AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 1996
Registration No. 333-03829
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM F-3* TO
FORM F-4
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
ELAN CORPORATION, plc
(Exact name of registrant as specified in charter)
Republic of Ireland Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Monksland, Athlone
County Westmeath, Republic of Ireland
+353-902-95000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
WILLIAM F. DANIEL
Monksland, Athlone
County Westmeath, Republic of Ireland
+353-902-95000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
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If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. /__/
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* Filed as a Post-Effective Amendment on Form F-3 to such Form F-4
Registration Statement pursuant to the provisions of Rule 401(e) and
the procedure described herein. See "INTRODUCTORY STATEMENT NOT
FORMING PART OF PROSPECTUS."
<PAGE>
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /x/
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the
Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering. /__/
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration
statement number of the earlier effective registration
statement for the same offering. /__/
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. /__/
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay
its effective date until the registrant shall file a further
amendment which specifically states that this registration
statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the
registration statement shall become effective on such date as
the Commission, acting pursuant to Section 8(a), may determine.
<PAGE>
INTRODUCTORY STATEMENT NOT FORMING PART OF PROSPECTUS
Elan Corporation, plc ("Elan") hereby amends its
Registration Statement on Form F-4 (No. 333-03829) (the
"Form F-4") by filing this Post-Effective Amendment No. 1 on
Form F-3 (the "Post-Effective Amendment") relating to ordinary
shares, par value 4 Irish pence per share, of Elan represented
by American Depositary Shares ("ADSs") and evidenced by
American Depositary Receipts of Elan. The Elan ADSs are
issuable upon the exercise of certain outstanding stock
warrants (the "Warrants") previously issued (or assumed) by
Athena Neurosciences, Inc. ("Athena"). The Warrants were
issued pursuant to (i) a Common Stock Purchase Warrant dated as
of September 2, 1994 and amended on February 7, 1995 between
Harvard College and Athena (as successor to Genica
Pharmaceuticals Corporation ("Genica")); (ii) a Stock Purchase
Warrant dated as of February 2, 1993 between Lehman Brothers
Inc. and Athena (as successor to Genica); (iii) a Warrant dated
as of November 17, 1994 between PaineWebber R&D Partners III,
L.P. and Athena; and (iv) a Warrant dated as of June 16, 1995
between MMC/GATX Partnership No. I and Athena (such agreements,
collectively, the "Warrant Agreements").
Elan, Elan Acquisition Corp., a wholly-owned
subsidiary of Elan ("Subco"), and Athena entered into an
Agreement and Plan of Merger dated as of March 18, 1996 (the
"Merger Agreement") pursuant to which on [ ], 1996,
Subco will merge (the "Merger") into Athena with Athena as the
surviving corporation. In the Merger, each outstanding share
(other than shares owned by Athena as treasury stock or shares
owned by any subsidiary of Athena or shares owned by Elan or
shares owned by any subsidiary of Elan) of common stock, par
value $.01 per share, of Athena ("Athena Common Stock") will be
converted into the right to receive .2956 of an Elan ADS. In
addition, Elan will assume the obligations of Athena under the
Warrant Agreements. As a result, the Warrants will no longer
be exercisable for shares of Athena Common Stock, but instead,
upon exercise thereof, the holder will be entitled to receive
Elan ADSs in lieu of shares of Athena Common Stock on the basis
provided in the Prospectus constituting a part of this Post-
Effective Amendment.
<PAGE>
Subject to Completion, dated June 19, 1996
Prospectus
ELAN CORPORATION, plc
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215,798 American Depositary Shares
----------------
This Prospectus relates to 215,798 American
Depositary Shares ("ADSs"), evidenced by American Depositary
Receipts ("ADRs"), each representing one Ordinary Share, par
value 4 Irish pence (an "Ordinary Share"), of Elan Corporation,
plc ("Elan") issuable upon exercise of certain outstanding
stock warrants (the "Warrants") previously issued by Athena
Neurosciences, Inc. ("Athena"). The Warrants were issued
pursuant to (i) a Stock Purchase Warrant dated as of
September 2, 1994 and amended on February 7, 1995 (the "Harvard
Warrant") between Harvard College and Athena (as successor to
Genica Pharmaceuticals Corporation ("Genica")); (ii) a Stock
Purchase Warrant dated as of February 2, 1993 (the "Lehman
Warrant") between Lehman Brothers Inc. and Athena (as successor
to Genica); (iii) a Warrant dated as of November 17, 1994 (the
"PaineWebber Warrant") between PaineWebber R&D Partners III,
L.P. and Athena; and (iv) a Warrant dated as of June 16, 1995
(the "MMC/GATX Warrant") between MMC/GATX Partnership No. I and
Athena (such agreements, collectively, the "Warrant
Agreements").
The ADSs are traded on the New York Stock Exchange
(the "NYSE") under the symbol "ELN".
Elan, Elan Acquisition Corp., a wholly-owned
subsidiary of Elan ("Subco"), and Athena entered into an
Agreement and Plan of Merger dated as of March 18, 1996 (the
"Merger Agreement") pursuant to which on [ ], 1996 Subco
merged (the "Merger") into Athena with Athena as the surviving
corporation. In the Merger, each outstanding share (other than
shares owned by Athena as treasury stock or shares owned by any
subsidiary of Athena or owned by Elan or by any subsidiary of
Elan) of common stock, par value $.01 per share, of Athena
("Athena Common Stock") was converted into the right to receive
.2956 of an Elan ADS. In addition, Elan assumed the
obligations of Athena under the Warrant Agreements. As a
result, the Warrants are no longer exercisable for shares of
Athena Common Stock, but instead, upon exercise thereof, the
holder is entitled to receive Elan ADSs in lieu of shares of
Athena Common Stock on the basis provided in the Prospectus.
<PAGE>
SEE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS
PROSPECTUS FOR A DISCUSSION OF CERTAIN CONSIDERATIONS RELEVANT
TO AN INVESTMENT IN THE ADSs.
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1996.
<PAGE>
No person is authorized to give any information or to
make any representation not contained in this Prospectus and,
if given or made, such information or representation should not
be relied upon as having been authorized by Elan or any other
person. This Prospectus does not constitute an offer to sell
or a solicitation of an offer to buy any securities in any
jurisdiction to any person to whom it is not lawful to make any
such offer or solicitation in such jurisdiction. Neither the
delivery of this Prospectus nor any distribution of the
securities made under this Prospectus shall, under any
circumstances, create an implication that there has been no
change in the affairs of Elan since the date of this
Prospectus.
Table of Contents
Page
Enforceability of Civil Liabilities Under
United States Federal Securities Laws........................... 1
Available Information............................................. 1
Incorporation of Certain Documents by
Reference....................................................... 2
The Company....................................................... 4
Risk Factors...................................................... 4
The Warrants...................................................... 8
Use of Proceeds................................................... 9
Description of Elan Capital Stock................................. 9
Description of American Depositary Receipts....................... 13
Legal Matters..................................................... 19
Experts........................................................... 19
<PAGE>
ENFORCEABILITY OF CIVIL LIABILITIES
UNDER UNITED STATES FEDERAL SECURITIES LAWS
Elan is a public limited company incorporated in
Ireland. Certain directors, officers and controlling persons
of Elan, as well as certain of the experts named herein, reside
outside the United States of America (the "U.S."), and all or a
substantial portions of their assets and the assets of Elan are
located outside the U.S. As a result, it may be difficult for
investors to effect service of process within the U.S. upon
such persons or to enforce against them judgments of courts of
the U.S. predicated upon civil liabilities under the U.S.
federal securities laws. Elan has been advised by its Irish
counsel, McCann FitzGerald Solicitors, that there is doubt as
to the enforceability against such persons in Ireland, whether
in original actions or in actions for enforcement of judgments
of U.S. courts, of liabilities predicated solely upon the U.S.
federal securities laws.
AVAILABLE INFORMATION
Elan is subject to the information and reporting
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), applicable to foreign private issuers,
and in accordance therewith files reports and other information
with the Securities and Exchange Commission (the "Commission").
The reports and other information filed by Elan with the
Commission can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Regional
Offices of the Commission located at 7 World Trade Center, Room
1300, 13th Floor, New York, New York 10048, and Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material can also be obtained by
mail from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, such material may be inspected and copied
at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005, on which exchange the Elan ADSs are listed.
Elan has filed with the Commission a Post-Effective
Amendment on Form F-3 to a Registration Statement on Form F-4
(together with any amendments and exhibits thereto, the
"Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), with respect to the securities offered
hereby. Statements contained in this Prospectus as to the
content of any contract or other document are not necessarily
complete, and in each instance reference is made to the copy of
such contract or other document filed as an exhibit to the
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Registration Statement, each such statement being qualified in
all respects by such reference and the exhibits and schedules
hereto. For further information regarding Elan and the
securities offered hereby, reference is hereby made to the
Registration Statement.
Elan provides The Bank of New York, as depositary
(the "Depositary"), with annual reports in English, which
include a review of operations and annual audited consolidated
financial statements prepared in conformity with generally
accepted accounting principles in Ireland. Elan also provides
the Depositary with quarterly interim reports in English which
include unaudited interim consolidated financial information
prepared in conformity with generally accepted accounting
principles in Ireland. Upon receipt of such reports, the
Depositary promptly mails such reports to all holders of record
of ADSs registered on the books of the Depositary. The Company
also provides the Depositary, in English, with all notices of
stockholders' meetings and other reports and communications
that are made generally available to its stockholders. The
Depositary arranges for the mailing of such notices, reports
and communications to such holders of record of ADSs. As a
foreign private issuer, the Company is exempt from the rules
under the Exchange Act prescribing the furnishing and content
of proxy statements.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by Elan with
the Commission pursuant to the Exchange Act are incorporated
herein by this reference:
(i) Elan's Annual Report on Form 20-F for the fiscal
year ended March 31, 1995;
(ii) Elan's Reports on Form 6-K dated April 5, 1995;
April 11, 1995; April 11, 1995; May 12, 1995; June 21,
1995; July 18, 1995; July 18, 1995; August 8, 1995;
August 15, 1995; August 17, 1995; August 24, 1995;
September 15, 1995; October 30, 1995; December 1, 1995;
January 3, 1996; January 17, 1996; January 30, 1996;
March 19, 1996; March 19, 1996; March 19, 1996; April 1,
1996; May 13, 1996; June 13, 1996; and June 19, 1996; and
(iii) the descriptions of Elan's Ordinary Shares and
Elan ADSs contained in Elan's registration statements on
Form 8-A filed with the Commission on October 30, 1990,
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including any amendment or report filed for purposes of
updating such descriptions.
The following documents previously filed by Athena
with the Commission pursuant to the Exchange Act (Commission
File No. 0-19560) are incorporated herein by this reference:
(i) Athena's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, filed with the
Commission on March 28, 1996, as amended on April 2, 1996
by Amendment No. 1 on Form 10-K/A;
(ii) Athena's Current Report on Form 8-K dated
March 18, 1996; and
(iii) Athena's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996, filed with the
Commission on May 1, 1996.
In addition, all filings on Form 20-F filed by Elan
pursuant to the Exchange Act, and, to the extent designated
therein, any reports on Form 6-K of Elan, after the initial
filing of the Registration Statement of which this Prospectus
forms a part, after the date of this Prospectus and prior to
the termination of the offering made hereby shall be deemed to
be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing of such documents. Any
statements contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed
document which also is incorporated by reference herein)
modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded. All information
appearing in this Prospectus is qualified in its entirety by
the information and consolidated financial statements
(including notes thereto) appearing in the documents
incorporated herein by reference, except to the extent set
forth in the immediately preceding statement.
Copies of documents incorporated by reference with
respect to Elan that are not presented herein or delivered
herewith (not including exhibits to such documents unless such
exhibits are specifically incorporated by reference in such
documents or herein) are available without charge to any person
to whom this Prospectus is delivered upon written or oral
request to Elan Corporation, plc, Monksland, Athlone, County
<PAGE>
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Westmeath, Republic of Ireland, Attn: William F. Daniel,
+353-902-95000.
THE COMPANY
Elan is a world leader in the development of
controlled-absorption drug delivery systems. Elan
manufactures, markets and licenses drug products based on such
systems. Elan's drug delivery technologies are designed to
improve and control the absorption and utilization by the human
body of active pharmaceutical compounds, allowing these
compounds to be administered less frequently, with reduced side
effects and/or in reduced dosages. Elan has developed
technologies applicable to a number of different controlled-
absorption drug delivery systems which address a wide variety
of delivery problems. These include a broad range of oral
delivery systems for conventional drugs and for new and
emerging therapeutic agents, passive transdermal, electrically
assisted transdermal and transcutaneous systems, and long-
acting injectables.
Elan was incorporated as a private limited company in
Ireland in 1969. In January 1984, Elan became a public limited
company. Elan's principal executive offices are located at
Monksland, Athlone, County Westmeath, Ireland, telephone number
+353-902-95000.
RISK FACTORS
In connection with an investment in the ADSs offered
by this Prospectus, prospective investors should Elan consider,
among other factors, the following:
No Assurance of Continued Successful Licensing and
Marketing. Elan's revenues are derived primarily from sales of
its products, which are marketed through agreements with third
parties, by way of license agreements or otherwise. There can
be no assurance that such third party arrangements can continue
to be successfully negotiated or that any such arrangements
will be on commercially reasonable terms. Even if acceptable
and timely marketing arrangements are available, there can be
no assurance that products developed by Elan will be accepted
in the marketplace or that, if initially accepted, sales of
such products will not thereafter decline. Additionally, since
Elan's clients or marketing partners in many cases make
material marketing and other commercialization decisions, a
significant number of the variables that may affect Elan's
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revenues and net income are not exclusively within Elan's
control.
Dependence on Significant Clients and Key Products.
Elan's revenues are dependent upon its relationships with the
clients to which it licenses its products. In fiscal 1995,
Advanced Therapeutic Systems, Limited ("ATS") accounted for
approximately 21% of Elan's total revenues. ATS has limited
resources and significant restrictions on its ability to raise
additional funds without Elan's consent. Elan also has an
option, which is currently exercisable, to purchase all of the
outstanding common shares of ATS at predetermined prices
through April 30, 1998 (the "Purchase Option"). In addition,
agreements with American Home Products Corporation ("AHP") and
Hoechst Marion Roussel, Inc. ("HMR") accounted for
approximately 20% and 17%, respectively, of Elan's total
revenues in fiscal 1995. The sudden loss of, or significant
reduction in, demand for Elan's products from one or more of
such clients could adversely affect Elan.
Revenues from the sale and manufacture of Cardizem\
SR, Cardizem\ CD and Verelan\ for the United States and
Canadian markets accounted for an aggregate of 35% of Elan's
total revenues in fiscal 1995. Continued growth in Elan's
revenues will depend on continued market demand for such
products, as well as the successful introduction and marketing
of new products. There can be no assurance that Elan will
continue to be successful in developing new products or that
Elan's products will be accepted in the marketplace.
Government Regulation. The design, development,
testing, manufacturing and marketing of pharmaceutical
compounds, medical nutrition and diagnostic products and
medical devices are subject to regulation by governmental
authorities, including the United States Food and Drug
Administration (the "FDA"), and comparable regulatory
authorities in other countries. The approval process is
generally lengthy, expensive and subject to unanticipated
delays. Currently, Elan is actively pursuing marketing
approval for a number of its products from regulatory
authorities, including the FDA. Continued growth in Elan's
revenues and profits will depend, in part, on the successful
introduction and marketing of some or all of such products.
There can be no assurance as to when or whether such approvals
from regulatory authorities will be received.
All facilities and manufacturing techniques used for
the manufacturing of products for clinical use or for sale in
<PAGE>
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the United States must be operated in conformity with current
Good Manufacturing Practices ("GMP") regulations, the FDA
regulations governing the production of pharmaceutical
products. Elan's facilities are subject to scheduled periodic
regulatory inspections to ensure compliance with GMP
regulations. On July 13, 1995 and September 26, 1995, Elan
received "warning letters" from the FDA which referenced
previous inspections of Elan's Athlone, Ireland manufacturing
facility (the "Athlone Letter") and Gainesville, Georgia
manufacturing facility (the "Gainesville Letter" and, together
with the Athlone Letter, the "Warning Letters"). The Warning
Letters identified certain conditions which the FDA considered
to be deviations from GMP regulations at such facilities. As a
result of discussions with the FDA following such inspections,
Elan implemented a number of corrective actions and is
intensifying its GMP compliance procedures in order to address
the issues raised by the FDA. The Warning Letters have not
had, and Elan does not believe that the Warning Letters will
have, a material adverse effect on Elan and its operations.
Elan believes that its facilities are in substantial compliance
with GMP regulations. However, a determination by the FDA that
Elan is not in substantial compliance with such regulations
could have a material adverse effect on Elan.
Competition. In recent years, a large number of
pharmaceutical companies have become increasingly interested in
the development and commercialization of products incorporating
advanced or novel drug delivery systems. Certain
pharmaceutical products developed by Elan may face significant
competition from brand name and generic products during the
next several years. Two of Elan's products, Verelan and
Cardizem CD, which accounted for an aggregate of 29% of Elan's
total revenues in fiscal 1995, use delivery systems which are
patent protected until 2007 and 2011, respectively. In
addition, HMR also holds patents over Cardizem CD which expire
in 2011. Other forms of sustained-release diltiazem and
verapamil are reported to be in various stages of development
by other companies. Elan cannot predict the impact of future
competition on the sales of its products.
Uncertainty of Third Party Reimbursement; Pricing
Pressure. Elan's ability to earn sufficient returns on its
products may depend, in part, on the availability of
reimbursement from third party payors, such as government
health administration authorities, private health insurers and
other organizations. Third party payors are increasingly
challenging the price and cost-effectiveness of medical
products and services. There can be no assurance that adequate
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third party reimbursement will be available to enable Elan to
achieve or maintain price levels sufficient to realize an
appropriate return on its investment in product development.
In addition, global efforts to contain health care
costs, particularly among managed care organizations, continue
to exert downward pressure on product pricing. Further, a
number of regulatory and legislative proposals aimed at
changing the health care industry in the United States and
other countries have been proposed. There can be no assurance
that private sector reform or governmental health care reform
measures, if adopted, will not have a negative impact upon Elan
and its operations.
Proprietary Technology; Unpredictability of Patent
Protection. Elan's success, competitive position and amount of
royalty income will depend, in part, on its ability to obtain
patents in various jurisdictions on its current and future
technologies and products, to defend its patents and protect
its trade secrets and to operate without infringing on the
proprietary rights of others. Elan has filed, and expects to
continue to file, patent applications seeking to protect its
technologies and products. There can be no assurance, however,
that Elan's existing patent applications will mature into
issued patents, or if issued, that they will be enforceable.
In addition, there can be no assurance that Elan's patents will
not be challenged by third parties and, if challenged, will be
held valid, or that any technologies or products developed by
Elan will not infringe upon patents held by third parties. The
expense involved in litigation regarding patent protection or a
challenge thereto can be significant and cannot be estimated by
Elan. Finally, if Elan relies on unpatented, proprietary
technology, there can be no assurance that others will not
independently develop or obtain similar products or
technologies. Elan is presently engaged in litigation relating
to its once-daily formulation of diltiazem.
Advanced Therapeutic Systems, Limited. If Elan
elects to exercise the Purchase Option to acquire all of ATS's
issued and outstanding common shares, the purchase price will
be between approximately $141.2 million and $239.3 million,
depending upon the date of exercise. Such purchase price is
payable in cash, in Elan ADSs or Ordinary Shares, or in any
combination of the foregoing, at Elan's sole discretion. If
such payment is made in Elan ADSs or Ordinary Shares, or if
Elan ADSs or Ordinary Shares are issued to fund the acquisition
of the ATS shares for cash, there may be a significant dilution
in earnings per share and in net tangible book value per share
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to Elan's stockholders. In addition, under U.S. generally
accepted accounting principles, if Elan were to exercise its
Purchase Option, Elan would be required to record a one-time
charge on its income statement for any in-process research and
development acquired, which one-time charge could be expected
to be material.
THE WARRANTS
Pursuant to the Merger Agreement, each Warrant may be
exercised on the same terms and conditions as were applicable
prior to the Merger, except for the price and share adjustments
described herein. Each Warrant now represents the right to
purchase that number of Elan ADSs equal to the product of the
number of shares of Athena Common Stock subject to such Warrant
and not exercised prior to the effective time of the Merger,
multiplied by .2956 and rounded downward to the nearest whole
share. The exercise price per share shall be equal to the
exercise price per share under such Warrant divided by .2956
and rounded upward to the nearest one-hundredth of one whole
cent. The Merger Agreement does not provide for the issuance
of fractional Elan ADSs upon the exercise of a Warrant. Upon
the exercise of a Warrant, in lieu of any fractional Elan ADS
that would be issued as a result of such exercise, Elan will
pay to the holder of such Warrant cash in an amount equal to
such fractional share multiplied by the last reported sales
price of Elan ADSs on the NYSE.
Harvard Warrant
As a result of the Merger, the Harvard Warrant now
represents the right to purchase up to 11,829 Elan ADSs, at an
exercise price of $20.30 per Elan ADS. The Harvard Warrant
expires September 2, 2004.
Lehman Warrant
As a result of the Merger, the Lehman Warrant now
represents the right to purchase up to 11,829 Elan ADSs, at an
exercise price of $15.23 per Elan ADS. The Lehman Warrant
expires February 2, 1999.
PaineWebber Warrant
As a result of the Merger, the PaineWebber Warrant
now represents the right to purchase up to 147,800 Elan ADSs,
at an exercise price of $27.74 per Elan ADS; provided, however,
that under certain circumstances set forth in the PaineWebber
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Warrant, the exercise price shall be increased to $37.55 per
Elan ADS. The exercise price can only be increased if on or
after November 17, 1996, the Closing Price (as defined in the
PaineWebber Warrant) for Elan ADSs shall have equaled or
exceeded $50.74 per share (subject to adjustment as provided in
the PaineWebber Warrant) for 15 consecutive days during which
the NYSE (or any successor to such system) is open for business
and the holder of the PaineWebber Warrant is given the required
notice and opportunity to exercise such warrant before the
increase in the exercise price. The PaineWebber Warrant
expires November 15, 1999.
MMC/GATX Warrant
As a result of the Merger, the MMC/GATX Warrant now
represents the right to purchase up to 44,340 Elan ADSs, at an
exercise price of $23.35 per Elan ADS.
USE OF PROCEEDS
The net proceeds to Elan from the issuance of Elan
ADSs upon the exercise of the Warrants (approximately
$5,555,595, assuming the exercise of all the Warrants (or
$7,005,513 if the exercise price of the PaineWebber Warrant is
increased as described above)) will be used for general
corporate purposes.
DESCRIPTION OF ELAN CAPITAL STOCK
Elan's authorized capital stock consists of
100,000,000 Ordinary Shares, par value 4 Irish pence per share
(the "Elan Ordinary Shares"), 1,000 Executive Shares, par value
one Irish pound per share (the "Executive Shares"), and 25,000
'B' Executive Shares, par value 4 Irish pence per share (the
'B' Executive Shares").
Ordinary Shares
General. All of the 38,477,169 Elan Ordinary Shares
issued as of May 10, 1996 were fully paid, duly authorized and
validly issued. Holders of Elan Ordinary Shares are entitled
to receive such dividends as may be recommended by the Board of
Directors of Elan and approved by the stockholders and/or such
interim dividends as the Board of Directors of Elan may decide.
On liquidation or a winding up of Elan, the assets available
for distribution among the holders of Elan ADSs and Elan
Ordinary Shares not otherwise represented by Elan ADSs shall be
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distributed pro rata. Elan Ordinary Shares have no conversion
or redemption rights.
Voting Rights. Holders of Ordinary Shares are
entitled to one vote per share, either in person or by proxy,
whenever a formal vote is called for by a poll. On non-
contentious matters brought before a general or special meeting
of stockholders, a vote shall be taken by a show of hands, in
which every stockholder present in person or by proxy will have
one vote; provided, however, that no individual will have more
than one vote. Elan's Memorandum and Articles of Association
("Elan's Articles") provide that three or more stockholders
present in person or by proxy holding not less than one-third
of the issued Ordinary Shares constitute a quorum at a meeting
of stockholders. A majority of votes cast is required for
ordinary resolutions; however, a 75% vote is required for
adoption of a special resolution, such as a proposed amendment
to Elan's Articles or authorizing a voluntary liquidation of
Elan. Variation of the rights relating to a class of shares
requires the approval of a special resolution by the class in
question. Stockholders do not have cumulative voting rights
for the election of directors, which means that the holders of
a majority of the shares can elect all of the directors.
Rights of Dissenting Stockholders. There are no
appraisal rights under Irish law.
Stockholder Meetings. Under Irish law, a company's
annual general meeting of stockholders ("annual meeting") must
take place in the Republic of Ireland and any business
transacted at a meeting held in breach of this requirement will
be void, unless all stockholders entitled to attend and vote at
such meeting consent in writing to the meeting being held
elsewhere or alternatively a resolution providing that the
meeting be held elsewhere has been passed at the preceding
annual meeting of stockholders, and the articles of association
do not require that the annual meeting be held in Ireland.
Elan's Articles permit annual meetings to be held outside
Ireland if the above procedures are followed.
Under Irish law, extraordinary general stockholders'
meetings may be convened by the board of directors or at the
request of stockholders holding not less than one-tenth of the
paid-up capital of the company as at the relevant date. An
annual meeting must be held each year and not more than 15
months shall elapse between the date of one annual meeting and
that of the next. The Minister for Enterprise and Employment
of Ireland may, on the application of any stockholder, call or
<PAGE>
-11-
direct the calling of a general meeting if default is made in
holding such meeting. Irish law requires at least 14 days'
written notice of a meeting, except that an annual meeting or a
meeting for passing a special resolution requires at least 21
days' written notice.
Issuance of Shares. Irish company law restricts the
power of the board of directors to allot shares and to grant
share subscription rights and rights to convert securities of a
company into shares unless the stockholders pass a resolution
conferring such powers on the board of directors for periods of
up to five years. By an ordinary resolution passed by Elan's
stockholders on July 2, 1992, the Board of Directors is
authorized, during the period expiring July 1, 1997, to allot
shares up to the amount of Elan's present authorized but
unissued share capital. In addition, Elan may not pay,
directly or indirectly, a commission in excess of 10% of the
price at which shares are issued to any person subscribing for
or procuring subscriptions for Ordinary Shares.
Preemptive Rights. Irish law provides that equity
shares (and rights to subscribe for or convert securities into
equity shares) must, before being issued or granted for cash,
be offered, pro rata, to the existing holders of equity shares.
The stockholders may by special resolution eliminate this
requirement for periods of up to five years. Elan's
stockholders have passed the necessary special resolution
eliminating the requirement for these preemptive rights for the
period expiring July 1, 1997.
Derivative Action Suits. As a general principle of
Irish law, only a company itself can be the proper plaintiff
for the purposes of maintaining proceedings in respect of
wrongs done to the company. Neither an individual stockholder
nor any group of stockholders has any right of action in such
circumstances. There are, however, certain exceptions to this
principle available under equitable principles on a case-by-
case basis. For example, the controlling stockholders cannot
perpetrate a fraud on the minority stockholders or commit an
act which is illegal or ultra vires. Additionally, if a
company purports to act on the strength of a decision by a
simple majority where certain decisions call for more than a
simple majority, an individual stockholder is entitled to bring
suit. In cases where the controlling stockholders will not
institute proceedings in the name of the company where they are
properly called for, one or more of the aggrieved minority
stockholders may bring what has come to be known as a
derivative action, namely an action that derives from the
<PAGE>
-12-
injury to the company rather than the injury to individual
stockholders. A minority stockholder is also able to initiate
proceedings in the name of the company in certain other limited
circumstances.
Class Action Suits. In contrast to a derivative
action, which lies where it is alleged that a wrong has been
done to the company, Irish law permits an action by a
stockholder in his own right where he alleges that his personal
rights have been infringed. If such a stockholder has rights
which are identical to those enjoyed by other members or by all
members of the same class of stockholders, it is possible for
the stockholder to commence a suit in a representative capacity
on behalf of himself and the other persons affected.
Additionally, under Irish company law any member of a
company who claims that the affairs of the company are being
conducted, or that the powers of the directors of the company
are being exercised, in a manner oppressive to him or any of
the members (including himself) or in disregard of his or their
interests as members, may apply to the courts for an
appropriate order.
Interlocking and Interested Directors. Irish company
law provides that it shall be the duty of a director of a
company who is in any way, whether directly or indirectly,
interested in a contract or proposed contract with the company
to declare the nature of his interest at a meeting of the
directors of the company. Regulation 70(d) of Elan's Articles
provides, among other things, that a director may not generally
vote in respect of any contract or arrangement or any other
proposal whatsoever in which he has any material interest
otherwise than by virtue of his interests in shares or other
securities of or otherwise in or through Elan. Such regulation
also provides that if any question shall arise at any meeting
as to the materiality of a director's interest or as to the
entitlement of any director to vote and such question is not
resolved by his voluntarily agreeing to abstain from voting,
such question shall be referred to the members of the Board of
Directors whose votes are not in question. Additionally, it is
provided by such regulation that the stockholders of Elan may,
by ordinary resolution, ratify any transaction not duly
authorized by reason of a contravention of the regulation. The
above principles could apply where a director of Elan is or was
a director and/or stockholder of or otherwise connected with
another company with which Elan had entered into contracts.
<PAGE>
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Executive Shares and 'B' Executive Shares
There are presently issued 1,000 Executive Shares,
all fully paid, which are held by four persons. There are
presently issued 21,375 'B' Executive Shares, all fully paid,
which are held by one person. The Executive Shares do not
confer on the holders thereof the right to receive notice of or
to attend and vote at any meeting of Elan under any
circumstances except with respect to matters relating to them
as a class. A 'B' Executive Share confers on the holder
thereof the same voting rights as are enjoyed by a holder of an
Ordinary Share. Neither the Executive Shares nor the 'B'
Executive Shares have the right to any profits of Elan, except
as Elan may from time to time decide to distribute as a
dividend on such shares. These shares were established by Elan
as a means of enabling its key employees to participate in
profits of Elan. In the event of the winding up of Elan,
Executive Shares shall have a priority over Elan Ordinary
Shares, and the 'B' Executive Shares shall rank pari passu with
the Elan Ordinary Shares, with respect to return of capital but
neither the Executive Shares nor the 'B' Executive Shares shall
be entitled to participate further in any way in the profits or
assets of Elan. Elan does not presently intend to issue any
additional Executive or 'B' Executive Shares.
DESCRIPTION OF AMERICAN DEPOSITARY RECEIPTS
Elan ADRs evidencing Elan ADSs (each of which
represents one Ordinary Share) are issuable pursuant to the
Amended and Restated Deposit Agreement dated as of May 17, 1996
(the "Deposit Agreement") by and among Elan, The Bank of New
York, as depositary, and the owners and holders of ADRs. Each
Elan ADS represents one Ordinary Share (or evidence of a right
to receive such share) deposited in accordance with the Deposit
Agreement with The Bank of Ireland, Dublin, Ireland, as agent
of the Depositary, or any successor to such agent (the
"Custodian"). An Elan ADR may represent any number of Elan
ADSs.
The following statement includes a summary of certain
provisions of the Deposit Agreement. Such summary does not
purport to be complete and is qualified in its entirety by
reference to the Deposit Agreement, which has been incorporated
by reference as an exhibit to the Registration Statement of
which this Prospectus is a part. Additional copies of the
Deposit Agreement are available for inspection at the Corporate
Trust Office of the Depositary at 101 Barclay Street, New York,
<PAGE>
-14-
New York 10286, at the office of the Depositary's agent and at
the designated office of the Custodian in Dublin, Ireland.
Deposit and Withdrawal of Shares
The Depositary has agreed that upon the deposit with
the Custodian in Dublin, or upon delivery to the Depositary at
its Corporate Trust Office for forwarding to the Custodian at
the risk of the depositor, of Ordinary Shares or evidence of
rights to receive such Ordinary Shares, subject to the terms of
the Deposit Agreement, it will execute and deliver through its
Corporate Trust Office to the person or persons specified by
the depositor an Elan ADR or ADRs registered in the name of
such person or persons for the number of Elan ADSs issuable in
respect of such deposit.
Upon surrender of Elan ADRs at the Corporate Trust
Office of the Depositary, and upon payment of the charges
provided in the Deposit Agreement, Elan ADR holders are
entitled to delivery at the Corporate Trust Office of the
Depositary or at the office of the Custodian in Dublin of the
Ordinary Shares and any other property at the time represented
by the surrendered Elan ADRs, except that the Depositary may
make delivery of such other property at its Corporate Trust
Office. The forwarding of share certificates and other
documents of title for such delivery at the Corporate Trust
Office of the Depositary in New York City will be at the risk
and expense of the Elan ADR holder.
Dividends, Other Distributions and Rights
The Depositary is required, to the extent that in its
judgment it can convert Irish pounds (or any other foreign
currency) on a reasonable basis into dollars and transfer the
resulting dollars to the U.S., to convert all cash dividends
and other cash distributions which it receives on the
underlying Ordinary Shares into dollars, and to distribute the
amount thus received to the holders of Elan ADRs in proportion
to the number of Elan ADSs representing such Ordinary Shares
held by each of them. The amount distributed will be reduced
by any amounts required to be withheld by Elan or the
Depositary on account of taxes. If the Depositary determines
that in its judgment any foreign currency received by it cannot
be so converted and transferred to the U.S., the Depositary may
distribute the foreign currency received by it or in its
discretion hold such foreign currency for the respective
accounts of the Elan ADR holders entitled to receive the same.
<PAGE>
-15-
If a distribution by Elan consists of a stock
dividend or a free distribution of Ordinary Shares, the
Depositary may, with Elan's approval, and shall if Elan so
requests, distribute to the holders of outstanding Elan ADRs,
in proportion to their holdings, additional Elan ADRs for an
aggregate number of Elan ADSs representing the number of
Ordinary Shares received as such dividend or free distribution.
If additional Elan ADRs are not so distributed, each Elan ADS
shall thenceforth also represent the additional Ordinary Shares
distributed with respect to the Ordinary Shares represented
thereby.
If Elan offers, or causes to be offered, to the
holders of Ordinary Shares any right to subscribe for
additional Ordinary Shares or any rights of any other nature,
the Depositary will, if requested by Elan, either (i) make such
rights available to holders of Elan ADRs by means of warrants
or otherwise, if lawful and feasible, or (ii) if making such
rights available is not lawful or not feasible, or if the
rights represented by such warrants or other instruments are
not exercised and appear to be about to lapse, the Depositary
in its discretion may sell such rights or warrants or other
instruments at public or private sale, at such place or places
and upon such terms as the Depositary may deem proper, and
allocate the proceeds of such sales for the accounts of the
holders of Elan ADRs otherwise entitled thereto upon an
averaged or other practicable basis without regard to any
distinctions among such holders because of exchange
restrictions, or the date of delivery of any Elan ADR or ADRs,
or otherwise. The Depositary will not make available to
holders of Elan ADRs any right to subscribe for or to purchase
any securities unless a registration statement is in effect or
unless the offering and sale of such securities to such holders
is exempt from registration under the provisions of the
Securities Act.
Should such distribution of rights not be possible,
the Depositary intends to endeavor to dispose of the rights for
the benefit of the holders of Elan ADRs, as stated above. Any
disposal of rights may substantially reduce the equity of the
holders of Elan ADRs.
In the event that the Depositary determines that any
distribution in property (including Ordinary Shares or rights
to subscribe therefor) is subject to any tax which the
Depositary is obligated to withhold, the Depositary may dispose
of all or a portion of such property in such amounts and in
such manner as the Depositary deems necessary and practicable
<PAGE>
-16-
to pay such taxes, by public or private sale, and the
Depositary shall distribute the net proceeds of any such sale
or the balance of any such property, after deduction of such
taxes, to the Elan ADR holders entitled thereto.
Record Dates
Whenever any cash dividend or other cash distribution
becomes payable or any distribution other than cash is made, or
whenever rights are issued with respect to the Ordinary Shares,
or whenever the Depositary receives notice of any meeting of
holders of securities represented by Elan ADRs, the Depositary
will fix a record date for the determination of the holders of
Elan ADRs who are entitled to receive such dividend,
distribution or rights, or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting
rights at any such meeting, subject to the provisions of the
Deposit Agreement.
Voting of the Underlying Ordinary Shares
Upon receipt of a notice of any meeting of holders of
Ordinary Shares or securities represented by the Elan ADRs, the
Depositary, as soon as practicable thereafter, will mail the
information contained in such notice of meeting to the record
holders of Elan ADRs.
The record holders of Elan ADRs at the close of
business on the date specified by the Depositary are entitled
under the Deposit Agreement, subject to any applicable
provisions of law and Elan's Articles, to instruct the
Depositary as to the exercise of the voting rights, if any,
pertaining to the Ordinary Shares or other securities
represented by the Elan ADSs. The Depositary has agreed it
will endeavor, insofar as practicable, to vote the Ordinary
Shares or other securities so represented in accordance with
such instructions. The Depositary has agreed not to vote the
Ordinary Shares or other securities so represented unless it
has received such instructions from the record holders of Elan
ADRs.
Amendment and Termination of the Deposit Agreement
The Elan ADRs and the Deposit Agreement may at any
time be amended by agreement between Elan and the Depositary.
Any amendment which imposes or increases any fees or charges
(other than the fees of the Depositary for the execution and
delivery or cancellation of Elan ADRs and taxes or other
<PAGE>
-17-
governmental charges), or which otherwise prejudices any
substantial existing right of Elan ADR holders, will not take
effect as to outstanding Elan ADRs until the expiration of
three months after notice of such amendment has been given to
the record holders of outstanding Elan ADRs. Every holder of
an Elan ADR at the time such amendment so becomes effective
will be deemed, by continuing to hold such Elan ADR, to consent
to such amendment and to be bound by the Deposit Agreement as
so amended. In no event may any amendment impair the right of
any Elan ADR holder to surrender his Elan ADR and receive
therefor the underlying Ordinary Shares and any other property
represented thereby.
Whenever so directed by Elan, the Depositary has
agreed to terminate the Deposit Agreement by mailing notice of
such termination to the record holders of all Elan ADRs then
outstanding at least 30 days prior to the date fixed in such
notice of such termination. The Depositary may likewise
terminate the Deposit Agreement at any time 60 days after the
Depositary shall have delivered to Elan a notice of its
election to so resign and a successor Depositary shall not have
been appointed and accepted its appointment within such 60
days. The Deposit Agreement provides that Elan will use its
best efforts to appoint a successor Depositary. If any Elan
ADRs remain outstanding after the day of termination, the
Depositary thereafter will discontinue the registration of
transfer of Elan ADRs, will suspend the distribution of
dividends to the holders thereof and will not give any further
notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect
dividends or other distributions pertaining to the underlying
Ordinary Shares, shall sell rights as provided in the Deposit
agreement, and shall continue to deliver securities together
with any dividends or other distribution received with respect
thereto and the net proceeds of the sale of any rights or other
property, in exchange for surrendered Elan ADRs. At any time
after the expiration of two years from the date of termination,
the Depositary has the right under the Deposit Agreement to
sell the underlying Ordinary Shares and any other property and
hold the net proceeds for the pro rata benefit of the holders
of Elan ADRs which have not theretofore been surrendered.
Charges of Depositary
The Depositary charges a fee to the party to whom
Elan ADRs are delivered against deposits and the party
surrendering Elan ADRs for delivery of Ordinary Shares or other
underlying securities represented by the Elan ADRs issued or
<PAGE>
-18-
surrendered. Elan pays all other charges of the Depositary,
including charges for issuance of Elan ADRs payable as a
dividend or distribution or in connection with a rights
offering to stockholders, except for taxes and other
governmental charges, any applicable transfer or registration
fees on the deposit or withdrawal of Ordinary Shares, and
certain cable, telex, facsimile and delivery charges, any of
which are payable by persons depositing or withdrawing Ordinary
Shares, and such expenses as are incidental to the conversion
of foreign currency into dollars. Elan will pay all charges of
the Depositary in connection with the initial issuance of the
Elan ADRs evidencing the Elan ADSs offered hereby.
General
Elan will through the Depositary distribute to
holders of Elan ADRs annual reports including its financial
statements. Neither the Depositary nor Elan will be liable to
the holders of Elan ADRs if prevented or delayed by law or any
circumstances beyond their control in performing their
obligations under the Deposit Agreement. The obligations of
Elan and the Depositary under the Deposit Agreement are
expressly limited to performing in good faith their respective
duties specified therein.
The Elan ADRs are transferable on the books of the
Depositary; provided, however, that the Depositary may close
the transfer books, at any time or from time to time, when
deemed expedient by it in connection with the performance of
its duties. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination or
surrender of any Elan ADR or withdrawal of Ordinary Shares, the
Depositary or the Custodian may require payment of a sum
sufficient to reimburse it for any tax or other governmental
charge and any stock transfer or registration fee with respect
thereto and payment of any applicable fees payable by the
holders of Elan ADRs. The Depositary may refuse to execute and
deliver Elan ADRs, register the transfer of any Elan ADR or
make any distribution of, or related to, Ordinary Shares until
it has received such proof of citizenship or residence,
exchange control approval or other information as it may deem
necessary or proper. The execution and delivery, transfers and
surrenders of Elan ADRs generally may be suspended, during any
period when the transfer books of the Depositary are closed, if
such suspension action is deemed necessary or advisable by the
Depositary or Elan at any time or from time to time. Holders
of Elan ADRs are entitled to withdraw their deposited Ordinary
Shares at any time, subject only to (i) temporary delays caused
<PAGE>
-19-
by closing the transfer books of the Depositary or Elan, as the
case may be, or the deposit of shares in connection with voting
at a stockholders' meeting, or the payment of dividends; (ii)
the payment of fees, taxes and similar charges; and (iii)
compliance with any U.S. or foreign laws or governmental
regulations relating to the Elan ADRs or the withdrawal of
deposited securities. The holders of Elan ADSs may inspect the
books for the registration and transfer of Elan ADRs at all
reasonable times, provided that such inspection shall not be
for the purpose of communicating with holders of Elan ADSs in
the interest of a business or object other than the business of
Elan or a matter related to the Deposit Agreement or the Elan
ADSs.
LEGAL MATTERS
Certain legal matters relating to the Elan ADSs will
be passed upon by Cahill Gordon & Reindel, a partnership
including a professional corporation, New York, New York,
United States counsel for Elan. Certain Irish legal matters,
including the validity of the Ordinary Shares, will be passed
upon by McCann FitzGerald Solicitors, Dublin, Ireland, Irish
counsel for Elan. Cahill Gordon & Reindel will rely upon
McCann FitzGerald Solicitors with respect to certain matters
governed by Irish law.
EXPERTS
The consolidated financial statements and schedule of
Elan as of March 31, 1994 and 1995, and for each of the years
in the three-year period ended March 31, 1995, incorporated
herein by reference, have been audited and reported upon by
KPMG, independent chartered accountants. Such consolidated
financial statements and schedule have been incorporated herein
by reference in reliance upon the report by KPMG, incorporated
herein by reference, and upon the authority of said firm as
experts in accounting and auditing.
The consolidated financial statements and schedule of
Athena appearing in Athena's Annual Report (Form 10-K) for the
year ended December 31, 1995, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference.
Such consolidated financial statements and schedule are
incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting
and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission
Registration Fee ....................................$4,610*
Legal Services and Expenses (including
Blue Sky fees and expenses) .........................$2,000**
Total .................................................$6,610**
- -------------------------
* Previously paid in connection with the F-4 Registra-
tion Statement.
** Estimated.
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Paragraph 113 of the Articles of Association of the
registrant provides as follows:
113. Every Director and other officer of the
Company (other than an Auditor) shall be indemnified out
of the assets of the Company against any cost, expense,
liability or other matter incurred by him in defending
any proceedings, whether civil or criminal, in relation
to his acts while acting in such office in which judgment
is given in his favour or in which he is acquitted or in
connection with any application in which relief is
granted to him by the Court under the Acts.
Section 200 of the Irish Companies Act of 1963 (as
amended) provides as follows:
Subject as hereinafter provided, any provision
whether contained in the articles of a company or in any
contract with a company or otherwise for exempting any
officer of the company or any person employed by the
company as auditor from, or indemnifying him against, any
liability which by virtue of any rule of law would
otherwise attach to him in respect of any negligence,
default, breach of duty or breach of trust of which he
may be guilty in relation to the company shall be void,
so, however, that --
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<PAGE>
(a) nothing in this section shall operate to
deprive any person of any exemption or right to be
indemnified in respect of anything done or omitted to be
done by him while any such provision was in force; and
(b) notwithstanding anything in this section, a
company may, in pursuance of any such provision as
aforesaid, indemnify any such officer or auditor against
any liability incurred by him in defending proceedings,
whether civil or criminal, in which judgment is given in
his favour or in which he is acquitted, or in connection
with any application under section 391 or section 42 of
the Companies (Amendment) Act, 1983, in which relief is
granted to him by the court.
Item 16. EXHIBITS
The Exhibit Index immediately preceding the exhibits
is incorporated herein by reference.
Item 17. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment
to this Registration Statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any
facts or events arising after the effective date
of this Registration Statement (or the most
recent post-effective amendment thereof) which
individually or in the aggregate represent a
fundamental change in the information set forth
in this Registration Statement; and
(iii) to include any material information
with respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
II-2
<PAGE>
the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration
statement;
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering; and
(4) To file a post-effective amendment to the
Registration Statement to include any financial
statements required by Rule 3-19 of Regulation S-X at
the start of any delayed offering or throughout a
continuous offering.
B. The undersigned registrant hereby undertakes
that:
For purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than
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<PAGE>
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form F-3 and has duly caused this Post-Effective Amendment No.
1 to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of
Dublin, Republic of Ireland, on June 19, 1996
ELAN CORPORATION, plc
By:
Thomas G. Lynch
-----------------------
Thomas G. Lynch
Chief Financial Officer
Executive Vice President
Pursuant to the requirements of the Securities Act of
1933, this Amendment No. 1 to the Registration Statement has
been signed by the following persons in the capacities and on
the dates indicated:
Signatures Capacity Date
---------- -------- ----
*
- --------------------- Chairman of the Board June 19, 1996
Donald E. Panoz
*
- --------------------- Chief Executive June 19, 1996
Donal J. Geaney Officer/President
and Director
(Principal
Executive Officer)
Thomas G. Lynch
- ----------------------- Chief Financial June 19, 1996
Thomas G. Lynch Officer/Executive
Vice President
(Principal
Financial Officer)
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<PAGE>
Signatures Capacity Date
----------- -------- ----
*
- ---------------------- Executive Vice President June 19, 1996
Kenneth W. McVey and Director
*
- ---------------------- Group Financial Controller June 19, 1996
William F. Daniel (Principal
Accounting Officer)
*
- ----------------------- Director June 19, 1996
Howard C. Ansel, Ph.D.
*
- ----------------------- Director June 19, 1996
Garo Armen, Ph.D.
*
- ----------------------- Director June 19, 1996
James Balog
*
- ----------------------- Director June 19, 1996
David R. Bethune
*
- ----------------------- Director June 19, 1996
Brendan Boushel
*
- ----------------------- Director June 19, 1996
Charles Greyston
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<PAGE>
Signatures Capacity Date
---------- -------- ----
*
- ----------------------- Director June 19, 1996
Kevin McIntyre, M.D.
Elan Pharmaceutical Research Corp.
Authorized Representative
Thomas G. Lynch
- ----------------------- Secretary June 19, 1996
Thomas G. Lynch
*By: Thomas G. Lynch
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Thomas G. Lynch
Attorney-in-Fact
II-7
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EXHIBIT INDEX
Exhibit No. Description
4.1 - Amended and Restated Deposit Agreement, dated as
of May 17, 1996 among Elan Corporation plc, The
Bank of New York, as depositary, and the owners
and holders from time to time of the ADRs.
4.2 - Specimen of American Depositary Receipt,
evidencing American Depositary Receipts of Elan
(included as part of Exhibit 4.1)
5.1 - Opinion of McCann FitzGerald with respect to the
legality of the securities registered hereby.
23.1 - Consent of McCann FitzGerald (included as part
of Exhibit 5.1)
23.2 - Consent of KPMG Peat Marwick
23.3 - Consent of Ernst & Young LLP, independent
auditors
24.1 - Powers of Attorney*
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* Previously filed.
Exhibit 5.1
[Letterhead of McCann FitzGerald]
June 18, 1996
Elan Corporation, plc
Monksland
Athlone
Co. Westmeath
Ireland
Dear Sirs:
We are acting as Irish Counsel for Elan Corporation,
plc ("Elan"), a public limited company incorporated under the
laws of Ireland, in connection with the proposed offer (the
"Offering") by Elan of up to 215,798 American Depositary Shares
of Elan (the "ADSs" and each an "ADS"), each ADS representing
one ordinary share, par value 4 Irish pence, of Elan (the
"Ordinary Shares") upon the terms set forth in the Registration
Statement and the related prospectus (the "Registration
Statement") to be filed by Elan under the Securities Act of
1933, as amended (the "Act").
In connection with this opinion, we have examined and
have assumed the truth and accuracy of the contents of the
original or copies of minutes of meetings of the shareholders
and Board of Directors of Elan, the register of members of
Elan, a copy of the Memorandum of Association and of the
Articles of Association of Elan, as amended, and such documents
and certificates of officers of and advisers to Elan and of
public officials as to factual matters as we have deemed
necessary or appropriate for the purposes of this opinion but
have made no independent investigation regarding such factual
matters. In our examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies
and the authenticity of the originals of such documents. We
have assumed that none of the resolutions and authorities of
the shareholders or Directors of Elan upon which we have relied
have been varied, amended or revoked or will have been varied,
amended or revoked in any respect or have expired or will have
expired at the time of issue of the relevant Ordinary Shares
and that all of the Ordinary Shares will be issued in
accordance with such resolutions and authorities.
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-2-
We are admitted to practice law only in Ireland and
accordingly, we express no opinion on the laws of any
jurisdiction other than the laws (and the interpretation
thereof) of Ireland in force as at the date hereof. We assume
that the transactions contemplated by the Registration
Statement are lawful under United States federal law, New York
State law and all other applicable laws (if any).
Based upon the foregoing, we are of the opinion that
the Ordinary Shares underlying the portion of the ADSs to be
offered pursuant to the Registration Statement have been duly
authorised and upon issue by Elan in accordance with the terms
of the Merger Agreement (as defined in the Registration
Statement) will be validly issued, fully paid and not subject
to calls for additional payment of any kind and no personal
liability attaches to the holders thereof purely by reason of
the ownership thereof.
We hereby consent to the filing of this opinion with
the United States Securities and Exchange Commission as an
exhibit to the Registration Statement and to the references to
our firm under the caption "Legal Matters" in the Registration
Statement and the prospectus. Our consent to such references
does not constitute a consent under Section 7 of the Act, as in
consenting to such references, we have not certified any part
of the Registration Statement and do not otherwise come within
the categories of persons whose consent is required under
Section 7 or under the rules and regulations of the United
States Securities and Exchange Commission thereunder.
This opinion is being delivered to you and may not be
relied upon or distributed by any other person other than
Cahill Gordon & Reindel, without our consent. This opinion is
to be construed in accordance with and governed by the laws of
Ireland.
Yours faithfully,
McCann FitzGerald
Exhibit 23.2
Consent of KPMG
The Directors
Elan Corporation, plc
Monksland
Athlone
Co Westmeath
We consent to the incorporation by reference in the
Post-Effective Amendment No. 1 on Form F-3 to the Registration
Statement on Form F-4 dated June 19, 1996 of Elan Corporation,
plc of our report dated May 5, 1995 relating to the
consolidated balance sheets of Elan Corporation, plc as of
March 31, 1995 and 1994, and the related consolidated
statements of income, cashflows and shareholders' equity and
related schedule for each of the years in the three year period
ended March 31, 1995, which report appears in the March 31,
1995 Annual Report on Form 20-F of Elan Corporation, plc.
KPMG
Chartered Accountants
Dublin, Ireland
June 19, 1996
Exhibit 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Post-Effective Amendment No. 1 on Form F-3 to
the Registration Statement on Form F-4 and related Prospectus
of Elan Corporation, plc for the registration of shares of its
Ordinary Shares and to the incorporation by reference therein
of our report dated February 2, 1996, with respect to the
consolidated financial statements and schedule of Athena
Neurosciences, Inc. ("Athena") included in Athena's Annual
Report (Form 10-K) for the year ended December 31, 1995, filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
June 19, 1996
