UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 25049
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
Athena Neurosciences, Inc.
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(Name of Issuer)
Common Stock, $.01 par value
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(Title of Class of Securities)
046854105
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(CUSIP Number)
William F. Daniel, Elan Corporation, plc
Monksland, Athlone, County Westmeath,
Ireland, 011-353-902-94666
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices
and Communications)
May 31, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box /_/.
Check the following box if a fee is being paid with the statement
/ /. (A fee is not required only if the reporting person: (1)
has a previous statement on file reporting beneficial ownership
of more than five percent of the class of securities described in
Item 1; and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filled" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 046854105
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE
PERSON
Elan Corporation, plc
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A
GROUP* (a) /_/
N/A
(b) /_/
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
__
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS /_/
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
N/A
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Ireland
7. SOLE VOTING POWER
2,400,000 (assuming (i) the conversion
of a convertible note into 1,200,000
shares of Common Stock and (ii) the
exercise of two warrants for 400,000
and 500,000 shares of Common Stock,
respectively)
8. SHARED VOTING POWER
NONE
9. SOLE DISPOSITIVE POWER
2,400,000 (assuming (i) the conversion
of a convertible note into 1,200,000
shares of Common Stock and (ii) the
exercise of two warrants for 400,000
and 500,000 shares of Common Stock,
respectively)
10. SHARED DISPOSITIVE POWER
NONE
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
2,400,000 (assuming (i) the conversion
of a convertible note into 1,200,000
shares of Common Stock and (ii) the
exercise of two warrants for 400,000
and 500,000 shares of Common Stock,
respectively)
__
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES /_/
CERTAIN SHARES
NONE
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW
(11)
8.0% (assuming (i) the conversion of a
convertible note into 1,200,000 shares
of Common Stock and (ii) the exercise
of two warrants for 400,000 and
500,000 shares of Common Stock,
respectively)
14. TYPE OF REPORTING PERSON
CO
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This Amendment No. 2 is filed on behalf of Elan
Corporation plc, a public limited company organized and
existing under the laws of Ireland ("Elan"), and amends
the Schedule 13D dated February 23, 1996 and as amended
on March 22, 1996 (the "Schedule 13D"), filed by Elan
with respect to the Common Stock, par value $.01 per
share (the "Common Stock"), of Athena Neurosciences,
Inc., a Delaware corporation (the "Issuer"). This
Amendment No. 2 to the Schedule 13D hereby amends Items
3, 5, 6 and 7 of such Schedule 13D. Unless otherwise
indicated, all capitalized terms used but not defined
herein shall have the meaning set forth in such Schedule
13D.
Item 3. Sources and Amount of Funds or Other
Consideration
No changes except for the addition of the
following:
On May 31, 1996, Elan, the Issuer and
PaineWebber R&D Partners III, L.P., a limited partnership
organized and existing under the laws of the state of
Delaware ("PaineWebber L.P.") entered into a Purchase and
Assignment Agreement whereby Elan purchased from
PaineWebber L.P. a warrant (the "PaineWebber Warrant") to
purchase 500,000 shares of the Common Stock of the Issuer
and certain rights to a potential product of the Issuer
for an aggregate purchase price of $6,000,000. The
PaineWebber Warrant is not exercisable, if at all, until
the earlier of (i) the occurrence of certain specified
events or (ii) March 1, 1998. The exercise price for
the PaineWebber Warrant is the lesser of (a) $8.20 per
share or (b) the average of the closing prices for the
Common Stock of the Issuer for the 60 consecutive days
during which the Nasdaq National Market is open for
business immediately preceding the first day on which the
PaineWebber Warrant could be exercised. The source of
funds for the purchase by Elan of the PaineWebber Warrant
and those certain rights referenced above was working
capital.
Item 5. Interest in the Securities of the Issuer
Subsections (a), (b) and (c) of Item 5 are
hereby amended and restated in their entirety as follows:
(a) As of the date hereof, based upon the
number of shares of Common Stock of the Issuer
outstanding as of May 9, 1996, as set forth in the
Prospectus-Proxy Statement dated May 17, 1996 of Elan and
the Issuer, Elan beneficially owns 2,400,000 shares of
Common Stock of the Issuer, representing approximately
8.0% of the total outstanding shares of Common Stock of
the Issuer, including (i) 1,200,000 shares of Common
Stock which Elan Pharma has the right to acquire pursuant
to the convertible note, (ii) 400,000 shares of Common
Stock which Elan International has the right to acquire
pursuant to the Warrant and (iii) 500,000 shares of
Common Stock which Elan has the right to acquire under
certain circumstances pursuant to the PaineWebber
Warrant. Except as disclosed in this Item 5(a), neither
Elan, nor, to the best of Elan's knowledge, any other
person named in Item 2 of Amendment No. 1 to the Schedule
13D filed on March 22, 1996 beneficially owns any of the
Issuer's Common Stock.
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(b) To the best knowledge of Elan, it has sole
power to vote or direct the vote and to dispose of or
direct the disposition of all of the shares of Common
Stock beneficially owned by it.
(c) No transaction in the Common Stock has
occurred involving any person named in paragraph (a)
above during the past 60 days, other than the execution
of the Purchase Agreement described in items 3 and 4 of
Amendment No. 1 to the Schedule 13D filed on March 22,
1996 and the purchase of the PaineWebber Warrant
described in Item 3 above.
Item 6. Contracts, Arrangements, Understandings
or Relationships with Respect to
Securities of the Issuer
Item 6 is amended and restated in its entirety
as follows:
There is no contract, arrangement,
understanding or relationship between Elan or any of its
executive officers or directors, or to the best knowledge
of Elan, among such persons and any other person with
respect to any securities of the Issuer, except as set
forth elsewhere herein with respect to the Merger
Agreement, the Loan Agreement, the Warrant and the
PaineWebber Warrant.
Item 7. Material to be Filed as Exhibits
No changes except the addition of the
following:
Exhibit 2 Purchase and Assignment Agreement by and
among Elan, the Issuer and PaineWebber
L.P.
dated May 31, 1996.
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SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this Schedule 13D is true, complete and correct.
Dated: June 5, 1996
ELAN CORPORATION, PLC.
By: Thomas G. Lynch
-------------------------------
Name: Thomas G. Lynch
Title: Executive Vice
President and Chief
Financial Officer
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Exhibit Index
Exhibit 2 Purchase and Assignment Agreement by and
among Elan, the Issuer and PaineWebber
L.P. dated May 31, 1996.
<PAGE>
PURCHASE AND ASSIGNMENT AGREEMENT
THIS AGREEMENT, made as of May 31, 1996 (the "Effective
Date"), among ATHENA NEUROSCIENCES, INC., a corporation organized
and existing under the laws of the State of Delaware ("Athena"),
PAINEWEBBER R&D PARTNERS III, L.P., a limited partnership
organized and existing under the laws of the State of Delaware
(the "Fund") and Elan Corporation, plc., a public limited company
existing under the laws of Ireland ("Elan"):
W I T N E S S E T H T H A T:
WHEREAS, the Fund is the holder of a Warrant No. CO-1
and a Warrant No. CA-1 each for the purchase of 500,000 Shares of
Common Stock of Athena (respectively the "Core Warrant" and the
"Callable Warrant") and a party to the Agreements (as defined in
Section 1.5 hereof) with Athena;
WHEREAS, the Fund desires to sell, transfer and assign
its rights, title and interest to the Callable Warrant and the
Agreements and Elan desires to purchase, acquire and assume such
rights, title and interest;
WHEREAS, the Fund will deliver the Callable Warrant to
Elan and Athena will consent to such assignment of the Callable
Warrant and the Agreements simultaneously with the signing
hereof;
WHEREAS, Elan will pay to the Fund on the date hereof
the sum of Six Million Dollars ($6,000,000);
NOW, THEREFORE, in consideration of the mutual
covenants expressed herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, Athena, the Fund and Elan agree as follows:
ARTICLE I
ASSIGNMENT AND ASSUMPTION AND
PURCHASE AND SALE OF WARRANT AND AGREEMENTS
1.1. Subject to Section 1.6 below, simultaneously with the
execution and delivery hereof, upon the terms and subject
to the conditions set forth herein and in reliance upon the
representations and warranties contained herein, the Fund
hereby sells, transfers and assigns to Elan, and Elan
hereby purchases, assumes and acquires from the Fund all of
the Fund's right, title and interest in and obligations
under the Callable Warrant and the Agreements in
consideration of the payment of the Purchase Price (as
defined in Section 1.3) by Elan to the Fund.
1.2. Simultaneously with the execution and delivery hereof, the
Fund will deliver to Elan the warrant certificate
representing the Callable Warrant and Athena will consent
to the assignment of the Callable Warrant and the
Agreements by the Fund to Elan.
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1.3. Simultaneously with the execution and delivery hereof, Elan
will pay to the Fund a purchase price (the "Purchase
Price") equal to six million dollars ($6,000,000) by means
of a wire transfer made in accordance with the instructions
provided by the Fund.
1.4. Subject to Section 1.6 below, simultaneously with the
execution and delivery hereof, all references to the Fund
within the Callable Warrant and each of the Agreements
other than the Program Agreement shall be references to
Elan or its designee, and Elan shall succeed to all of the
rights and assume all of the obligations of the Fund under
the callable Warrant and the Agreements.
1.5. As used in this Agreement, the term the "Agreements" shall
mean collectively the Program Agreement between Athena and
the Fund, dated November 17, 1994 (the "Program
Agreement"), the Development Agreement between Athena and
the Fund, dated November 17, 1994, the Technology Agreement
between Athena and the Fund, dated November 17, 1994, and
the Purchase Option Agreement between Athena and the Fund
dated November 17, 1994 (the "Purchase Option Agreement").
1.6. Nothing in this Agreement shall be deemed to affect the
Fund's rights and obligations with respect to the Core
Warrant and the Common Stock issuable thereunder, whether
arising under the Core Warrant or the Program Agreement,
and Elan and Athena will not amend the Program Agreement in
any manner adverse to such rights and obligations without
the prior written consent of the Fund.
ARTICLE II
AGREEMENTS AND CONSENTS
OF ATHENA
2.1. Pursuant to Section 8.4(b) of the Program Agreement, Athena
hereby consents to and approves the assignment and sale by
the Fund of the Callable Warrant and the Agreements to
Elan.
2.2. Athena hereby agrees to indemnify Elan to the same extent
it indemnified the Fund pursuant to Appendix B of the
Program Agreement.
2.3 Athena hereby agrees to recognize Elan for all purposes as
the valid assignee as of the Effective Date under the
Callable Warrant and the Agreements.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Fund.
(a) Capacity, Authority and Validity. The Fund has
the full right, power and capacity to execute, deliver and
perform this Agreement, and all requisite partnership
action necessary to authorize the execution, delivery and
performance by the Fund of this Agreement has been duly
taken and no approval of, filing with, or other action by or
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in respect of, any governmental body, agency or official is
required in connection with the execution, delivery and
performance of this Agreement by the Fund. This Agreement
constitutes a valid and binding agreement of the Fund and
is enforceable against the Fund in accordance with its
terms.
(b) Non-Contravention. The execution, delivery and
performance by the Fund of this Agreement will not violate,
conflict with, or constitute a default under, the Fund's
agreement or certificate of limited partnership or the
terms and provisions of any material agreement, license,
trust, indenture, mortgage or other instrument or
restriction to which the Fund is party or by which it or
any of its assets or property may be bound, or any statute,
law, rule, regulation, judgment, decree, order, award, writ
or injunction applicable to the Fund or any of its assets
or property.
(c) Valid Title. The Fund has, as of the date hereof,
valid, good and marketable title to the Callable Warrant
free and clear of any lien, claim or encumbrance (except as
contained in the Purchase Option Agreement) and can assign
the Agreements free and clear of any lien, claim or
encumbrance (except as contained in the Purchase Option
Agreement).
(d) No Violations. To the best of its knowledge, the
Fund is not in violation of the Callable Warrant or the
Agreements.
3.2. Representations and Warranties of Elan.
(a) Capacity, Authority and Validity. Elan has the
full right, power and capacity to execute, deliver and
perform this Agreement, and all requisite corporate action
necessary to authorize the execution, delivery and
performance by Elan of this Agreement has been duly taken
and no approval of, filing with, or other action by or in
respect of, any governmental body, agency or official is
required in connection with the execution, delivery and
performance of this Agreement by Elan. This Agreement
constitutes a valid and binding agreement of Elan and is
enforceable against Elan in accordance with its terms.
(b) Non-Contravention. The execution, delivery and
performance by Elan of this Agreement will not violate,
conflict with, or constitute a default under, Elan's
articles of association or the terms and provisions of any
material agreement, license, trust, indenture, mortgage or
other instrument or restriction to which Elan is party or
by which it or any of its assets or property may be bound,
or any statute, law, rule, regulation, judgment, decree,
order, award, writ or injunction applicable to Elan or any
of its assets or property, and (except as contained in the
Purchase Option Agreement) will not result in the creation
of any lien, claim or encumbrance upon any property or
assets of Elan.
3.3. Representations and Warranties of Athena
(a) Capacity; Authority; Validity. Athena has the
full right, power and capacity to execute, deliver and
perform this Agreement and all requisite corporate action
necessary to authorize the execution,
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delivery and performance by Athena of this Agreement has
been duly taken and no approval of, filing with, or other
action by or in respect of, any governmental body, agency
or official is required in connection with the execution,
delivery and performance of this Agreement by Athena. This
Agreement constitutes a valid and binding agreement of
Athena and is enforceable against Athena in accordance with
its terms.
(b) Non-Contravention. The execution, delivery and
performance by Athena of this Agreement does not impair,
violate, conflict with, or constitute a default under, the
charter or bylaws of Athena or any material agreement,
license, trust, indenture, mortgage or other instrument or
restriction to which Athena is a party or by which Athena
or any assets or property of Athena may be bound, or any
statute, law, rule, regulation, judgment, decree, order,
award, writ or injunction applicable to Athena, or any
assets or property of Athena and (except as contained in
the Purchase Option Agreement) will not result in the
creation of any lien, claim or encumbrance upon any
property or assets of Athena. Other than any consent by
Elan under the Agreement and Plan of Merger among Elan,
Athena and Elan Acquisition Corp. (which consent is hereby
given by Elan by entering this Agreement), no consents,
approvals, waivers, authorizations or filings are required
from any Person in connection with the execution, delivery
and performance of this Agreement except those which have
previously been obtained and are in full force and effect.
(c) Corporate Existence; Qualification. Athena is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has
all requisite corporate power and authority to own and
lease its assets and property and to conduct its business,
as at present conducted and as contemplated hereby and is
duly licensed or qualified and in good standing in each
jurisdiction in which the conduct of its business or the
ownership or leasing of its assets and property makes such
licensing or qualification necessary, except in those
jurisdictions where the failure to so qualify would not
have a material adverse effect on the business, assets,
financial condition, results of operations or prospects of
Athena.
(d) No Violations. Athena is not in violation of any
of the provisions of the Callable Warrant or the
Agreements.
ARTICLE IV
MISCELLANEOUS
4.1. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original
instrument but all of which taken together shall constitute
one and the same agreement.
4.2. Severability. If any provision of this Agreement, or the
application of any such provision to any person or
circumstance, shall be held to be inconsistent with any
present or future law, ruling, rule, or regulation of any
court or governmental or regulatory authority having
jurisdiction over the subject matter of this Agreement,
such provision
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shall be deemed to be rescinded or modified in accordance
with such law, ruling, rule, or regulation, and the
remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as
to which it is held inconsistent, shall not be affected
thereby.
4.3. Captions. The captions in this Agreement are inserted for
convenience of reference only, and shall not affect the
interpretation or construction of any of the terms hereof.
4.4. Entire Agreement. This Agreement sets forth and
constitutes the entire Agreement among Athena, Elan and the
Fund with respect to the subject matter discussed herein
and supersedes any and all prior agreements,
understandings, promises and representations made by any
party hereto.
4.5. Amendments. This Agreement may not be amended or modified
in any manner except in writing signed by a duly authorized
officer of Athena and Elan and, in the case of the Fund, a
duly authorized officer of the General Partner.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly
executed and delivered this Agreement as of the date first
written above.
ATHENA NEUROSCIENCES, INC.:
/s/ John Groom
--------------------------------------
Name: John Groom
Title: President and Chief
Executive Officer
ELAN CORPORATION, plc.:
/s/ Thomas G. Lynch
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Name: Thomas G. Lynch
Title: Executive Vice President
and Chief Financial Officer
PAINEWEBBER R&D PARTNERS III, L.P.,
a limited partnership
By: PAINEWEBBER DEVELOPMENT
CORPORATION, its sole
general partner
/s/ Richard F. McCormick
---------------------------------------
Name: Richard F. McCormick
Title: Vice President
