EXHIBIT 5.3
[LETTERHEAD OF NAUTADUTILH N.V.]
Postbus 1110
3000 BC Rotterdam Rotterdam, September 9, 2005
Weena 750
3014 DA Rotterdam
T +31 10 224 00 00
F +31 10 414 84 44
To: Elan Finance public limited company
Elan Finance Corp.
Elan Corporation, plc
c/o Elan Corporation, plc
Treasury Building
Lower Grand Canal Street
Dublin 2, Ireland
Ladies and Gentlemen,
Re: 7 3/4% Senior Fixed Rate Notes due 2011 and Senior Floating Rate Notes
- --------------------------------------------------------------------------
due 2011
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This opinion is rendered to you at your request in connection with an offer by
Elan Finance Corp., a Delaware corporation, and Elan Finance public limited
company, an Irish public limited company (together the "CO-ISSUERS"), to
exchange up to $850,000,000 of the Co-Issuers' 7 3/4% Senior Fixed Rate Notes
due 2011 and up to $300,000,000 of the Co-Issuers' Senior Floating Rate Notes
due 2011 (together, the "OUTSTANDING NOTES") for an identical principal amount
at maturity of the Co-Issuers' 7 3/4% Senior Fixed Rate Notes due 2011 and the
Co-Issuers' Senior Floating Rate Notes due 2011 (together the "EXCHANGE NOTES")
registered under the Securities Act. We understand that the Exchange Notes will
be issued pursuant to the Indenture (the "INDENTURE") dated as of November 16,
2004 between the Co-Issuers, Elan Corporation, plc, an Irish public limited
company ("ELAN CORPORATION"), and Elan Pharma B.V. and Monksland Holdings B.V.
(together the "COMPANIES") (and certain other guarantors party thereto) and the
Bank of New York, as Trustee (the "TRUSTEE") and, when issued, will be
guaranteed by the Companies pursuant to the
NautaDutilh N.V. has its seat at Rotterdam, The Netherlands and is registered in
the Commercial Register in Rotterdam under number 24338323. All services and
other work are carried out under a contract for professional services
("overeenkomst van opdracht") with NautaDutilh N.V., subject to the general
conditions of NautaDutilh N.V. These general conditions include, among other
provisions, a limitation of liability clause and have been filed with the
Rotterdam Court of First Instance. They can be consulted at www.nautadutilh.com
and will be provided free of charge upon request.
ABN AMRO Bank 42.61.85.323; Fortis Bank 64.02.57.747; ING Bank 69.33.63.282;
Postbank 9047; Account Name: Stichting Beheer Derdengelden Advocatuur
NautaDutilh.
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Rotterdam, September 9, 2005
guarantees (the "GUARANTEES") pursuant to the Indenture.
Capitalized terms used in this opinion letter shall have the meanings set forth
in Exhibit A hereto. Capitalized terms used but not defined herein, shall have
the meanings assigned thereto in the Indenture. The section headings used in
this opinion letter are for convenience of reference only and are not to affect
its construction or to be taken into consideration in its interpretation.
This opinion letter is addressed solely to you. It may only be relied upon by
you and may be used only in connection with the Documents. This opinion letter
is strictly limited to matters stated in it and may not be read as extending by
implication to any matters not specifically referred to in it. Nothing in this
opinion letter should be taken as expressing an opinion in respect of any
representations and warranties, or other information contained in the Documents,
except as expressly confirmed in this opinion letter. Its contents may not be
quoted, otherwise included, summarised or referred to in any publication or
document or disclosed to any other party, in whole or in part, for any purpose,
without our prior written consent, except to your professional advisers in this
transaction. We do, however, 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 (the "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.
In rendering the opinions expressed herein, we have exclusively reviewed and
relied upon signed execution copies of the Documents and the Corporate
Documents, and we have assumed that the Documents have been entered into for
bona fide commercial reasons. We have with your permission not investigated or
verified any factual matter disclosed to us in the course of our review.
This opinion letter sets out our opinion on certain matters of - and the
opinions and statements expressed in this opinion letter are limited in all
respects to and are to be construed and interpreted in accordance with -
Netherlands Law as they stand at the date hereof. Unless otherwise specifically
stated herein, we do not express any opinion on public international law or on
the rules promulgated under or by any treaty or treaty organisation, except
insofar as such rules are directly applicable in the Netherlands, nor do we
express any opinion on Netherlands or European competition law or tax law. No
undertaking or obligation is assumed on our part to revise, update or amend this
opinion letter in connection with or to notify or inform you of any developments
and/or changes under Netherlands Law subsequent to today's date.
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Rotterdam, September 9, 2005
This opinion letter may only be relied upon on the condition that you accept
that the legal relationship between yourselves and NautaDutilh N.V. is to be
governed by Netherlands Law and that any issues of interpretation or liability
arising out of or in connection with this opinion letter shall be submitted to
the exclusive jurisdiction of the competent courts at Rotterdam, the
Netherlands.
In this opinion letter Netherlands legal concepts are expressed in English terms
and not in their original Netherlands terms. The concepts concerned may not be
identical to the concepts described by the same English terms as they exist
under the laws of other jurisdictions. In the event of a conflict or
inconsistency the relevant expressions shall be deemed to refer only to the
Netherlands legal concepts described thereby.
For the purposes of this opinion letter, we have assumed that:
(a) all documents reviewed by us as originals are complete and authentic
and the signatures thereon are the genuine signatures of the persons
purporting to have signed the same, all documents reviewed by us as
drafts of documents or as fax, photo or electronic copies of originals
are in conformity with the executed originals thereof and such
originals are complete and authentic and the signatures thereon are the
genuine signatures of the persons purporting to have signed the same;
(b) no defects attach to the incorporation of the Companies (aan hun
totstandkoming geen gebreken kleven) and the Articles of Association
have been executed on the basis of a valid declaration of no objection
(verklaring van geen bezwaar) by a civil law notary (notaris), who had
the power and authority to execute such deeds and such deeds comply
with Netherlands Law (voldoen aan de eisen der wet);
(c) none of the parties to the Documents has (i) been dissolved
(ontbonden), (ii) ceased to exist pursuant to a merger (fusie) or a
division (splitsing), (iii) had its assets placed under administration
(onder bewind gesteld), (iv) been declared bankrupt (failliet
verklaard), (v) been granted a suspension of payments (surseance van
betaling verleend), (vi) subjected to emergency regulations
(noodregeling) on the basis of Article 71 CSSA, or (vii) been made
subject to similar proceedings in other jurisdictions. The Extracts and
our inquiries of today over the telephone with the Bankruptcy Clerk's
Office support the assumptions (i) up to and including (v) in respect
of the Companies. However, this information does not constitute
conclusive evidence that the events set out in items (i) through (v)
have not occurred;
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Rotterdam, September 9, 2005
(d) the Resolutions are in full force and effect, correctly reflect the
resolutions stated in the Resolutions and the factual statements made
in the Resolutions and the Certificates are complete and correct;
(e) the contents of the Extracts are true and accurate and complete;
(f) each of the powers of attorney, authorisations and appointments
contained in the Resolutions, under any applicable law other than
Netherlands Law, validly authorises the person or persons purported to
be granted power of attorney or authorisation, to represent and bind
the relevant Company vis-a-vis the other parties to the Documents with
regard to the transactions contemplated thereby;
(g) none of the opinions stated in this opinion letter will be affected by
any foreign law;
(h) the assumptions under (a) up to and including (g) are, were relevant,
true and correct as from (and including) the date of signing of the
Resolutions up to and including the date hereof.
Based upon and subject to the foregoing and subject to the qualifications set
forth herein and to any matters, documents or events not disclosed to us, we
express the following opinions:
CORPORATE STATUS
1. The Companies have been duly incorporated and are validly existing as
private companies with limited liability (besloten vennootschappen met
beperkte aansprakelijkheid).
CORPORATE POWER
2. The Companies have the corporate power and authority to enter into and
perform their obligations under the Documents.
CORPORATE ACTION
3. The Companies have taken all corporate action required by the Articles
of Association and by Netherlands Law to authorise the signing,
execution or delivery of the Documents and the performance by them of
their obligations thereunder.
DUE EXECUTION
4. The Documents have been duly signed, executed and delivered on behalf
of the Companies.
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Rotterdam, September 9, 2005
The opinions expressed above are subject to the following qualifications:
(A) As Netherlands lawyers we are not qualified or able to assess the true
meaning and purport of the terms of the Documents under the laws of the
State of New York and the obligations of the parties to the Documents
and we have made no investigation of such meaning and purport. Our
review of the Documents and of any other documents subject or expressed
to be subject to any law other than Netherlands Law has therefore been
limited to the terms of such documents as they appear to us on their
face.
(B) The information contained in the Extracts does not constitute
conclusive evidence of the facts reflected in it.
(C) Pursuant to Article 2:7 NCC, any transaction entered into by a legal
entity may be nullified by the legal entity itself or its receiver in
bankruptcy (curator) if the objects of such entity were transgressed by
the transaction and the other party to the transaction knew or should
have known this without independent investigation (wist of zonder eigen
onderzoek moest weten). The Netherlands Supreme Court (Hoge Raad der
Nederlanden) has ruled that in determining whether the objects of a
legal entity are transgressed, not only the description of such objects
in the articles of association (statuten) is decisive, but all
(relevant) circumstances must be taken into account, in particular
whether the interests of the legal entity were served by the
transaction.
(D) Pursuant to Article 2:207c NCC, a private company with limited
liability may not grant loans (leningen verstrekken), provide security
(zekerheid stellen), give a price guarantee (koersgarantie geven) or
otherwise bind itself, whether jointly and severally or otherwise with
or for third parties (zich op andere wijze sterk maken of zich
hoofdelijk of anderszins naast of voor anderen verbinden) with a view
to (met het oog op) the subscription or acquisition by third parties of
shares in its share capital or depository receipts. This prohibition
also applies to its subsidiaries (dochtervennootschappen). Any
transaction in violation of the prohibition is void or voidable.
(E) The opinions expressed in this opinion letter may be limited or
affected by:
a. any applicable bankruptcy, insolvency, reorganisation,
moratorium or other similar laws or procedures now or
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Rotterdam, September 9, 2005
hereinafter in effect, relating to or affecting the
enforcement or protection of creditor's rights generally;
b. the provisions of fraudulent preference and fraudulent
conveyance (Actio Pauliana) and similar rights available to
receivers in bankruptcy or creditors in other jurisdictions;
c. rules of "force majeure", reasonableness and fairness and
rules of "imprevision", set-off, prescription and other
defences afforded by Netherlands Law to obligors generally;
and
d. sanctions implemented or effective in the Netherlands under
the Sanctions Act 1977 (Sanctiewet 1977), the Economic
Offences Act (Wet Economische Delicten) or European Community
Regulations.
Yours faithfully,
On behalf of NautaDutilh N.V.
/s/ W.A.M. Schellekens
W.A.M. Schellekens
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Rotterdam, September 9, 2005
EXHIBIT A
LIST OF DEFINITIONS
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"ARTICLES OF ASSOCIATION" the deed of incorporation of Elan Pharma B.V.
dated December 3, 2002, stating that the
statement of no-objection from the Minister
of Justice in the Netherlands was obtained on
December 3, 2002, with number B.V. 1223202
and which, according to the Elan Extract,
contains the articles of association of Elan
Pharma B.V. in force on the date hereof, and
the deed of incorporation of Monksland
Holdings B.V. dated 3 December 2002, stating
that the statement of no-objection from the
Minister of Justice in the Netherlands was
obtained on 3 December 2002 with number B.V.
1223202 and which, according to the Monksland
Extract, contains the articles of association
of Monksland Holdings B.V. in force on the
date hereof
"BANKRUPTCY CLERK'S OFFICE" the Amsterdam and/or the Rotterdam Court
Bankruptcy Clerk's Office
(faillissementsgriffie van de Rechtbank te
Amsterdam and Rotterdam)
"BOARD RESOLUTIONS" the document containing the resolution of the
management board of Elan Pharma B.V. dated
November 15, 2004, in which it is, among
other things, resolved to enter into and
execute the Documents and all documents to be
executed and delivered in connection
therewith, and the document containing the
resolution of the management board of
Monksland Holdings B.V. dated November 15,
2004, in which it is, among other things,
resolved to enter into and execute the
Documents and all documents to be executed
and delivered in connection therewith
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Rotterdam, September 9, 2005
"CERTIFICATES" the certificate dated November 15, 2004,
signed by Mr. P.H. Bosse on behalf of Elan
Pharma B.V., in which it is, inter alia,
certified that the copies of the deed of
incorporation, the excerpt from the Chamber
of Commerce and the copies of the resolutions
in respect of Elan Pharma B.V. attached to
the certificate are correct and complete, and
in full force and effect, and the certificate
dated November 15, 2004, signed by Mr. P.H.
Bosse on behalf of Monksland Holdings B.V.,
in which it is, inter alia, certified that
the copies of the deed of incorporation, the
excerpt from the Chamber of Commerce and the
copies of the resolutions in respect of
Monksland Holdings B.V. attached to the
certificate are correct and complete, and in
full force and effect
"CORPORATE DOCUMENTS" the documents listed in Exhibit B
"DOCUMENTS" the Indenture and the Deposit and Custody
Agreement dated November 16, 2004, between
the Co-Issuers, Elan Corporation, the
Companies and certain other parties as
Guarantors and The Bank of New York as Global
Note Depositary and Custodian, received by us
via e-mail on 1 September 2005
"ELAN EXTRACT" the extract dated September 9, 2005 from the
Commercial Register of the Chamber of
Commerce and Industry for Rotterdam, relating
to Elan Pharma B.V. with registration number
24340246 together with an online historical
survey in respect of Elan Pharma B.V.
"EXHIBIT" an exhibit to the opinion letter
"EXTRACTS" the Elan Extract and the Monksland Extract
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Rotterdam, September 9, 2005
"MONKSLAND EXTRACT" the extract dated September 9, 2005 from the
Commercial Register of the Chamber of
Commerce and Industry for Amsterdam, relating
to Monksland Holdings B.V. with registration
number 33265127 together with an online
historical survey in respect of Monksland
Holdings B.V.
"NCC" the Netherlands Civil Code
"NETHERLANDS LAW" the laws with general applicability of the
Netherlands, and, in so far as they are
directly applicable in the Netherlands, of
the European Community
"THE NETHERLANDS" the Kingdom of the Netherlands excluding
Aruba and the Netherlands Antilles
"RESOLUTIONS" the Board Resolutions and the Shareholders
Resolutions
"SHAREHOLDERS RESOLUTIONS" the document containing the resolution in
writing of Monksland Holdings B.V. in its
capacity as sole shareholder of Elan Pharma
B.V. dated on or about November 15, 2004, in
which it is, among other things, approved
that Elan Pharma B.V. enters into and
executes the Documents and all documents to
be executed or delivered in connection
therewith, and the document containing the
resolution in writing of Elan Holdings
Limited, in its capacity as sole shareholder
of Monksland Holdings B.V. dated on or about
November 15, 2004, in which it is, among
other things, approved that Monksland
Holdings B.V. enters into and executes the
Documents and all documents to be executed or
delivered in connection therewith
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Rotterdam, September 9, 2005
EXHIBIT B
LIST OF
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CORPORATE
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DOCUMENTS
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1. a copy of the Articles of Association;
2. a copy of the Board Resolutions;
3. a copy of the Shareholders Resolutions;
4. copy of the Certificates;
5. a copy of the Elan Extract; and
6. a copy of the Monksland Extract.
