Exhibit 5.1
[LETTERHEAD OF A&L GOODBODY]
[A&L GOODBODY LOGO]
our ref | JO 01-330588 your ref | date | 9 September 2005
To: Elan Corporation plc
Elan Finance public limited company
The Irish Subsidiaries (as defined below)
c/o Elan Corporation, plc
Treasury Building
Lower Grand Canal Street
Dublin 2
Ireland
ELAN FINANCE PUBLIC LIMITED COMPANY
ISSUE OF US$850,000,000 7 3/4% SENIOR FIXED RATE NOTES DUE 2011 AND
ISSUE OF US$300,000,000 SENIOR FLOATING RATE NOTES DUE 2011 (THE EXCHANGE NOTES)
CO-ISSUED WITH ELAN FINANCE CORP. (TOGETHER THE ISSUERS EACH AN ISSUER)
AND
FULLY AND UNCONDITIONALLY GUARANTEED BY ELAN CORPORATION, PLC AND ITS EXISTING
AND FUTURE SUBSIDIARY NOTE GUARANTORS
Dear Sirs,
We have acted as legal advisors as to matters of Irish law to Elan Corporation
plc (the GUARANTOR) and to Elan Finance public limited company (ELAN FINANCE) in
connection with the issue of the Exchange Notes by Elan Finance and Elan Finance
Corp. which Notes are fully and unconditionally guaranteed by the Guarantor and
its Subsidiary Note Guarantors on an unsecured basis in exchange for up to
US$850,000,000 of outstanding 7 3/4% Senior Fixed Rate Notes Due 2011 and up to
US$300,000,000 of outstanding Senior Floating Rate Notes Due 2011 (the Original
Notes, and together with the Exchange Notes THE NOTES). The Exchange Notes will
be issued under the Indenture (as defined below).
DOCUMENTS EXAMINED
- ------------------
1. For the purpose of giving this Opinion we have examined
[A&L GOODBODY LOGO]
1.1. the Form-4 Registration Statement dated 9 September 2005
relating to the Exchange Notes (the REGISTRATION STATEMENT);
1.2. the Indenture dated 16 November, 2004 relating to the Notes
(the INDENTURE) made between the Issuers, the Guarantor, the
Subsidiary Note Guarantors and The Bank of New York as Trustee
(the TRUSTEE);
1.3. the Deposit and Custody Agreement dated 16 November 2004 made
between the Issuers, the Guarantor, the Subsidiary Note
Guarantors and The Bank of New York as depositary and
custodian (the CUSTODIAN)
1.4. a certified copy of the Certificate of Incorporation and
Memorandum and Articles of Association of the Guarantor;
1.5. a certified copy of the Certificate of Incorporation,
Certificate of Entitlement to do business and Memorandum &
Articles of Association of Elan Finance;
1.6. a certified copy of the Certificate of Incorporation and
Memorandum & Articles of Association of each of the Irish
Subsidiaries;
1.7. the form of the Notes;
1.8. a certified copy of minutes of a Meeting of the Board of
Directors of the Guarantor held on 26 October, 2004;
1.9. a certified copy of minutes of a Meeting of a committee of the
Board of Directors of the Guarantor held on 9 November, 2004;
1.10. a certified copy of minutes of a Meeting of a committee of the
Board of Directors of the Guarantor held on 10 November, 2004;
1.11. a certified copy of minutes of a Meeting of the Board of
Directors of Elan Finance held on 10 November, 2004;
1.12. a certified copy of a minutes of a Meeting of the Board of
Directors of each of the Irish Subsidiaries held on 10
November 2004;
1.13. a Certificate of the Secretary of the Guarantor dated 16
November, 2004 as to the beneficial ownership of the entire of
the issued share capital of the Irish Subsidiaries by the
Guarantor; and
2
[A&L GOODBODY LOGO]
1.14. such other documents we regard as necessary or desirable for
the purpose of giving this Opinion.
BASES OF OPINION
- ----------------
2.
2.1. In this Opinion
(i) the AGREEMENT means the Deposit and Custody Agreement;
(ii) the DOCUMENTS means the Agreement and the Indenture;
(iii) the IRISH PARTIES means Elan Finance and the Guarantor
and the Irish Subsidiaries.
(iv) The IRISH SUBSIDIARIES means the Irish companies named
in the Schedule hereto.
2.2. Terms and expressions which are defined in the Registration
Statement or in the Documents have the same respective
meanings where used in this Opinion.
2.3. This Opinion is confined to matters of Irish law as applied by
the Courts of Ireland as at the date hereof and is given on
the basis that it shall be governed by and construed in
accordance with Irish law without reference to the provision
of other laws imported by private international law. We have
made no investigation of, and express no opinion as to, the
laws of any other jurisdiction.
2.4. This Opinion is limited strictly to the matters stated herein
and is not to be read as extending, by implication or
otherwise, to any other matter.
2.5. This Opinion is addressed only to Elan Finance, the Guarantor
and the Irish Subsidiaries and their respective directors and
may not be furnished to or relied upon by any other person
other than with our prior written approval, it being
understood that the Opinion is given as of the date hereof and
may not be relied upon as of any later date.
ASSUMPTIONS:
- ------------
3
[A&L GOODBODY LOGO]
3. For the purpose of issuing this Opinion we have made the following
assumptions without any responsibility on our part if any assumption
proves to have been untrue as we have not independently verified any
assumption:
3.1. that under the laws of New York:
3.1.1. the form of the Notes; and
3.1.2. the provisions of the Documents
are valid and binding on the parties to be bound thereby;
3.2. the authenticity of all documents submitted to us as
originals;
3.3. the completeness and conformity to the originals of all copy
letters, resolutions, documents, certificates, permissions,
minutes, licences, authorisations and all other copy documents
of any kind furnished to us;
3.4. the genuineness of all signatures and seals upon original
documents;
3.5. the accuracy and completeness of all information appearing on
public records;
3.6. that the certified copies produced to us of minutes of
meetings (or extracts thereof) and/or of resolutions are true
copies and correctly record the proceedings at such meetings
and/or the subject matter which they purport to record, and
that all meetings referred to in such copies were duly
convened and held, that those present at any such meetings
acted bona fide throughout, that all resolutions set out in
such copies were duly passed and that no further resolutions
have been passed or corporate or other actions taken which
would or might alter the effectiveness thereof;
3.7. that the Documents have each been executed and delivered by
each of the parties thereto (other than the Irish Parties) in
the respective forms examined by us;
3.8. the due authorisation, execution and delivery of the Documents
by each of the parties thereto other than the Irish Parties
and that the performance thereof is within the capacity and
power of each of the parties thereto other than the Irish
Parties;
3.9. 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;
4
[A&L GOODBODY LOGO]
3.10. that on each interest payment date the Notes will be in bearer
form, listed on the Irish Stock Exchange or another stock
exchange recognised by the Irish Revenue Commissioners for the
purpose of Section 64 of the Taxes Consolidation Act, 1997,
and book entry interests in such Notes will be held in DTC;
3.11. that each of the parties to the Agreements other than the
Irish Parties are able lawfully to enter into such agreement
or deed;
3.12. that the Notes will have been duly prepared and completed in
accordance with the provisions and arrangements contained or
described in the Registration Statement and the Indenture;
3.13. that the obligations secured by the Notes are not charged or
encumbered on property situated in Ireland;
3.14. that no payment of interest on the Notes will be made through
or by a paying agent in Ireland; and
3.15. any Exchange Notes which might be issued under an Exchange
Offer will constitute substitute evidence of the indebtedness
originally represented by the Notes tendered in the Exchange
Offer and will not represent the incurrence of new
indebtedness by the Issuers.
Even if the assumptions set out at 3.7, 3.8 and 3.11 should prove to be
incorrect such incorrectness would not affect the nature of our Opinion
as to the due execution and delivery of the Documents by the Irish
Parties.
OPINION
- -------
4. Subject to the assumptions set out at 3 above, and the qualifications
set out at 5 below, we are of the opinion that:
THE GUARANTOR
-------------
4.1. the Guarantor is duly incorporated under the laws of Ireland
as a public company with limited liability and has full power
and capacity to give the Guarantee as set out in the
Indenture, to execute and deliver the Documents, to undertake
and perform the obligations expressed to be assumed by it
therein, and has all necessary corporate capacity to carry on,
amongst other things, the business of developing,
manufacturing, buying, selling, distributing and dealing in
all kinds of pharmaceutical,
5
[A&L GOODBODY LOGO]
medicinal, proprietary and industrial preparations, compounds
and articles of every kind and carrying on any other business,
except the issuing of policies and insurance, which may seem
to the Guarantor capable of being conveniently carried on in
connection with the business of developing, manufacturing,
buying, selling, distributing or dealing in, pharmaceutical,
medicinal, proprietary and industrial preparations, compounds
and articles of every kind and promoting and establishing
subsidiary companies and holding the share capital of the
same;
4.2. based only upon searches carried out at the Companies
Registration Office in Dublin and at the Central Office of the
High Court in Ireland in each case on the date hereof, no
order has been made or resolution passed for the winding up
of, or the appointment of an examiner to, the Guarantor and no
notice of the appointment of any receiver or liquidator to the
Guarantor has been filed;
4.3. the Documents have each been duly authorised, executed and
delivered by the Guarantor and the obligations expressed to be
accepted by the Guarantor therein are valid and legally
binding on, and are in a form capable of enforcement against
the Guarantor under the laws of Ireland in the Courts of
Ireland in accordance with their respective terms;
4.4. all actions necessary under the laws of Ireland have been duly
taken by or on behalf of the Guarantor and all authorisations
and approvals necessary under the laws of Ireland have been
duly obtained for the authorisation, execution, delivery by
the Guarantor of the Documents and the performance by the
Guarantor of its obligations thereunder;
ELAN FINANCE
------------
4.5. Elan Finance is duly incorporated under the laws of Ireland as
a public company with limited liability and has full power and
capacity to issue the Notes as set out in the Indenture, to
execute and deliver the Documents, to undertake and perform
the obligations expressed to be assumed by it therein, to
carry on the business of issuing, selling, buying and dealing
generally in bonds, commercial paper, promissory notes,
obligations, certificates of deposit, treasury bills, trade
bills, bills of exchange, bills of lading, bank acceptances,
interests and property, monetary interest, shares, stocks,
debentures, debenture stock, letters of credit, circular
notes, financial and investment instruments and all other
instruments of whatsoever kind, carrying on any business which
may seem to Elan Finance capable of being conveniently carried
on in connection with the foregoing and lending money to such
persons or companies with or without security and upon such
terms as may seem
6
[A&L GOODBODY LOGO]
expedient to Elan Finance;
4.6. based only upon searches carried out at the Companies
Registration Office in Dublin and at the Central Office of the
High Court in Ireland in each case on the date hereof, no
order has been made or resolution passed for the winding up
of, or the appointment of an examiner to, Elan Finance and no
notice of the appointment of any receiver or liquidator to
Elan Finance has been filed;
4.7. the Documents have each been duly authorised, executed and
delivered by Elan Finance and the obligations expressed to be
accepted by Elan Finance therein are valid and legally binding
on, and are in a form capable of enforcement against Elan
Finance under the laws of Ireland in the Courts of Ireland in
accordance with their respective terms;
4.8. all actions necessary under the laws of Ireland have been duly
taken by or on behalf of Elan Finance and all authorisations
and approvals necessary under the laws of Ireland have been
duly obtained for the authorisation, execution, delivery by
Elan Finance of the Documents and the performance by Elan
Finance of its obligations thereunder and the issue of the
Notes by Elan Finance;
THE IRISH SUBSIDIARIES
----------------------
4.9. each of the Irish Subsidiaries is duly incorporated under the
laws of Ireland as a company with limited liability and has
full power and capacity to give the Guarantee as set out in
the Indenture, to execute and deliver the Indenture and, to
undertake and perform the obligations expressed to be assumed
by it therein;
4.10. based only upon searches carried out at the Companies
Registration Office in Dublin and at the Central Office of the
High Court in Ireland in each case on the date hereof, no
order has been made or resolution passed for the winding up
of, or the appointment of an examiner to, any of the Irish
Subsidiaries and no notice of the appointment of any receiver
or liquidator to any of the Irish Subsidiaries has been filed;
4.11. the Documents have each been duly authorised, executed and
delivered by each of the Irish Subsidiaries and the
obligations expressed to be accepted by each of the Irish
Subsidiaries therein are valid and legally binding on, and are
in a form capable of enforcement against each of the Irish
Subsidiaries under the laws of Ireland in the Courts of
Ireland in accordance with the terms of the Documents;
4.12. all actions necessary under the laws of Ireland have been duly
taken by or on behalf
7
[A&L GOODBODY LOGO]
of each of the Irish Subsidiaries and all authorisations and
approvals necessary under the laws of Ireland have been duly
obtained for the authorisation, execution, delivery by each of
the Irish Subsidiaries of the Documents and the performance by
each of the Irish Subsidiaries of its obligations thereunder;
CHOICE OF LAW AND JURISDICTION
------------------------------
4.13. in any proceedings taken in Ireland for the enforcement of the
Notes and or the Documents, the choice of the law of New York
as the governing law of the Notes and of the Documents would
be recognised as a valid choice of law and upheld by the Irish
Courts in any proceedings taken in Ireland for the enforcement
of the Notes or Indenture unless to do so would be contrary to
Irish public policy or illegal under the laws of Ireland.
Nothing is contained in the Notes or the Documents which would
be contrary to Irish law or public policy.
4.14. any final judgement given by a United States or State Court in
the State of New York or County of New York would be
recognised and enforced by the Courts of Ireland unless to do
so would be contrary to Irish public policy or illegal under
the laws of Ireland.
The Irish courts may by order give effect to a final judgement
of any final judgement given by a United States or State Court
in the State of New York or County of New York providing for
payment of amounts due and payable in US Dollars but execution
in Ireland of such order must be expressed in Euro by
reference to the official rate of exchange prevailing on the
date of issue of such order.
In the event of the winding up of any of the Irish Parties
amounts claimed in US Dollars would, to the extent properly
payable in the winding up, be paid, if not in US Dollars, in
the Euro equivalent of the amount due in US dollars converted
at the rate of exchange pertaining on the date of the
commencement of such winding up.
QUALIFICATIONS
- --------------
5. The Opinions expressed at 4 above are subject to the following
qualification;
5.1. the term "enforceable" as used above means that the
obligations assumed by the Guarantor are of a type which the
Courts of Ireland enforce. It does not mean or imply that
those obligations will necessarily be enforced in all
circumstances in accordance with their respective terms or
that any particular remedy will be available. In particular:-
8
[A&L GOODBODY LOGO]
5.1.1. enforcement may be limited by laws from time to
time relating to bankruptcy, insolvency,
liquidation, examinership, receivership,
preferential creditors, limitations of actions and
laws of general application relating to or
affecting the rights of creditors;
5.1.2. where obligations of the Guarantor are to be
performed in a jurisdiction outside Ireland, they
may not be enforceable in Ireland to the extent
that performance would be illegal under the laws
of that jurisdiction;
5.1.3. claims in respect of Notes or the Guarantee may be
or become the subject of set off or counterclaim;
5.1.4. enforcement may be limited by general principles
of equity - for example specific performance or
other equitable remedies are a discretion and may
not be available where damages are considered by
the courts to be an adequate remedy;
5.1.5. claims may become barred under relevant Statutes
of Limitation if not pursued within the time
limited by such statutes whether by an originating
action in Ireland or by an action to enforce a
final judgement given by a United States or State
Court in the State of New York or County of New
York;
5.1.6. enforcement may also be limited as a result of:
(1) the provision of Irish law applicable to
contracts held to have become frustrated
by events happening after their execution
or
(2) any breach of the terms of an agreement
by the parties seeking to enforce the
same;
5.1.7. a determination, description, calculation, opinion
or certificate of any party under the Documents as
to any matter provided for in the Documents might
be held by the Courts of Ireland not to be final,
conclusive or binding if it could be shown to have
been an unreasonable, incorrect or arbitrary basis
or not to have been made in good faith;
5.1.8. the Courts of Ireland may refuse to award legal
expenses or costs in respect of any action before
them where application for the same is made on the
basis of any indemnity contained in the Documents;
9
[A&L GOODBODY LOGO]
5.1.9. pursuant to Section 131 of the Stamp Duties
Consolidation Act, 1999 any indemnity given by the
Guarantor in respect of payment of Irish Stamp
Duties may not be enforceable; and
5.1.10. any currency indemnity contained in the Documents
may not be enforceable.
5.2. We express no opinion on the terms of the Documents other than
by reference to the legal character thereof.
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the use of our name under the heading
"Legal Matters" in the prospectus contained therein. In giving such
consent, we do not hereby concede that we are within the category of
person whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission thereunder.
Yours faithfully,
/s/ A&L Goodbody
[A&L GOODBODY LOGO]
SCHEDULE
--------
ELAN PHARMA INTERNATIONAL LIMITED
ELAN PHARMA LIMITED
ELAN HOLDINGS LIMITED
DRUG RESEARCH CORPORATION PUBLINC LIMITED COMPANY
ELAN INNOVATIONS LIMITED
ELAN MANAGEMENT LIMITED
ELAN MEDICAL TECHNOLOGIES LIMITED
ELAN MEDICAL TECHNOLOGIES (IRELAND) LIMITED
ELAN TRANSDERMAL LIMITED
ELAN ONE LIMITED
ELAN FOUR LIMITED
THE INSTITUTE OF BIOPHARMACEUTICS LIMITED
MONKSLAND HOLDINGS COMPANY
TACKSON LIMITED
11
