As filed with the Securities and Exchange Commission on December 6 , 2004
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ELAN CORPORATION, plc
(Exact name of registrant as specified in its charter)
Ireland Not Applicable
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Lincoln House
Lincoln Place
Dublin 2, Ireland
(Address of principal executive offices)
__________________________________________
Elan Corporation, plc 2004 Restricted Stock Unit Plan
Elan Corporation, plc Employee Equity Purchase Plan
(Full title of the plans)
___________________________________________
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005-1702
Attention: Christopher T. Cox, Esq.
(212) 701-3000
(Name and address of agent for service)
Please send copies of all communications to:
Shane M. Cooke
Executive Vice President and Chief Financial Officer
Elan Corporation, plc
Lincoln House
Lincoln Place
Dublin 2, Ireland
(353) 1-709-4000
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CALCULATION OF REGISTRATION FEE
================================================================================================================
Proposed maximum Proposed maximum
Title of Amount to be offering price aggregate offering Amount of
securities to be registered registered(2) per share price registration
fee
----------------------------------------------------------------------------------------------------------------
Ordinary Shares, par value 5
Euro cents each (1) 3,000,000 $26.08 (3) $78,240,000 (3) $9,913.01
===============================================================================================================
(1) American Depositary Shares ("Elan ADSs"), evidenced by American Depositary
Receipts, issuable upon deposit of Ordinary Shares, par value 5 Euro cents
each (the "Ordinary Shares"), of Elan Corporation, plc ("Elan") are
registered on a separate registration statement on Form F-6. Each Elan ADS
represents one Ordinary Share.
(2) Amount to be registered includes (x) 1,500,000 Ordinary Shares, represented
by Elan ADSs, which may be issuable under Elan's 2004 Restricted Stock Unit
Plan and (y) 1,500,000 Ordinary Shares, represented by Elan ADSs, which may
be issuable under Elan's Employee Equity Purchase Plan. Pursuant to Rule
416 under the Securities Act of 1933, as amended, the amounts being
registered also include such indeterminate number of additional Ordinary
Shares as may become issuable under the anti-dilution provisions of Elan's
2004 Restricted Stock Unit Plan and Elan's Employee Equity Purchase Plan.
(3) Estimated solely for the purpose of calculating the registration fee,
computed pursuant to Rule 457(h) under the Securities Act on the basis of
the average of the high and low sales prices of an Elan ADS, as reported in
the New York Stock Exchange - Composite Transactions System on December 2 ,
2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended, and the
Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Elan Corporation, plc ("Elan,"
the "Registrant" or the "Company") with the Securities and Exchange Commission
(the "Commission") (File No. 1-13896) and are hereby incorporated by reference
into this Registration Statement:
Elan's Annual Report on Form 20-F for the fiscal year ended December 31, 2003,
filed with the Commission on April 29, 2004, as amended by Amendment No.1 on
Form 20-F/A, filed with the Commission on October 28, 2004;
Elan's Reports of Foreign Issuer on Form 6-K furnished to the Commission on
January 7, 2004, January 21, 2004, January 29, 2004, February 3, 2004, February
12, 2004, February 18, 2004, March 23, 2004, March 30, 2004, April 27, 2004, May
13, 2004, May 18, 2004, May 25, 2004, June 4, 2004, June 10, 2004, June 18,
2004, June 28, 2004, June 28, 2004, June 29, 2004, July 7, 2004, July 14, 2004,
July 21, 2004, July 26, 2004, July 29, 2004, August 18, 2004, September 22,
2004, September 29, 2004, October 12, 2004, October 25, 2004, October 28, 2004,
November 2, 2004, November 8, 2004, November 9, 2004, November 12, 2004,
November 17, 2004, November 18, 2004, November 19, 2004, November 24, 2004,
November 24, 2004, November 30, 2004 and December 3, 2004; and
The description of Elan's Ordinary Shares and American Depositary Shares
contained in Elan's Registration Statement on Form 8-A, filed with the
Commission on October 30, 1990, as amended by Elan's Form 8-A/A2 filed with the
Commission on June 4, 1999 and Elan's Form 8A/A3 filed with the Commission on
December 6, 2004.
In addition, all documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents. The
Company may also incorporate by reference into this Registration Statement any
Report of Foreign Issuer on Form 6-K (or portion thereof) subsequently furnished
by the Company to the Commission by identifying in such Form 6-K that it (or
such portion thereof) is being incorporated by reference into this Registration
Statement. Any statement contained in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein (or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein)
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Except to the extent indicated below, there is no charter provision,
by-law, contract, arrangement or statute under which any director or officer of
the Company is insured or indemnified in any manner against any liability which
he or she may incur in his or her capacity as such.
Paragraph 115 of the Articles of Association of the Company provides as
follows:
115. 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:
(1) 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:
(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 of the
Company Act, 1963, or section 42 of the Companies (Amendment)
Act, 1983, in which relief is granted to him by the court.
(2) Notwithstanding subsection (1), a company may purchase and
maintain for any of its officers or auditors insurance in respect of any
liability referred to in that subsection.
(3) Notwithstanding any provision contained in an enactment, the
articles of a company or otherwise, a director may be counted in the quorum
and may vote on any resolution to purchase or maintain any insurance under
which the director may benefit.
(4) Any directors' and officers' insurance purchased or maintained by
a company before the date on which the amendments made to this section by
the Companies (Auditing and Accounting) Act 2003 came into operation is as
valid and effective as it would have been if those amendments had been in
operation when that insurance was purchased or maintained.
(5) In this section a reference to an officer or auditor includes any
former or current officer or auditor of the company, as the case may be.
The Company has granted contractual indemnities to its directors, its
secretary and a number of members of its management ("Indemnified Persons").
Under these contractual indemnities, the Indemnified Persons will be indemnified
by the Company against certain liabilities, including any liabilities arising
out of anything done
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or not done by the Indemnified Persons in the context of any offering for the
subscription or purchase of the Company's securities. These contractual
indemnities will remain in effect for as long as the Indemnified Persons are
subject to any possible claim of a type covered by the indemnities. Certain
matters are, however, excluded from these contractual indemnities, including any
event based on any dishonest or fraudulent act or omission or willful misconduct
by or on behalf of the Indemnified Persons. In the case of the Company's
directors and secretary, their indemnities will only have effect so long as the
indemnity complies with Irish law, including in particular Section 200 of the
Irish Companies Act, 1963 (as described above).
The Company maintains a standard form of directors' and officers' liability
insurance policy, which provides coverage to its directors and officers for
certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as a part of this Registration Statement:
Exhibit No. Description
----------- -----------
4.1 Memorandum and Articles of Association of Elan (as amended by all
Special Resolutions up to and including June 17, 2004)
(incorporated by reference to Exhibit 3 of the Registration
Statement on Form 8A/A3 of Elan filed with the Commission on
December 6, 2004).
4.2 Amended and Restated Deposit Agreement, dated as of May 17, 1996
as further amended and restated as of November 12, 2003, among
Elan, The Bank of New York, as Depositary, and the holders from
time to time of American Depositary Receipts issued thereunder
(incorporated by reference to Exhibit 3(a) of the Registration
Statement on Form F-6 of Elan, Registration No. 333-110428, filed
with the Commission on November 12, 2003).
4.3 Specimen of American Depositary Receipt, evidencing American
Depositary Shares, representing deposited Ordinary Shares
(included in Exhibit 4.2).
5.1 Opinion of A&L Goodbody Solicitors with respect to the legality
of the Ordinary Shares being registered hereby.
23.1 Consent of A&L Goodbody (included in Exhibit 5.1).
23.2 Consent of KPMG, Independent Registered Public Accounting Firm.
24 Powers of Attorney (included on page II-6 of this Registration
Statement).
ITEM 9. 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:
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(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 the 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 the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the 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 registration statement is on Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
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.
(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 this
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 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 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dublin, Ireland, December 6, 2004.
ELAN CORPORATION, PLC
By: /s/ Shane M. Cooke
------------------------------------
Name: Shane M. Cooke
Title: Executive Vice President
and Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby appoints Shane M. Cooke and William F. Daniel, and each of them,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place, and stead, in
any and all capacities, to sign the Registration Statement on Form S-8 under the
Securities Act of 1933, as amended, to sign any and all pre- or post-effective
amendments to the Registration Statement on Form S-8, and to file the same with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Kelly Martin President and Chief Executive Officer and December 6, 2004
-------------------------------------- Director (Principal Executive Officer)
(Kelly Martin)
/s/ Shane M. Cooke Chief Financial Officer and Executive Vice December 6, 2004
-------------------------------------- President (Principal Financial Officer)
(Shane M. Cooke)
/s/ Nigel Clerkin Senior Vice President, Finance and Group December 6, 2004
-------------------------------------- Controller (Principal Accounting Officer)
(Nigel Clerkin)
/s/ Garo H. Armen Director December 6, 2004
--------------------------------------
(Garo H. Armen, Ph.D.)
Director December , 2004
--------------------------------------
(Brendan E. Boushel)
Director December , 2004
--------------------------------------
(Laurence G. Crowley)
/s/ William F. Daniel Director December 6, 2004
--------------------------------------
(William F. Daniel)
Director December , 2004
--------------------------------------
(Alan R. Gillespie, C.B.E. Ph.D.)
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Signature Title Date
--------- ----- ----
/s/ Ann Maynard Gray Director December 6, 2004
--------------------------------------
(Ann Maynard Gray)
/s/ John Groom Director December 6, 2004
--------------------------------------
(John Groom)
/s/ Kieran McGowan Director December 6, 2004
--------------------------------------
(Kieran McGowan)
/s/ Kevin M. McIntyre Director December 6, 2004
--------------------------------------
(Kevin M. McIntyre, M.D.)
/s/ Kyran McLaughlin Director December 6, 2004
--------------------------------------
(Kyran McLaughlin)
/s/ Dennis J. Selkoe Director December 6, 2004
--------------------------------------
(Dennis J. Selkoe, M.D.)
/s/ Richard L. Thornburgh Director December 6, 2004
--------------------------------------
(The Honorable Richard L. Thornburgh)
AUTHORIZED REPRESENTATIVE
Elan Pharmaceuticals, Inc.
By: /s/ Kelly Martin President and Chief Executive Officer December 6, 2004
-------------------------
(Kelly Martin)
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Exhibit Index
Exhibit No. Description
----------- -----------
4.1 Memorandum and Articles of Association of Elan (as amended
by all Special Resolutions up to and including June 17,
2004) (incorporated by reference to Exhibit 3 of the
Registration Statement on Form 8A/A3 of Elan filed with the
Commission on December 6, 2004).
4.2 Amended and Restated Deposit Agreement, dated as of May 17,
1996 as further amended and restated as of November 12,
2003, among Elan, The Bank of New York, as Depositary, and
the holders from time to time of American Depositary
Receipts issued thereunder (incorporated by reference to
Exhibit 3(a) of the Registration Statement on Form F-6 of
Elan, Registration No. 333-110428, filed with the Commission
on November 12, 2003).
4.3 Specimen of American Depositary Receipt, evidencing American
Depositary Shares, representing deposited Ordinary Shares
(included in Exhibit 4.2).
5.1 Opinion of A&L Goodbody Solicitors with respect to the
legality of the Ordinary Shares being registered hereby.
23.1 Consent of A&L Goodbody (included in Exhibit 5.1).
23.2 Consent of KPMG, Independent Registered Public Accounting
Firm.
24 Powers of Attorney (included on page II-6 of this
Registration Statement).
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