreement between itself on the one hand and Elan Corporation,
plc. or any of its Affiliates on the other.


 


6)              No other event or
circumstance is outstanding which constitutes a default under any other
agreement or instrument which is binding on it or to which its assets are
subject which might have a material adverse effect on its ability to perform
its obligations hereunder.


 


7)              No Event of Default
has occurred as defined in this Agreement or the Loan Agreement, or might
reasonably be expected to result from the making of the requested advance or
any utilisation thereof.


 


8)              No third party has
threatened legal proceedings for Amarin’s winding up, dissolution,
administration or re-organisation or for the appointment of a liquidator,
receiver, administrator, administrative receiver, conservator, custodian,
trustee or similar officer of Amarin or of any or all of Amarin’s revenues and
assets.


 


9)              No third party has
threatened the levying of any execution or distress against, or an encumbrancer
taking possession of, the whole or any part of, the property, undertakings or
assets of Amarin or any event which under the laws of any jurisdiction has a
similar or analogous effect.


 


10)        Amarin is able to pay
its debts as they fall due.


 


11)        No Insolvency Event,
as defined in the Master Agreement, has occurred.


 


12)        Amarin is not, to its
best knowledge, having made diligent enquiry, in breach of any obligation under
the Lilly Agreement.


 


13)        The information
supplied in support of the request for an advance, and in support of each
previous request, is accurate in all respects and not misleading, including by
reason of other information which is not supplied.


 


11

















 


14)        Insofar as such
information supplied consists of opinions and/or of predictions as to the
future, such opinions and/or predictions are made in good faith and based on
rational grounds, taking into account all relevant facts; and accurately
represent the opinions and/or predictions of Amarin’s Board of Directors.


 


15)        The person signing
the officer’s certificate attesting as to these statements is duly authorised
by Amarin’s Board of Directors to do so.


 


12

















 


[Signature Page to Bridging Loan Agreement]


 


	
  SIGNED

  
	
   

  
	
   

  
	
   

  	
   

  
	
  For
  and on behalf of

  
	
  ELAN PHARMACEUTICALS, INC.

  
	
   

  
	
   

  
	
  SIGNED

  
	
   

  
	
   

  
	
   

  	
   

  
	
  For
  and on behalf of

  
	
  AMARIN CORPORATION PLC.