Exhibit 5.4
[LETTERHEAD OF CLIFFORD CHANCE LIMITED LIABILITY PARTNERSHIP]
9 September 2005
Elan Finance public limited company
Elan Finance Corp.
Elan Corporation, plc
c/o Elan Corporation, plc
Lincoln House
Lincoln Place
Dublin 2
Ireland
Dear Sirs
ELAN FINANCE CORP. AND ELAN FINANCE PUBLIC LIMITED COMPANY (THE "CO-ISSUERS"
AND EACH A "CO-ISSUER")
ELAN CORPORATION, PLC ("ELAN")
ELAN PHARMA LIMITED, ATHENA NEUROSCIENCES (EUROPE) LIMITED, MEADWAY
PHARMACEUTICALS LTD. AND THE LIPOSOME COMPANY LIMITED (EACH, AN "ENGLISH
SUBSIDIARY GUARANTOR" AND TOGETHER, THE "ENGLISH SUBSIDIARY GUARANTORS")
US$850,000,000 7 3/4% SENIOR EXCHANGE NOTES DUE 2011 AND
US$300,000,000 SENIOR FLOATING RATE EXCHANGE NOTES DUE 2011
We have acted on the instructions of Elan Finance Corp., a Delaware corporation,
Elan Finance public limited company, an Irish public limited company, Elan
Corporation, plc, an Irish public limited company and certain of Elan's English
subsidiaries listed above in connection with the Co-Issuers' offer to exchange:
(a) US $850,000,000 of the Co-Issuers' 7 3/4% Senior Exchange Notes due
2011; and
(b) US $300,000,000 of the Co-Issuers' Senior Floating Rate Exchange Notes
due 2011 (together, the "EXCHANGE NOTES"),
for an identical principal amount at maturity of the Co-Issuers' 7 3/4% Senior
Exchange Notes due 2011 and the Co-Issuers' Senior Floating Rate Exchange Notes
due 2011 (together the "OUTSTANDING EXCHANGE NOTES" and together with the
Exchange Notes the "NOTES").
1. DOCUMENTS
For the purpose of this letter, we have examined inter alia the
following:
1.1 An e-mailed copy of the executed version of the indenture dated 16
November 2004 relating to the Exchange Notes (the "INDENTURE") including
the note guarantees contained therein provided by the English Subsidiary
Guarantors (the "GUARANTEES");
1.2 An e-mailed copy of the deposit and custody agreement dated 16 November
2004 relating to the Exchange Notes (the "DEPOSIT AND CUSTODY
AGREEMENT");
1.3 A copy of the memorandum and articles of association and the certificate
of incorporation (and any certificate of incorporation on change of
name) of each of the English Subsidiary Guarantors (together, the
"CONSTITUTIVE DOCUMENTS");
1.4 An e-mailed certified true copy of the written resolutions of the board
of directors of each of the English Subsidiary Guarantors (the "BOARD
RESOLUTIONS");
1.5 A copy of a certificate from Companies House dated 8 September 2005 for
each of the English Subsidiary Guarantors certifying inter alia that
each of the English Subsidiary Guarantors has been in continuous and
unbroken existence since the date of incorporation, that no action is
currently being taken by the Registrar of Companies to strike the
company off the register and dissolve it as defunct and confirming, so
far as the Registrar is aware, the solvency of such English Subsidiary
Guarantor; (together, the "COMPANIES HOUSE CERTIFICATES");
1.6 An e-mailed copy of a certificate of an officer of each English
Subsidiary Guarantor dated 16 November 2004 (the "OFFICERS'
CERTIFICATES"); and
1.7 An e-mailed certified true copy of a written resolution dated 10
November 2004 of the shareholders of each of the English Subsidiary
Guarantors (the "SHAREHOLDER RESOLUTIONS" and, together with the
Constitutive Documents, the Board Resolutions and the Officers'
Certificates, the "AUTHORISATION DOCUMENTS").
In this opinion the Indenture and the Deposit and Custody Agreement are
together referred to as the "DOCUMENTS". Unless defined herein, terms
and expressions which are defined in the Indenture have the same
respective meanings where used in this letter.
2. ENGLISH LAW
The opinions set out in this letter relate only to English law as
applied by the English courts as at today's date. This letter expresses
no opinion on the laws of any other jurisdiction and is governed by
English law. We assume no responsibility for revising or updating our
opinion to take into account changes in law, changes in practice or
events or circumstances occurring after the date of this opinion.
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3. ASSUMPTIONS
The opinions set out in this letter are based upon the following
assumptions:
3.1 The genuineness of all signatures, stamps and seals, the conformity to
the originals of all documents supplied to us as emailed, certified,
photostatic or faxed copes and the authenticity of the originals of such
documents;
3.2 That the Documents were duly authorised by and duly executed and
delivered by or on behalf of each of the parties thereto (except the
English Subsidiary Guarantors) and that entering into the Documents and
the performance thereof was at the time of entry into the transactions
contemplated therein and is currently within the capacity and powers of
each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English
Subsidiary Guarantors referred to above were at the time of entry into
the Documents and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the
English Subsidiary Guarantors were duly adopted by the directors of such
English Subsidiary Guarantor, have not been revoked or suspended and are
in full force and effect;
3.5 That the resolutions set out in the Shareholder Resolutions of each of
the English Subsidiary Guarantors were duly adopted by the shareholders
of such English Subsidiary Guarantor, had not at the time of entry into
the Documents and have not since then been revoked or suspended and were
at the time of entry into the Documents and remain in full force and
effect;
3.6 That the matters set out in the Companies House Certificates of each of
the English Subsidiary Guarantors were at the time of entry into the
Documents and are now true and accurate in all respects;
3.7 That each director of each of the English Subsidiary Guarantors had at
the time of entry into the Documents and has since then disclosed any
interest which he may have in the transactions contemplated by the
Documents in accordance with the provisions of the Companies Act 1985
and the articles of association of such relevant English Subsidiary
Guarantor and that none of the directors of that English Subsidiary
Guarantor had or has any interest in such transactions except to the
extent permitted by the articles of association of that English
Subsidiary Guarantor;
3.8 That upon entry into the transactions contemplated by the Indenture
there had been and that since then there has been no alteration in the
status or condition of each of the English Subsidiary Guarantors as
revealed by a search carried out against each of the English Subsidiary
Guarantors at the Companies Registration Office in London at 12.00 p.m.
on 8 September 2005 and an enquiry by telephone in respect of each of
the English Subsidiary Guarantors at the Central Index of Winding Up
Petitions at 12.50 p.m. on 8 September 2005;
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3.9 That the directors of each of the English Subsidiary Guarantors, in
resolving to give the guarantees under the Indenture and to execute,
deliver and perform the Documents, acted bona fide and in the interests
of that English Subsidiary Guarantor;
3.10 The absence of any other arrangements between any of the parties to the
Documents which modify or supersede any of the terms of the Documents;
3.11 That all acts, conditions or things required to be fulfilled, performed
or effected in connection with the Documents under the laws of any
jurisdiction other than England have been duly fulfilled, performed and
effected; and
3.12 That as a matter of New York law (being the law by which each of them is
expressed to be governed) the Documents constitute legal, valid and
binding obligations of each of the parties thereto enforceable in
accordance with their respective terms.
4. OPINION
On the basis of such assumptions we are of the opinion that the
execution of the Documents, and the giving of the Guarantees by each
English Subsidiary Guarantor pursuant to the Indenture, have been duly
authorised by that English Subsidiary Guarantor.
5. LIMITS OF OUR OPINION
We express no opinion as to any agreement, instrument or other document
other than as specified in this letter, nor as to any liability to tax
which may arise or be suffered as a result of or in connection with the
Documents.
This opinion is given solely for the purposes of the Form F-4 to be
filed with the United States Securities and Exchange Commission (the
"COMMISSION") in connection with the Exchange Notes. Furthermore this
opinion is given on the basis that any limitation on the liability of
any other adviser to all or any of the persons to whom this letter is
addressed, whether or not we are aware of that limitation, will not
adversely affect our position in any circumstances.
We hereby consent to the filing of this opinion as an exhibit to the
Co-Issuers' Registration Statement on Form F-4 to be filed with the
United States Securities and Exchange Commission with respect to the
Exchange Notes and the Guarantees, without admitting that we are
"EXPERTS" within the meaning of the Securities Act of 1933, as amended,
or the rules and regulations of the Commission thereunder with respect
to any part of the Registration Statement.
Yours faithfully
/s/ Clifford Chance
CLIFFORD CHANCE
LIMITED LIABILITY PARTNERSHIP
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