Exhibit 99(a)(1)(B)
PURCHASE NOTICE
TO SURRENDER
ELAN FINANCE CORPORATION LTD.
LIQUID YIELD OPTION(TM) NOTES DUE 2018
(ZERO COUPON-SUBORDINATED)
CUSIP Nos.: 284129 AA 1, 284129 AB 9 and 284129 AC 7
Pursuant to the Company Notice
dated November 14, 2003
This Purchase Notice relates to the purchase of Liquid Yield Option(TM)
Notes due 2018 (Zero Coupon-Subordinated) (the "Securities") of Elan Finance
Corporation Ltd., a company organized under the laws of Bermuda (the "Company"),
at the option of the holder thereof, pursuant to the terms and conditions
specified in the Indenture, dated as of December 14, 1998 (the "Indenture"),
among the Company, as issuer, Elan Corporation, plc, as guarantor and The Bank
of New York, a New York banking corporation, as trustee (the "Paying Agent"),
and paragraph 6 of the Securities and as set forth in the Company Notice, dated
November 14, 2003.
Your right to surrender your Securities to the Company for purchase will
expire at 5:00 p.m., New York City time, on Monday, December 15, 2003 (the
"Purchase Date"). Holders of Securities (the "Holders") must validly deliver
this Purchase Notice on or before the Purchase Date (and not have withdrawn such
Purchase Notice) prior to 5:00 p.m., New York City time, on the Purchase Date,
in order to receive $616.57 per $1,000 principal amount at maturity of
Securities (the "$1,000 principal amount"). Securities surrendered for purchase
may be withdrawn at any time prior to 5:00 p.m., New York City time, on the
Purchase Date. You may also withdraw surrendered Securities if the Company has
not yet accepted them for payment after the expiration of 40 business days from
the date of the Company Notice. HOLDERS THAT SURRENDER THROUGH THE DEPOSITORY
TRUST COMPANY ("DTC") NEED NOT SUBMIT A PHYSICAL COPY OF THIS PURCHASE NOTICE TO
THE PAYING AGENT IF SUCH HOLDERS COMPLY WITH THE TRANSMITTAL PROCEDURES OF DTC.
The addresses of the Paying Agent are as follows:
By Registered or Certified Mail or by Hand: By Regular Mail or Overni-13-Courier:
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The Bank of New York The Bank of New York
Corporate Trust Operations Corporate Trust Window
Reorganization Unit 101 Barclay Street
101 Barclay Street New York, NY 10286
Floor 7E Attention: Kin Lau
New York, NY 10286
Attention: Kin Lau
The instructions accompanying this Purchase Notice should be read carefully
before this Purchase Notice is completed.
This Purchase Notice can be used only if:
o certificate(s) representing Securities are to be physically delivered
to the Paying Agent; or
o a surrender of Securities will be made by book-entry transfer to the
Paying Agent's account at DTC through the DTC's Automatic Tenders over
the Participant Terminal System ("PTS"), subject to the terms and
procedures of that system. Holders that surrender through DTC need not
submit a physical Purchase Notice to the Paying Agent if such Holders
comply with the transmittal procedures of DTC.
Any beneficial owner whose Securities are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to surrender such Securities should contact such registered holder of the
Securities promptly and instruct such registered holder to surrender on behalf
of the beneficial owner.
Delivery of this Purchase Notice and all other required documents to an
address other than as set forth above does not constitute valid delivery to the
Paying Agent. Delivery of documents to DTC or the Company does not constitute
delivery to the Paying Agent. The method of delivery of all documents, including
certificates representing Securities, is at the risk of the Holder. If delivery
is by mail, registered mail with return receipt requested, properly insured, is
recommended. You must sign this Purchase Notice in the appropriate space
provided for your signature, with signature guarantee if required, and complete
the Form W-9 set forth below. See instructions 1, 2 and 12.
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Ladies and Gentlemen:
By execution of this Purchase Notice, each signatory hereof (the
"undersigned") represents that the undersigned has received the Company Notice,
dated November 14, 2003 (the "Company Notice"), of Elan Finance Corporation
Ltd., a company organized under the laws of Bermuda (the "Company"), which
provides the notice to the holders (the "Holders") required pursuant to the
Securities (as defined below) and Indenture, dated as of December 14, 1998 (the
"Indenture"), between the Company, as issuer, Elan Corporation, plc, as
guarantor, and The Bank of New York, a New York banking corporation, as trustee
(the "Paying Agent"). This Purchase Notice relates to the Company's Liquid Yield
Option(TM) Notes due 2018 (Zero Coupon-Subordinated) (the "Securities"), and the
Holder's right to surrender the Securities for purchase by the Company for
$616.57 per $1,000 principal amount at maturity of the Securities (the "Purchase
Price"), subject to the terms and conditions of the Indenture, and the Company
Notice. Upon the terms and subject to the conditions set forth herein and in the
Indenture, and effective upon the acceptance for payment thereof, the
undersigned hereby irrevocably sells, assigns and transfers all right and title
to the Company in and to the Securities surrendered hereby.
The undersigned hereby irrevocably constitutes and appoints the Paying
Agent the true and lawful agent and attorney-in-fact of the undersigned (with
full knowledge that the Paying Agent also acts as the agent of the Company) with
respect to such Securities, with full power of substitution (such
power-of-attorney being deemed to be an irrevocable power coupled with an
interest) to (1) present such Securities and all evidences of transfer and
authenticity to, or transfer ownership of, such Securities on the account books
maintained by The Depository Trust Company ("DTC") to, or upon the order of, the
Company, (2) present such Securities for transfer and cancellation on the books
of the relevant security registrar, and (3) receive all benefits and otherwise
exercise all rights of beneficial ownership of such Securities, all in
accordance with the terms of and conditions to the Company Notice and the
Indenture.
The undersigned hereby represents and warrants that:
(a) the undersigned owns the Securities surrendered hereby as
contemplated by Rule 14e-4 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and has full power and authority to
validly surrender the Securities surrendered hereby;
(b) when and to the extent the Company accepts such Securities for
payment, the Company will acquire good, marketable and unencumbered title
to them, free and clear of all security interests, liens, charges,
encumbrances, conditional sales agreements or other obligations relating to
their surrender or transfer, and not subject to any adverse claim;
(c) on request, the undersigned will execute and deliver any
additional documents that the Paying Agent or the Company deems necessary
or desirable to complete the surrender of the Securities surrendered for
purchase hereby and accepted for payment; and
(d) the undersigned has read and agrees to all of the terms of the
Company Notice and this Purchase Notice.
The undersigned understands that surrender of the Securities is not made in
acceptable form until receipt by the Paying Agent of this Purchase Notice, duly
completed and signed, together with all accompanying evidence of authority in
form satisfactory to the Company in its sole discretion (which may delegate
power in whole or in part to the Paying Agent). All questions as to form of
documents, eligibility, validity (including time of receipt) and acceptance for
payment of any surrender of Securities for purchase hereunder will be determined
by the Company in its sole discretion (which may delegate power in whole or in
part to the Paying Agent) and such determination shall be final and binding on
all parties.
The undersigned understands that all Securities properly surrendered for
purchase on or before 5:00 p.m., New York City time, on December 15, 2003 (the
"Purchase Date"), and not withdrawn prior to 5:00 p.m., New York City time, on
the Purchase Date, will be purchased at the Purchase Price, in cash, upon the
terms and conditions specified in the Indenture and as set forth in the Company
Notice. The undersigned understands that acceptance of
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the Securities by the Company for payment will constitute a binding agreement
between the undersigned and the Company upon the terms and subject to the
conditions of the Indenture, the Company Notice and this Purchase Notice.
It is understood and hereby acknowledged by the undersigned that the
certificate(s) evidencing the Securities need not be delivered concurrently
herewith in order to surrender such Securities evidenced thereby. However, the
Company shall not be obligated to deliver the Purchase Price for such Securities
until such time that the certificate(s) evidencing such Securities are received
by the Paying Agent.
Unless otherwise indicated under "Special Issuance Instructions" or
"Special Delivery Instructions" below, the check for the Purchase Price for any
Securities tendered hereby that are purchased will be issued to the order of the
undersigned and mailed to the address indicated in the box entitled "Description
of Securities Being Surrendered for Purchase." In the event that the boxes
entitled "Special Issuance Instructions" and/or "Special Delivery Instructions"
are completed, the check will be issued in the name of, and the payment of the
aggregate Purchase Price will be mailed to, the address so indicated.
All authority conferred or agreed to be conferred in this Purchase Notice
shall not be affected by and shall survive the death or incapacity of the
undersigned, and any obligations of the undersigned under this Purchase Notice
shall be binding upon the heirs, personal representatives, successors and
assigns of the undersigned.
NOTE: SIGNATURES MUST BE PROVIDED.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
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DESCRIPTION OF SECURITIES BEING SURRENDERED FOR PURCHASE
Name(s) and Address(es) of Registered Holder(s)
(Please fill in exactly as name(s) appear(s) on Securities Being Surrendered for Purchase
Securities)(1) (Attach additional signed list, if necessary)
Principal Principal
Amount at Amount at
Security Maturity Maturity
Certificate Represented Being
Number(s)(2) Securities Surrendered(2)(3)
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________________________________________________________
________________________________________________________
________________________________________________________
________________________________________________________
Total Amount
Surrendered for
Purchase
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(1) Must correspond exactly to the name(s) that appear(s) on the certificate(s)
for the Securities and the Paying Agent's record of registered holders or,
if surrendered by a DTC participant, exactly as such participant's name(s)
and address(es) appear(s) on the security position listing of DTC.
(2) Need not be completed if Securities are being surrendered by book-entry
transfer.
(3) Unless otherwise specified, the entire aggregate principal amount at
maturity evidenced by such Securities will be deemed to have been
surrendered for purchase.
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METHOD OF DELIVERY
|_| CHECK HERE IF SECURITIES ARE BEING OR WILL BE PHYSICALLY DELIVERED
HEREWITH.
|_| CHECK HERE IF SECURITIES ARE BEING OR WILL BE DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE PAYING AGENT WITH DTC, AND
COMPLETE THE FOLLOWING:
Name of Surrendering Institution: ______________________________________________
DTC Account Number:_____________________________________________________________
Contact Person:_________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
Telephone (with international dialing code):____________________________________
Facsimile (with international dialing code):____________________________________
Date Surrendered:_______________________________________________________________
Transaction Code Number:________________________________________________________
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SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 2, 4, 5 and 6)
To be completed ONLY if Securities not surrendered or not purchased and/or any
check for the aggregate Purchase Price of Securities purchased are to be issued
in the name of and sent to someone other than the undersigned, or if Securities
surrendered by book-entry transfer that are not accepted for purchase are to be
credited to an account maintained at DTC other than the one designated above.
Issue Check and/or Securities to:
Name:___________________________________________________________________________
(Please Print)
Address:________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Taxpayer Identification Number or Social Security Number)
Credit unpurchased Securities by book-entry to DTC account number:
________________________________________________________________________________
(DTC Account Number)
________________________________________________________________________________
(Account Party)
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SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 2, 4, 5 and 6)
To be completed ONLY if Securities not surrendered or not purchased and/or any
check for the aggregate Purchase Price of Securities purchased, issued in the
name of the undersigned, are to be sent to someone other than the undersigned,
or to the undersigned at an address other than that indicated above.
Mail Check and/or Securities to:
Name:___________________________________________________________________________
(Please Print)
Address:________________________________________________________________________
________________________________________________________________________________
(Including Zip Code)
NOTE: SIGNATURES MUST BE PROVIDED ON THE FOLLOWING PAGE.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
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SIGNATURE
(See Instructions 1 and 5)
(Please Complete Substitute Form W-9)
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Must be signed by registered Holder(s) exactly as name(s) appear(s) on the
Securities or on a security position listing or by person(s) authorized to
become registered Holder(s) of the Securities by documents transmitted with this
Purchase Notice. If the signature is by an attorney-in-fact, executor,
administrator, trustee, guardian, partner, officer of a corporation or another
party acting in a fiduciary or representative capacity, please set forth the
signer's full title.
________________________________________________________________________________
(Signature(s) of Registered Holder(s) or Authorized Signatory)
Dated: ________________________________, 2003
Name(s):________________________________________________________________________
(Please Print)
Capacity (full title):__________________________________________________________
Area Code(s) and Telephone Number(s):___________________________________________
Tax ID/SS Number(s):____________________________________________________________
(Taxpayer Identification Number(s) or Social Security Number(s))
Address(es):____________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
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The Guarantee Below Must Be Completed in Accordance with the Instructions
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GUARANTEE OF SIGNATURE(S)
(See Instructions 2 and 5)
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Authorized Signature:___________________________________________________________
Name:___________________________________________________________________________
Title:__________________________________________________________________________
Name of Eligible Institution:___________________________________________________
Address:________________________________________________________________________
Area Code and Telephone Number:_________________________________________________
Dated: ______________________________, 2003
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INSTRUCTIONS
Forming Part of the Terms and Conditions of this Purchase Notice
1. Delivery of Purchase Notice and Securities. This Purchase Notice can be
used only if Securities are to be delivered to the Paying Agent or a surrender
of Securities will be made by book-entry transfer to the Paying Agent's account
at DTC. Holders that surrender through DTC need not submit a physical Purchase
Notice to the Paying Agent if such Holders comply with the transmittal
procedures of DTC. A properly completed and duly executed Purchase Notice or
agent's message and any other required documents must be delivered to the Paying
Agent at the appropriate address set forth on the first page of this Purchase
Notice and must be received by the Paying Agent prior to 5:00 p.m., New York
City time, on December 15, 2003. The term "agent's message" means a message,
transmitted to DTC and received by the Paying Agent and forming a part of a
book-entry transfer, that states that DTC has received an express
acknowledgement that the undersigned agrees to be bound by this Purchase Notice
and that the Company may enforce this Purchase Notice against the undersigned.
Delivery of documents to DTC or the Company does not constitute delivery to the
Paying Agent.
The method of delivery of all documents, including Securities, this
Purchase Notice and any other required documents, is at the election and risk of
the surrendering Holder(s). If delivery is by mail, registered mail with return
receipt requested, properly insured, is recommended.
Each surrendering Holder, by execution of this Purchase Notice, waives any
right to receive any notice of the acceptance of his or her surrender.
2. Guarantee of Signatures. No signature guarantee is required if either:
(a) this Purchase Notice is signed by the registered Holder(s) of the
Securities (which term, for purposes of this Purchase Notice, includes any
participant in DTC whose name appears on a security position listing as the
Holder of such Securities) surrendered by the Purchase Notice, unless such
Holder has completed the box entitled "Special Issuance Instructions"
and/or "Special Delivery Instructions" above; or
(b) the Securities surrendered by this Purchase Notice are surrendered
for the account of an eligible guarantor institution, as defined in Rule
17Ad-15 under the Exchange Act (each, an "Eligible Institution").
In all other cases an Eligible Institution must guarantee the signatures on
this Purchase Notice. See Instruction 5.
3. Inadequate Space. If the space provided in the box captioned
"Description of Securities Being Surrendered for Purchase" is inadequate, the
Security certificate numbers, the principal amount at maturity represented by
the Securities and the principal amount at maturity surrendered should be listed
on a separate signed schedule and attached to this Purchase Notice.
4. Partial Surrenders and Unpurchased Securities. (Not applicable to
Holders who surrender by book-entry transfer.) If less than all of the principal
amount evidenced by the Securities is to be surrendered for purchase, fill in
the portion of the principal amount of such Securities which is to be
surrendered for purchase in the column entitled "Principal Amount Surrendered
for Purchase" in the box captioned "Description of Securities Being Surrendered
for Purchase." In such case, a new certificate for the remainder of the
Securities evidenced by the old certificate will be issued and sent to the
registered Holder(s), unless otherwise specified in the box entitled "Special
Issuance Instructions" and/or "Special Delivery Instructions" in this Purchase
Notice, as promptly as practicable following the later of the Purchase Date or
the date the Paying Agent receives the certificate(s) evidencing the surrendered
Securities; provided, however, that each Security purchased and each new
Security issued shall be in a principal amount at maturity of $1,000 or integral
multiples thereof. The full principal amount of Securities listed is deemed to
have been surrendered unless otherwise indicated.
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5. Signatures on Purchase Notice and Endorsements.
(a) If this Purchase Notice is signed by the registered Holder(s) of the
Securities surrendered for purchase hereby, the signature(s) must
correspond exactly with the name(s) as written on the face of the
Securities without any change whatsoever.
(b) If the Securities are registered in the names of two or more joint
Holders, each such Holder must sign this Purchase Notice.
(c) If any surrendered Securities are registered in different names on
several certificates, it will be necessary to complete, sign and
submit as many separate Purchase Notices as there are different
registrations of Securities.
(d) (Not applicable to Holders who surrender by book-entry transfer.) When
this Purchase Notice is signed by the registered Holder(s) of the
Securities and transmitted hereby, no endorsement of Securities is
required unless payment is to be made, or the Securities not
surrendered or not purchased are to be issued, to a person other than
the registered Holder(s). See Instruction 2. In such an event,
signature(s) on such Securities must be guaranteed by an Eligible
Institution. If this Purchase Notice is signed by a person other than
the registered Holder(s) of the Securities listed, the assignment form
on the Securities must be completed and signed exactly as the name(s)
of the registered Holder(s) appear on the Securities and signature(s)
on such Securities must be guaranteed by an Eligible Institution. See
Instruction 2.
(e) If this Purchase Notice is signed by attorneys-in-fact, executors,
administrators, trustees, guardians, partners, officers of
corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and must submit
proper evidence satisfactory to the Company of their authority so to
act.
6. Special Payment and Special Delivery Instructions. The surrendering
Holder(s) signing this Purchase Notice should indicate in the applicable box or
boxes the name and address to which Securities for principal amounts not
surrendered or checks for payment of the aggregate Purchase Price are to be
issued or sent, if different from the name(s) and address(es) of such Holder(s).
In the case of issuance in a different name, the taxpayer identification number
or social security number of the person named must also be indicated. If no
instructions are given, Securities not surrendered will be returned to the
Holder(s). Any Holder(s) surrendering by book-entry transfer may request that
Securities not surrendered be credited to such account at DTC as such Holder(s)
may designate under the caption "Special Issuance Instructions." If no such
instructions are given, any such Securities not surrendered will be returned by
crediting the account at DTC designated above.
7. Irregularities. The Company will determine, in its sole discretion, all
questions as to the form of documents, eligibility, validity (including time of
receipt) and acceptance for payment of any surrender of Securities and its
determinations shall be final and binding on all parties. The Company reserves
the absolute right to reject any or all surrenders it determines not to be in
proper form or the acceptance for payment of or payment for which may, in the
opinion of the Company's counsel, be unlawful. The Company also reserves the
absolute right to waive any defect or irregularity in the surrender of any
particular Security. No surrender of Securities will be deemed to have been
properly made until all defects and irregularities have been cured or waived.
Unless waived, any defects or irregularities in connection with surrenders must
be cured within such time as the Company shall determine. The Company's
interpretation of the terms of the Purchase Notice (including these
instructions) will be final and binding on all parties. None of the Company, the
Paying Agent or any other person is or will be obligated to give notice of any
defects or irregularities in surrenders of Securities and none of them will
incur any liability for failure to give such notice.
8. Mutilated, Lost, Stolen or Destroyed Certificates for Securities. Any
Holder(s) whose certificates for Securities have been mutilated, lost, stolen or
destroyed should write to or telephone the Paying Agent at the address or
telephone number set forth on the front cover page of this Purchase Notice.
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The Holder will then be instructed by the Paying Agent as to the steps that
must be taken in order to replace the certificates. The payment of the Purchase
Price cannot be made until the procedures for replacing mutilated, lost, stolen
or destroyed certificates have been followed.
9. Questions and Requests for Assistance and Additional Copies. Questions
and requests for assistance may be directed to the Paying Agent and additional
copies of the Company Notice and this Purchase Notice may also be obtained from
the Paying Agent.
10. Withdrawal Right. You may withdraw previously surrendered Securities at
any time until 5:00 p.m., New York City time, on December 15, 2003. See Section
4 of the Company Notice for a more detailed description of withdrawal rights.
You may also withdraw surrendered Securities if the Company has not yet accepted
them for payment after the expiration of 40 business days from the date of the
Company Notice.
11. Transfer Taxes. If payment of the Purchase Price is to be made to, or
if Securities not surrendered or purchased are to be registered in the name of,
any persons other than the registered Holder(s), or if surrendered Securities
are registered in the name of any person other than the person(s) signing this
Purchase Notice, the amount of any transfer taxes (whether imposed on the
registered Holder(s) or such other person) payable on account of the transfer to
such other person will be deducted from the Purchase Price unless satisfactory
evidence of the payment of such taxes or an exemption therefrom is submitted.
12. Important Tax Information. Under U.S. federal income tax law, a Holder
that surrenders Securities is required to provide the Paying Agent with such
Holder's current taxpayer identification number ("TIN") on a properly completed
Internal Revenue Service Form W-9 (a "Form W-9") or substitute Form W-9, or,
alternatively, to establish another basis for an exemption from backup
withholding. If such Holder is an individual, the TIN is his or her Social
Security number. If the Paying Agent is not provided with the correct TIN, any
payment made to such Holder with respect to Securities purchased pursuant to the
Company Notice may be subject to 28% backup withholding. In addition, the Holder
may be subject to a $50 penalty imposed by the Internal Revenue Service.
Certain Holders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that Holder must submit to the Paying Agent a properly completed
Internal Revenue Service Form W-8 BEN (a "Form W-8 BEN") or other appropriate
form, signed under penalties of perjury, attesting to that individual's exempt
status. A Form W-8 BEN can be obtained from the Paying Agent. See the enclosed
Form W-9 for additional instructions.
If backup withholding applies, the Paying Agent is required to withhold 28%
of any payment made to the Holder or other payee. Backup withholding is not an
additional tax. Rather, the federal income tax liability of persons subject to
backup withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund generally may be obtained from the
Internal Revenue Service. The Paying Agent cannot refund amounts withheld by
reason of backup withholding.
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