Exhibit 4.36


 


Date:  4th
August 2003


 


 


ELAN INTERNATIONAL SERVICES, LTD.


 


ELAN PHARMACEUTICALS, INC.


 


AND


 


AMARIN CORPORATION PLC.


 


 


AMENDMENT AGREEMENT NO. 1 RELATING TO


AMENDED AND RESTATED ASSET PURCHASE AGREEMENT


DATED AS OF 29 SEPTEMBER 1999


 


(THE “CARNRICK LOAN”)


 

















 


INDEX


 


	
  1.

  	
  DEFINITIONS AND
  INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  EIS VARIATION RESCINDED

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  TERMS
  OF REPAYMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CONDITION FOR OPTION

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  CONSEQUENTIAL VARIATION

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  FURTHER
  PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  CONFIRMATION OF THE
  AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  MISCELLANEOUS

  	
   

  



 

















 


THIS
AMENDMENT AGREEMENT is made the 4th August 2003


 


BETWEEN:


 


(1)                                 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 (“EIS”)


 


(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 (“EP Inc”)
and


 


(3)                                 AMARIN CORPORATION PLC, a company incorporated in
England and Wales (registered no. 002353920), whose registered office is 7
Curzon Street, London, W1J 5HG England (“Amarin”)


 


WHEREAS:


 


(A)                              Amarin and EP Inc are parties
to an amended and restated asset purchase agreement dated as of 29
September 1999 (the “Original Agreement”).


 


(B)                                EIS and Amarin are parties to
an agreement dated 6 April 2000 amending the Original Agreement (the “EIS
Variation”), whereby (inter alia), upon assignment of the
Deferred Payment from EP Inc to EIS, the Deferred Payment was to be made to EIS
partly in cash and partly by the immediate issue of certain equity
securities.  Such assignment was never
effected, as the parties hereby acknowledge.


 


(C)                                Amarin and EP Inc are parties
to an agreement dated 2000 further amending the Original Agreement (the “EP Inc
Variation”), whereby (inter alia) the Deferred Payment, as
defined therein, was to be payable in equity securities in Amarin, or failing
such payment in equity securities by 29 September 2004, in cash.


 


(D)                               Elan Corporation, plc., Elan
Pharma International Limited, EIS, EP Inc., Monksland Holdings B.V. and Amarin
have entered into an Amended and Restated Master Agreement of even date
herewith (the “Master Agreement”).


 


(E)                                 Pursuant to the Master
Agreement, Amarin and EP Inc. have agreed to amend the Original Agreement, as
amended, by and upon the terms of this Amendment Agreement.


 


NOW
IT IS AGREED AS FOLLOWS:


 


1.                                           DEFINITIONS AND INTERPRETATION


 


1.1.                                   Unless the context otherwise
requires, all other words and expressions defined in the Agreement shall have
the same meaning in this Amendment Agreement.


 


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


 


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


 


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1.4.                                   Reference to articles,
sections, clauses and paragraphs herein are to articles, sections, clauses and
paragraphs in the Agreement.


 


1.5.                                   The expressions “include”,
“includes”, “including”, “in particular” and similar expressions shall be
construed without limitation.


 


2.                                           EIS VARIATION RESCINDED


 


The EIS
Variation is hereby rescinded in its entirety with the intention that it shall
be deemed never to have had any effect whatsoever.


 


3.                                           TERMS OF REPAYMENT


 


3.1.                                   The Deferred Payment shall be
payable to EP Inc:


 


3.1.1                             in cash on 29
September 2004; or


 


3.1.2                             in cash upon demand made in
writing either (a) on or after the Demandable Date, or (b) if Amarin breaches
any Elan Agreement and does not remedy it within thirty (30) days of written
notice of such breach from Elan specifying in reasonable detail the nature of
the breach and requesting the same to be remedied, the expiry of such thirty
(30) day period; or


 


3.1.3                             subject to Clause 4, at EP
Inc’s sole option, exercised by written notice at any time prior to payment in
full of the Deferred Payment but after 31st December 2003 (the
“Option”),
by the issue and allotment to EP Inc, or such person (including EIS or any
other affiliate of EP Inc) as EP Inc may designate in the Option notice
(either, the “Recipient”) of ordinary shares of £1 (one pound sterling) each
in the capital of in Amarin (“Ordinary Shares”) at a price of US$5.00
(five dollars) per Ordinary Share.


 


3.2.                                   Amarin may not prepay the
Deferred Payment, or any part, unless (a) EP Inc consents in writing, or (b)
prepayment is made under the Master Agreement, subject to Clause 6.4 of this
Amendment Agreement.


 


3.3.                                   In the event that EP Inc
exercises the Option, Amarin shall issue and allot the requisite number of
Ordinary Shares to the Recipient;


 


3.4.                                   EP Inc shall not be required
to make any demand for repayment of the Deferred Payment.  The Deferred Payment shall be made without
any set off, counterclaim or withholding whatsoever.


 


3.5.                                   As at the date of this
Amendment Agreement, each American Depositary Receipt (“ADR”) represents one Ordinary
Share of £1 in the capital of Amarin. 
In the event of any subdivision, consolidation or other restructuring of
the capital or ADR structure of Amarin, the conversion price referred to above,
and the multiple in Clause 4.4, shall each be adjusted accordingly.


 


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4.                                           CONDITION FOR OPTION


 


4.1.                                   Clause 3.1.3 shall not be
effective unless and until Amarin receives all necessary shareholder,
regulatory and governmental consents and approvals to honour it without
material conditions, including authority to issue and allot the Ordinary
Shares, to disapply pre-emption rights in respect of them, other shareholder
approval and/or the approval of the Panel of Takeovers and Mergers, London.


 


4.2.                                   Amarin shall use its best
commercial efforts to secure all such consents and approvals and to maintain
them in force at all material times.


 


4.3.                                   Without prejudice to the
generality of the foregoing, Amarin shall seek requisite approvals from its
shareholders in the course of each general meeting convened after the date of
this Agreement.


 


4.4.                                   If, at any time at which the
Option could be exercised, but for Clause 4.1, Elan in its sole discretion
requires Amarin to do so by written notice, Amarin shall within five (5)
business days pay to Elan in immediately available funds an amount equal to the
greater of (a) $6,500,000 (six million five hundred thousand dollars) and (b)
the product of (i) 1,300,000 (one million three hundred thousand) and (ii)
the 30 day trailing average (closing market mid-price) of the ADRs on NASDAQ on
the 30 trading days preceding the date of notice, in complete discharge of the
Deferred Payment.


 


In the event that the amount of the
Deferred Payment then outstanding is less than $6,500,000 (Six Million Five
Hundred Thousand Dollars), the amount payable under this Clause 4.4 shall be
reduced pro rata.


 


5.                                           CONSEQUENTIAL VARIATION


 


The
parties to this Amendment Agreement agree that the Agreement shall be varied by
the deletion of Article IV, Section 4.01(b)(ii) in its entirety and
the substitution therefor of the following:


 


“(ii) the balance of Six Million Five
Hundred Thousand Dollars ($6,500,000) (the “Deferred Payment”) in accordance
with the provisions of that certain Amendment Agreement between the Seller and
the Buyer dated       July 2003.”.


 


6.                                           FURTHER PROVISIONS


 


6.1.                                   Registration Rights:


 


In the
event that EP Inc exercises the Option, the Recipient shall be entitled to
registration rights in respect of the Ordinary Shares issued and allotted which
are no less favourable in any respect to the Recipient than those afforded in
respect of the “Registrable Securities” of EIS and Monksland Holdings BV
pursuant to that certain Registration Rights Agreement dated as of 21
October 1998 and amended by that certain Amendment No. 1 and Waiver dated
27 January 2003 PROVIDED THAT the Recipient shall not be
entitled to have the Ordinary Shares included in the registration statement
described in Article 5 of the said Amendment No. 1 and Waiver.


 


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6.2.                                   Expenses:


 


All
fees and expenses, including stamp duty, stamp duty reserve tax, depositary’s
fees and NASDAQ fees, incurred in connection with this Amendment Agreement or
its performance, shall be payable by Amarin.


 


6.3.                                   Assignment:


 


Notwithstanding
anything to the contrary in the Agreement or the Master Agreement:


 


6.3.1                             EP Inc shall be entitled to
assign its rights and obligations under this Amendment Agreement (including the
right to receive the Deferred Payment) without the consent of Amarin; and


 


6.3.2                             accordingly, for the avoidance
of doubt, EP Inc’s rights under the Master Agreement, insofar as they relate to
the Deferred Payment, shall be assignable by EP Inc to any assignee of this
Amendment Agreement.


 


6.4.                                   No Effect on Master Agreement
Repayment Provisions:


 


6.4.1                             If EP Inc has exercised the
Option and, before issue of the Ordinary Shares, Amarin becomes obliged to
discharge the Deferred Payment (in whole or in part) pursuant to the Master
Agreement, EP Inc shall be entitled at its sole discretion:


 


(a)                        to revoke its exercise of the
Option in its entirety;


 


(b)                       to revoke its exercise of the
Option solely to the extent that payment falls due under the Master Agreement
(so that the Option shall be deemed to have been exercised only in respect of
the balance); or


 


(c)                        to require Amarin to proceed
with the issue and allotment of Ordinary Shares under this Amendment Agreement.


 


6.4.2                             Subject to Clause 6.4.1 of
this Amendment Agreement, nothing in this Agreement shall be deemed to affect
the provisions of the Master Agreement regarding the discharge of the Deferred
Payment.  For the avoidance of doubt,
discharge of the Deferred Payment (or any part thereof) by the issue and
allotment of Ordinary Shares shall not constitute the application of the
proceeds of the Net Proceeds of the Legacy Sale, the Swedish Sale or Further
Equity Financing (as those terms are defined in the Master Agreement), or of
any part thereof.


 


7.                                           CONFIRMATION OF THE AGREEMENT


 


Save as
varied by this Amendment Agreement, the parties hereto confirm that the
Agreement shall continue in full force and effect in all respects.


 


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8.                                           MISCELLANEOUS


 


8.1.                                   The provisions of
Article X (Miscellaneous) of the Agreement, shall be incorporated into
this Amendment Agreement mutatis mutandis.


 


8.2.                                   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 Amendment
Agreement, including entering into an appropriate registration rights agreement
following exercise of the Option.


 


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


 


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[Signature Page: Carnrick
Amendment No. 1]


 


	
  SIGNED

  
	
   

  
	
   

  	
   

  
	
  For and on
  behalf of

  
	
  ELAN INTERNATIONAL SERVICES, LTD.

  
	
   

  
	
   

  
	
  SIGNED

  
	
   

  
	
   

  	
   

  
	
  For and on
  behalf of

  
	
  ELAN PHARMACEUTICALS, INC.

  
	
   

  
	
   

  
	
  SIGNED

  
	
   

  
	
   

  	
   

  
	
  For and on
  behalf of

  
	
  AMARIN CORPORATION PLC.

  



 


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