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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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Amendment No. 1 to
SCHEDULE TO
(Rule 13e-4)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
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ELAN FINANCE CORPORATION LTD.
ELAN CORPORATION, PLC
(Name of Subject Company (Issuer))
_______________
ELAN FINANCE CORPORATION LTD.
ELAN CORPORATION, PLC
(Name of Filing Persons (Offeror))
Liquid Yield Option(TM) Notes due 2018 (Zero Coupon-Subordinated)
(Title of Class of Securities)
284129 AA 1
284129 AB 9
284129 AC 7
(CUSIP Numbers of Class of Securities)
Jean M. Duvall, Esq.
General Counsel
Elan Corporation, plc
800 Gateway Boulevard
South San Francisco, CA 94080
(Name, Address, and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Filing Persons)
with a copy to:
Christopher Cox, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, NY 10005
(212) 701-3000
CALCULATION OF FILING FEE
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Amount of Filing Fee**
Transaction Valuation*
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$494,024,247 $39,967
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* Calculated solely for purposes of determining the filing fee. The purchase
price of the Liquid Yield Option(TM) Notes due 2018 (Zero
Coupon-Subordinated), as described herein, is $616.57 per $1,000 principal
amount at maturity outstanding. As of November 14, 2003, there was
approximately $801,246,000 in aggregate principal amount at maturity
outstanding, resulting in an aggregate maximum purchase price of
approximately $494,024,247.
** The amount of the filing fee was calculated in accordance with Rule 0-11 of
the Securities Exchange Act of 1934, as amended, and equals $80.90 for each
$1,000,000 of the value of the transaction.
|X| Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $39,967 Filing Party: Elan Corporation, plc
Form or Registration No.: 005-43481 Date Filed: 11/14/03
/ / Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes to designate any transactions to which this
statement relates:
[ ] third-party tender offer subject to Rule 14d-1. [ ] going-private transaction subject to Rule 13e-3.
|X| issuer tender offer subject to Rule 13e-4. [ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: / /
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INTRODUCTORY STATEMENT
This Amendment No. 1 amends and supplements the Tender Offer Statement on
Schedule TO-I ("Schedule TO-I"), originally filed by Elan Corporation, plc, a
public limited company organized under the laws of Ireland (the "Guarantor"),
and Elan Finance Corporation Ltd., a company organized under the laws of Bermuda
and a wholly-owned subsidiary of the Guarantor (the "Company"), on November 14,
2003, which relates to the offer by the Company to purchase, at the option of
the holder (the "Put Option"), the Liquid Yield Option(TM) Notes due 2018 (Zero
Coupon-Subordinated) issued by the Company on December 14, 1998 and fully and
unconditionally guaranteed by the Guarantor (the "Securities"), upon the terms
and subject to the conditions set forth in the Indenture (as defined below), the
Company Notice dated November 14, 2003 (the "Company Notice"), the Securities
and the related offer materials filed as Exhibits (a)(1) to (d)(1) to this
Schedule TO-I (which Company Notice and related offer materials, as amended or
supplemented from time to time, collectively constitute the "Option Materials").
The Securities were issued pursuant to an Indenture, dated as of December 14,
1998 (the "Indenture"), among the Company, the Guarantor and The Bank of New
York, as trustee ("Trustee").
The Put Option will expire at 5:00 p.m., New York City time, on Monday,
December 15, 2003. This Schedule TO-I, as amended, is intended to satisfy the
disclosure requirements of Rule 13e-4(c)(2) under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
The terms "Liquid Yield Option" and "LYONs" are trademarks of Merrill Lynch
& Co., Inc.
Item 1. Summary Term Sheet.
Item 1 of the Schedule TO-I is hereby amended and supplemented as follows:
The paragraph appearing under question 7 "When does the Put Option expire?"
in the "Summary Term Sheet" section on page 2 of the Company Notice is hereby
amended and restated in its entirety as follows:
"The Put Option expires at 5:00 p.m., New York City time, on Monday,
December 15, 2003 (the "Purchase Date"). Unless otherwise required by
applicable law, we will not extend the period Holders have to accept the
Put Option. In addition, we will not change the terms of the Put Option. We
will pay for purchased Securities promptly following the expiration of the
Put Option. The Paying Agent must receive your validly surrendered
Securities before we will pay for your Securities. (Page 4)"
The paragraph appearing under question 8 "What are the conditions to the
purchase by the Company of the Securities?" in the "Summary Term Sheet" section
on page 2 of the Company Notice is hereby amended and restated in its entirety
as follows:
"The purchase by the Company of the Securities as to which a Purchase
Notice has been delivered and not validly withdrawn is conditioned upon
the Holder delivering the Securities, together with necessary
endorsements, to the Paying Agent at the same time, or at any time
after, delivery of the Purchase Notice. Additionally, pursuant to the
terms of the Indenture, the purchase by the Company of the Securities
pursuant to the Put Option is conditioned upon there being no Event of
Default under the Indenture that has occurred (prior to, on or after
the delivery of a Purchase Notice) and is continuing (other than a
default in the payment of the Purchase Price with respect to the
Securities) and upon the purchase being lawful. These conditions are
required pursuant to the terms of the Indenture and, accordingly, may
not be waived by the Company or the Guarantor. (page 7)"
The paragraph appearing under question 10 "If I surrender, when will I
receive payment for my Securities?" in the "Summary Term Sheet" section on page
2 of the Company Notice is hereby amended and restated in its entirety as
follows:
"We will accept for payment all validly surrendered Securities
promptly upon expiration of the Put Option, and we will pay for all validly
surrendered Securities promptly following the expiration of the
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Put Option. Pursuant to the terms of the Indenture, we will promptly
forward to the Paying Agent on December 16, 2003 the appropriate amount of
funds required to pay the Purchase Price for the surrendered Securities.
The Paying Agent will then promptly distribute the funds to the Holders.
Holders must deliver their Securities to the Paying Agent before the Paying
Agent will distribute their funds. (Page 8)"
The paragraph appearing under question 11 "Until what time can I withdraw
previously surrendered Securities?" in the "Summary Term Sheet" section on page
3 of the Company Notice is hereby amended and restated in its entirety as
follows:
"You can withdraw Securities previously surrendered for purchase at
any time until 5:00 p.m., New York City time, on December 15, 2003. You may
also withdraw previously surrendered Securities at any time after 12:01
a.m., New York City time, on January 15, 2004, the expiration of 40
business days from the date of this Company Notice, if your Securities have
not yet been accepted for payment by the Company. (Page 8)"
Item 4. Terms of the Transaction.
Item 4 of the Schedule TO-I is hereby amended and supplemented as follows:
The seventh paragraph on the cover page of the Company Notice is hereby
amended and restated in its entirety as follows:
"The Purchase Price for any Security as to which a Purchase Notice has
been given and not withdrawn will be paid promptly following the expiration
of the Put Option. The Paying Agent must receive your validly surrendered
Securities before the Purchase Price for your Securities will be paid."
The second paragraph of subsection 2.1 "The Company's Obligation to
Purchase the Securities; Purpose of the Transaction" on page 4 of the Company
Notice is hereby amended and restated in its entirety as follows:
"This Put Option will expire at 5:00 p.m., New York City time, on
Monday, December 15, 2003 (the "Purchase Date"), and the purchase will be
made promptly following the expiration of the Put Option. Unless otherwise
required by applicable law, we will not extend the period Holders have to
accept the Put Option. In addition, we will not change the terms of the Put
Option. Pursuant to the terms of the Indenture, the Company will deliver
funds to the Paying Agent on December 16, 2003 (the "Payment Date"). The
payment by the Company for validly surrendered Securities is subject to the
Paying Agent's receipt of the certificate(s) representing the surrendered
Securities."
The second sentence of the third paragraph of subsection 2.2 "Purchase
Price" on page 5 of the Company Notice is hereby amended and restated in its
entirety as follows:
"Each Holder must make his or her own decision whether to surrender his
or her Securities for purchase and, if so, the principal amount of
Securities so surrendered based on such Holder's assessment of the
other information presented in this Company Notice and the current
market value of the Securities and the ADSs."
Subsection 2.4 "Market for the Securities and ADSs" on page 5 of the
Company Notice is hereby amended by adding the following paragraph immediately
after the first paragraph of such subsection:
"To the knowledge of the Guarantor and the Company, the trading
volumes for the Securities are generally low. To the extent that Securities
are tendered and accepted pursuant to the Put Option, the trading market
for the Securities may become even more limited. A bid for a debt security
with a smaller outstanding principal amount available for trading (a
smaller "float") may be lower than a bid for a comparable debt security
with a greater float. Therefore, the market price for Securities not
tendered may be adversely affected to the extent that the number of
Securities purchased pursuant to the Put Option reduces the float. The
reduced float may also tend to make the trading price more volatile.
Holders of unpurchased
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Securities may attempt to obtain quotations for the Securities from their
brokers; however, there can be no assurance that an active trading market
will exist for the Securities following the consummation of the Put Option.
The extent of the public market for the Securities following consummation
of the Put Option would depend on the number of Holders remaining at such
time and the interest in maintaining a market in the Securities on the part
of securities firms and other factors."
Subsection 2.7 "Ranking" on page 6 of the Company Notice is hereby amended
by adding the following paragraph immediately after the first paragraph of such
subsection:
"As of November 30, 2003, the Company had no senior debt outstanding
and the Guarantor had approximately $1.272 billion in senior debt
outstanding. In addition, as of October 31, 2003, the Guarantor's
subsidiaries (other than the Company) had approximately $1.844 billion of
liabilities, including trade payables, to which the Guarantor's guarantee
would have been effectively subordinated. The Indenture does not limit the
amount of additional senior debt that may be incurred in the future by the
Guarantor or any of its Subsidiaries (including the Company). However, due
to restrictions contained in the agreements governing the 9.56 % Guaranteed
Notes due June 28, 2004 issued by Elan Pharmaceutical Investments II, Ltd.,
a wholly owned subsidiary of the Guarantor, and guaranteed by the
Guarantor, and the Series B and Series C Guaranteed Notes due March 15,
2005 issued by Elan Pharmaceutical Investments III, Ltd., a wholly-owned
subsidiary of the Guarantor, and guaranteed by the Guarantor, the Guarantor
and its subsidiaries currently have no ability to incur additional
indebtedness."
Subsection 2.8 "Conditions" on page 7 of the Company Notice is hereby
amended and restated in its entirety as follows:
"The purchase by the Company of the Securities as to which a Purchase
Notice has been delivered and not validly withdrawn is conditioned upon
the Holder delivering the Securities, together with necessary
endorsements, to the Paying Agent at the same time, or at any time
after, delivery of the Purchase Notice. Additionally, pursuant to the
terms of the Indenture, the purchase by the Company of the Securities
pursuant to the Put Option is conditioned upon there being no Event of
Default under the Indenture that has occurred (prior to, on or after
the delivery of a Purchase Notice) and is continuing (other than a
default in the payment of the Purchase Price with respect to the
Securities) and upon the purchase being lawful. These conditions are
required pursuant to the terms of the Indenture and, accordingly, may
not be waived by the Company or the Guarantor.
Under the Indenture, an Event of Default occurs if:
- the Company or the Guarantor default in the making of any payment
under the Indenture when the payment becomes due and payable, whether
or not the payment is prohibited by the terms of the Indenture;
- the Guarantor fails to deliver ADSs (or cash in lieu of fractional
ADSs) or cash in lieu thereof when ADSs (or cash in lieu of fractional
ADSs) or cash in lieu thereof are required to be delivered upon
exchange of a Security and the failure continues for 10 days;
- the Company or the Guarantor fails to comply with any of its other
agreements in the Securities or the Indenture and the failure
continues for 60 days after receipt by the Company or the Guarantor,
as the case may be, of a notice of default;
- any default occurs under any bond, debenture, note or other evidence
or indebtedness for money borrowed of the Company, the Guarantor or
any of the Guarantor's other subsidiaries, which default shall have
resulted in indebtedness being accelerated, where the aggregate amount
so accelerated exceeds the greater of (i) $20 million and (ii) 2.0% of
the Guarantor's consolidated net assets (calculated in accordance with
the Indenture) without the indebtedness being discharged or the
acceleration having been rescinded or annulled within 10 days after
receipt by the Company or the Guarantor, as the case may be, of a
notice or default;
- certain events of bankruptcy occur with respect to the Company or the
Guarantor; or
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- the Guarantor's guarantee ceases to be in full force and effect or is
declared null and void or the Guarantor denies that it has any further
liability under its guarantee or gives notice to such effect.
There is currently no Default or Event of Default under the Indenture."
The second sentence of the first paragraph of Section 3 "Procedures to Be
Followed by Holders Electing to Surrender Securities for Purchase" on page 7 of
the Company Notice is hereby amended and restated in its entirety as follows:
"Additionally, Holders will not be eligible to receive the Purchase Price
until such time as any certificates representing the surrendered Securities
are delivered to the Paying Agent."
The second sentence of the first paragraph of Section 4 "Right of
Withdrawal" on page 8 of the Company Notice is hereby amended and restated in
its entirety as follows:
"Holders may also withdraw surrendered Securities at any time after 12:01
a.m., New York City time, on January 15, 2004, the expiration of 40
business days from the date of this Company Notice, if their Securities
have not yet been accepted for payment."
The first paragraph of Section 5 "Payment for Surrendered Securities" on
page 8 of the Company Notice is hereby amended and restated in its entirety as
follows:
"We will pay for validly surrendered Securities promptly following the
expiration of the Put Option. We will forward to the Paying Agent, no later
than 1:00 p.m., New York City time, on December 16, 2003 (the "Payment
Date") the appropriate amount of funds required to pay the Purchase Price
for the surrendered Securities. The Paying Agent will then promptly
distribute the cash to each Holder who validly surrendered Securities. A
Holder must deliver the Holder's Securities to the Paying Agent before the
Paying Agent will distribute the Purchase Price to the Holder."
The second sentence of the first paragraph of Section 10 "Material United
States Tax Considerations" on page 10 of the Company Notice is hereby amended
and restated in its entirety as follows:
"It does not constitute tax advice."
The first sentence of the second paragraph of Section 10 "Material United
States Tax Considerations" on page 10 of the Company Notice is hereby amended
and restated in its entirety as follows:
"THIS SUMMARY OF UNITED STATES FEDERAL TAX CONSEQUENCES DOES NOT CONSTITUTE
TAX ADVICE."
The fourth sentence of the second paragraph on page 1 of the Purchase
Notice is hereby amended and restated in its entirety as follows:
"You may also withdraw the surrendered Securities if the Company has not
yet accepted them for payment after 12:01 a.m., New York City time, on
January 15, 2004 (the expiration of 40 business days from the date of the
Company Notice)."
Subsection (d) of the third paragraph on page 3 of the Purchase Notice is
hereby amended and restated in its entirety as follows:
"(d) the undersigned agrees to all of the terms of the Company Notice and
this Purchase Notice."
The Company will disregard any attestation from holders of the Securities
pursuant to the previous subsection (d) that the holders have "read" the terms
of the Company Notice and the Purchase Notice, to the extent that the Company
receives any executed Purchase Notices from the holders in connection with the
Put Option.
The third sentence in Section 10 "Withdrawal Right" on page 13 of the
Purchase Notice is hereby amended and restated in its entirety as follows:
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"You may also withdraw the surrendered Securities if the Company has
not yet accepted them for payment after 12:01 a.m., New York City time, on
January 15, 2004 (the expiration of 40 business days from the date of the
Company Notice)."
The fourth sentence of the first paragraph on page 1 of the Notice of
Withdrawal is hereby amended and restated in its entirety as follows:
"YOU MAY ALSO WITHDRAW SURRENDERED SECURITIES IF THE COMPANY HAS NOT YET
ACCEPTED THEM FOR PAYMENT AFTER 12:01 A.M., NEW YORK CITY TIME, ON JANUARY
15, 2004 (THE EXPIRATION OF 40 BUSINESS DAYS FROM THE DATE OF THE COMPANY
NOTICE)."
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
ELAN CORPORATION, PLC
By: /s/ William F. Daniel
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Name: William F. Daniel
Title: Executive Vice President
and Company Secretary
ELAN FINANCE CORPORATION LTD.
By: /s/ Kevin Insley
---------------------------------
Name: Kevin Insley
Title: President
Dated: December 3, 2003
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EXHIBIT INDEX
Exhibit No. Description
(a)(1)(A)* Company Notice to Holders of Elan Finance
Corporation Ltd. Liquid Yield Option(TM) Notes due
2018 (Zero Coupon-Subordinated), dated November 14,
2003.
(a)(1)(B)* Form of Purchase Notice. (a)(1)(C) * Form of
Notice of Withdrawal. (a)(1)(D) * Substitute Form
W-9.
(a)(1)(E)* Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
(a)(5)(A) * Press Release issued by Elan
Corporation, plc on November 14, 2003.
(b)* Not applicable.
(d)(1)* Indenture, dated as of December 14, 1998, among
Elan Finance Corporation Ltd., as Issuer, Elan
Corporation, plc, as Guarantor, and The Bank of New
York, as Trustee (incorporated by reference to
Exhibit 4.3 of the Registration Statement on Form
F-3 of Elan Finance Corporation Ltd. and Elan
Corporation, plc, Registration No. 333-10726, filed
with the Securities and Exchange Commission on
August 27, 1999).
(g)* Not applicable. (h) Not applicable.
* Previously filed.
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