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United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F
(MARK ONE)
[ ] REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
OR
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended: December 31, 2002
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______.
Commission file number: 1-13896
ELAN CORPORATION, PLC
(Exact name of Registrant as specified in its charter)
IRELAND
(Jurisdiction of incorporation or organization)
LINCOLN HOUSE, LINCOLN PLACE, DUBLIN 2, IRELAND
(Address of principal executive offices)
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Securities registered or to be registered pursuant to
Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
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American Depositary Shares ("ADSs"), representing Ordinary Shares,
par value 5 Euro cents each ("Ordinary Shares")......................... New York Stock Exchange
Ordinary Shares........................................................... New York Stock Exchange*
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* Listed, not for trading, but only in connection with the registration of
ADSs pursuant to the requirements of the Securities and Exchange
Commission.
Securities registered or to be registered pursuant to Section 12(g) of the Act:
Warrants to purchase ADSs, Series Z
---------------------
(Title of Class)
Securities for which there is a reporting obligation pursuant to
Section 15(d) of the Act:
None
---------------------
(Title of Class)
Indicate the number of outstanding shares of each of the issuer's classes of
capital or common stock as of the close of the period covered by the annual
report: 350,408,863 Ordinary Shares
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days:
Yes: [X] No: [ ]
Indicate by check mark which financial statement item the registrant has elected
to follow:
Item 17: [ ] Item 18: [X]
Pursuant to Rule 12b-23(a) of the Securities Exchange Act of 1934, as
amended, the information for this 2002 Annual Report on Form 20-F of Elan
Corporation, plc (the "Company") set out below is being incorporated by
reference from the "Elan Corporation, plc 2002 Annual Report and Form 20-F" (the
"2002 Annual Report") filed as an exhibit to its Report of Foreign Issuer on
Form 6-K dated September 4, 2003 (the "Form 6-K").
References below to major headings include all information under such major
headings, including subheadings, unless such reference is part of a reference to
a subheading, in which case such reference includes only the information
contained under such subheading.
The information set forth under the headings "Terms", "Financial
Statements", "Statements of Competitive Position", "Trademarks" and "Cautionary
Factors That May Affect Future Results" on the inside front cover of the 2002
Annual Report filed as an exhibit to the Form 6-K is incorporated herein by
reference.
PART I
Item 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
Not applicable.
Item 2. OFFER STATISTICS AND EXPECTED TIMETABLE
Not applicable.
Item 3. KEY INFORMATION
A. Selected Financial Data
The information set forth under the heading "Selected Financial Data" on
pages 170-171 of the 2002 Annual Report, filed as an exhibit to the Form 6-K, is
incorporated herein by reference.
B. Capitalization and Indebtedness
Not applicable.
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
The information set forth under the heading "Risk Factors" on pages 177-182
of the 2002 Annual Report, filed as an exhibit to the Form 6-K, is incorporated
herein by reference.
2
Item 4. INFORMATION ON THE COMPANY
A. History and Development of the Company
The information set forth under the headings "Operating Review--Company
Overview", "Operating Review--Company Mission and Goals", "Operating
Review--Recovery Plan--Divestiture Programme" and "Operating Review--Recovery
Plan--Financial Commitments and Contingencies" on pages 3-6, under the heading
"Notes Relating to Financial Statements--Note 12 Fixed Assets--Tangible Assets"
on page 104, and under the heading "Notes Relating to Financial Statements--Note
23 Acquisitions & Disposals" on pages 117-118 of the 2002 Annual Report, filed
as an exhibit to the Form 6-K, is incorporated herein by reference.
B. Business Overview
The information set forth under the heading "Operating Review" on pages
3-26, under the heading "Financial Review--Segmental Analysis" on pages 29-30,
under the heading "Notes Relating to Financial Statements--Note 2 Segment
Information" on pages 86-89, and under the heading "Statements of Competitive
Position" on the inside front cover of the 2002 Annual Report, filed as an
exhibit to the Form 6-K, is incorporated herein by reference.
C. Organizational Structure
The information set forth under the heading "Operating Review--Company
Overview" on page 3, under the heading "Directors' Report" on pages 60-68, and
under the heading "Notes Relating to Financial Statements--Note 32 Subsidiary
and Associated Undertakings" on page 142 of the 2002 Annual Report, filed as an
exhibit to the Form 6-K, is incorporated herein by reference.
D. Property, Plants and Equipment
The information set forth under the heading "Operating
Review--Manufacturing" on page 10, under the heading "Operating
Review--Principal Properties" on page 19, in the table titled "Principal
Properties" on page 19, under the heading "Notes Relating to Financial
Statements--Note 12 Fixed Assets--Tangible Assets" on page 104, and under the
heading "Notes Relating to Financial Statements--Note 24 Commitments and
Contingencies" on page 119 of the 2002 Annual Report, filed as an exhibit to the
Form 6-K, is incorporated herein by reference.
Item 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS
The information set forth under the heading "Operating Review--Patents and
Intellectual Property Rights" (including the table) on pages 11-12, in the table
titled "Biopharmaceutical Research and Development--Key Product Pipeline" on
page 23, under the heading "Operating Review--Research and Development"
(including the table) on pages 23-26, under the heading "Financial Review" on
pages 27-59, under the heading "Notes Relating to Financial Statements--Note 22
Financial Instruments" on pages 113-117, under the heading "Notes Relating to
Financial Statements--Note 24 Commitments and Contingencies" on pages 119-122,
and under the heading "Notes Relating to
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Financial Statements--Note 30 Consolidated Cash Flow Statement" on pages 138-139
of the 2002 Annual Report, filed as an exhibit to the Form 6-K, is incorporated
herein by reference.
Item 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
A. Directors and Senior Management
The information set forth under the heading "Directors' Report--Board of
Directors and Senior Management of the Company" on pages 64-66 of the 2002
Annual Report, filed as an exhibit to the Form 6-K, is incorporated herein by
reference.
B. Compensation
The information set forth under the heading "Directors' Report--Directors'
Interests" on page 61, under the heading "Directors' Report--Directors' Options"
on page 62, under the heading "Directors' Report--Directors' Remuneration" on
pages 63-64, under the heading "Directors' Report--Compensation of Directors and
Officers" on page 66, under the heading "Directors' Report--Service Contracts"
on pages 67-68, under the heading "Corporate Governance--Report of the
Compensation Committee" on pages 71-72 and under the heading "Notes Relating to
Financial Statements--Note 28 Pension Plans" on pages 132-135 of the 2002 Annual
Report, filed as an exhibit to the Form 6-K, is incorporated herein by
reference.
C. Board Practices
The information set forth under the heading "Directors' Report--Directors"
on page 60, under the heading "Directors' Report--Statement of Directors'
Responsibilities" on page 67, under the heading "Directors' Report--Service
Contracts" on pages 67-68 and under the heading "Corporate Governance" on pages
69-72 of the 2002 Annual Report, filed as an exhibit to the Form 6-K, is
incorporated herein by reference.
D. Employees
The information set forth under the heading "Operating Review--Employees"
on page 13 and under the heading "Notes Relating to Financial Statements--Note
10 Staff Numbers and Costs" on page 102 of the 2002 Annual Report, filed as an
exhibit to the Form 6-K, is incorporated herein by reference.
E. Share Ownership
The information set forth under the heading "Directors' Report--Directors'
Interests" on page 61, under the heading "Directors' Report--Directors' Options"
on page 62, under the heading "Corporate Governance--Report of the Compensation
Committee" on pages 71-72, and under the heading "Notes Relating to Financial
Statements--Note 21 Share Options and Warrants" on pages 112-113 of the 2002
Annual Report, filed as an exhibit to the Form 6-K, is incorporated herein by
reference.
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Item 7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
A. Major Shareholders
The information set forth under the heading "Directors' Report--Significant
Shareholdings" on pages 66-67 and under the heading "Shareholders'
Information--Nature of Trading Market" on pages 172-174 of the 2002 Annual
Report, filed as an exhibit to the Form 6-K, is incorporated herein by
reference.
B. Related Party Transactions
The information set forth under the heading "Directors'
Report--Transactions with Directors" on page 66, under the heading "Directors'
Report--Service Contracts" on pages 67-68, and under the heading "Notes Relating
to Financial Statements--Note 27 Related Parties" on pages 130-132 of the 2002
Annual Report, filed as an exhibit to the Form 6-K, is incorporated herein by
reference.
C. Interests of Experts and Counsel
Not applicable.
Item 8. FINANCIAL INFORMATION
A. Consolidated Statements and Other Financial Information
The information set forth in Exhibit 10.1 hereto ("Report of Independent
Chartered Accountants") is incorporated in this section by reference. The
information set forth under the heading "Directors' Report--Financial Results
and Dividends" on page 60, under the heading "Financial Statements" on pages
75-80, under the heading "Notes Relating to Financial Statements" on pages
81-169 and in the introductory paragraph under the heading "Shareholders'
Information" on page 172 of the 2002 Annual Report, filed as an exhibit to the
Form 6-K, is incorporated herein by reference.
B. Significant Changes
The information set forth under the heading "Notes Relating to Financial
Statements--Note 29 Post Balance Sheet Events" on pages 136-138 of the 2002
Annual Report, filed as an exhibit to the Form 6-K, is incorporated herein by
reference.
Item 9. THE OFFER AND LISTING
A. Offer and Listing Details
The information set forth under the heading "Shareholders'
Information--Nature of Trading Market" on pages 172-174 of the 2002 Annual
Report, filed as an exhibit to the Form 6-K, is incorporated herein by
reference.
B. Plan of Distribution
Not applicable.
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C. Markets
The information set forth under the heading "Shareholders'
Information--Nature of Trading Market" on pages 172-174 of the 2002 Annual
Report, filed as an exhibit to the Form 6-K, is incorporated herein by
reference.
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
Item 10. ADDITIONAL INFORMATION
A. Share Capital
Not applicable.
B. Memorandum and Articles of Association
The information set forth under the heading "Memorandum and Articles of
Association" on pages 183-184 of the 2002 Annual Report, filed as an exhibit to
the Form 6-K, is incorporated herein by reference.
C. Material Contracts
The information set forth under the heading "Operating Review--Recovery
Plan--Divestiture Programme--Skelaxin & Sonata" on page 4, under the heading
"Operating Review--Recovery Plan--Divestiture Programme--Abelcet" on pages 4-5,
and under the heading "Operating Review--Research and Development--Antegren" on
pages 23-24 of the 2002 Annual Report, filed as an exhibit to the Form 6-K, is
incorporated herein by reference.
D. Exchange Controls
The information set forth under the heading "Shareholders'
Information--Exchange Controls and Other Limitations Affecting Security Holders"
on page 174 of the 2002 Annual Report, filed as an exhibit to the Form 6-K, is
incorporated herein by reference.
6
E. Taxation
The information set forth under the heading "Shareholders'
Information--Irish Taxation" on pages 174-176 of the 2002 Annual Report, filed
as an exhibit to the Form 6-K, is incorporated herein by reference.
F. Dividends and Paying Agents
Not applicable.
G. Statement by Experts
Not applicable.
H. Documents on Display
The information set forth under the heading "Memorandum and Articles of
Association--Documents on Display" on page 184 of the 2002 Annual Report, filed
as an exhibit to the Form 6-K, is incorporated herein by reference.
I. Subsidiary Information
The information set forth under the heading "Notes Relating to Financial
Statements--Note 32 Subsidiary and Associated Undertakings" on page 142 of the
2002 Annual Report, filed as an exhibit to the Form 6-K, is incorporated herein
by reference.
Item 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The information set forth under the heading "Financial Review--Treasury
Policy" on page 58, under the heading "Financial Review--Exchange Risk" on pages
58-59, under the heading "Financial Review--Interest Rate Risk" on page 59,
under the heading "Financial Review--Credit Risk" on page 59, under the heading
"Financial Review--Liquidity Risk" on page 59, under the heading "Financial
Review--Equity Price Risk (U.S. GAAP)" on page 59, and under the heading "Notes
Relating to Financial Statements--Note 22 Financial Instruments" on pages
113-117 of the 2002 Annual Report, filed as an exhibit to the Form 6-K, is
incorporated herein by reference.
Item 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
Not applicable.
PART II
Item 13. DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
(a) As a result of the Company's failure to complete and file with the
Securities and Exchange Commission the Company's Annual Report on Form 20-F for
the fiscal year ended December 31, 2002, on June 30, 2003, the Company defaulted
under certain covenants contained in agreements governing notes issued by the
Company's wholly-
7
owned subsidiaries, Elan Pharmaceutical Investments II, Ltd. (the "EPIL II
Notes") and Elan Pharmaceutical Investments III, Ltd. (the "EPIL III Notes" and,
together with the EPIL II Notes, the "EPIL Notes"). The covenants required that
the Company provide to each holder of EPIL Notes the Company's audited
consolidated financial statements, together with an officer's certificate
relating thereto, on or prior to June 29, 2003. On July 15, 2003, the Company
also defaulted under a covenant contained in the indenture governing the
Company's 7.25% Senior Notes that required the Company to file with the
Securities and Exchange Commission the Company's Annual Report on Form 20-F for
the fiscal year ended December 31, 2002 on or prior to July 15, 2003.
Commencing on July 29, 2003, the Company received a series of separate
agreements from a majority of the holders of each of the EPIL II Notes and the
EPIL III Notes waiving compliance by the Company with the applicable covenants
described above. The series of waivers was effective through September 5, 2003.
With the completion of this Annual Report on Form 20-F, the defaults described
above will be cured in all respects. In the absence of the waivers, the defaults
under the EPIL Notes would have become events of default on July 30, 2003. In
the absence of the completion and filing with the Securities and Exchange
Commission of this Annual Report on Form 20-F, the default under the indenture
governing the Company's 7.25% Senior Notes would become an event of default on
September 16, 2003.
(b) There have been no arrears in the payment of dividends on, and no
material delinquencies with respect to, any class of preferred stock of any
significant subsidiary.
Item 14. MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF
PROCEEDS
Not applicable.
Item 15. CONTROLS AND PROCEDURES
Disclosure Controls and Procedures
Within the 90 days prior to the date of this report, the Company, under the
supervision and with the participation of the Company's management, including G.
Kelly Martin, president and chief executive officer, and Shane M. Cooke,
executive vice president and chief financial officer, evaluated the
effectiveness of the design and operation of the Company's "disclosure controls
and procedures" (the "Disclosure Controls"). Disclosure Controls are procedures
designed to ensure that information required to be disclosed in the Company's
reports filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), such as its Annual Report on Form 20-F, is recorded, processed,
summarized and reported within the time periods specified in the Securities and
Exchange Commission rules and forms. Disclosure Controls are also designed to
ensure that the information is accumulated and communicated to the Company's
management, including Mr. Martin and Mr. Cooke, as appropriate, to allow timely
decisions regarding required disclosure.
The evaluation of the Company's Disclosure Controls included a review of
the controls' objectives and design, the implementation of the controls and the
effect of the controls on the information generated for use in the Company's
Annual Report on Form
8
20-F. During the evaluation, management sought to identify data errors, control
problems or acts of fraud and confirm that appropriate corrective actions,
including process improvements, were being undertaken. This type of evaluation
is performed by the Company on a regular basis. The overall goals of these
evaluation activities are to monitor the Company's Disclosure Controls and to
modify them as necessary.
The Company's management, including Mr. Martin and Mr. Cooke, does not
expect that the Company's Disclosure Controls will prevent all error and all
fraud. A well-designed control system can provide only reasonable assurance that
the objectives of the system will be met. In addition, a control system
inherently reflects the fact that there are resource constraints and the
benefits of the controls designed must be weighed against the cost of their
implementation. Because of these and other inherent limitations in all control
systems, the evaluation conducted of the Company's Disclosure Controls cannot
provide absolute assurance that all instances of fraud, if any, within the
Company will be detected. For example, mistakes and judgmental errors in
decision-making can occur and controls can be circumvented by the acts of one
individual or groups of individuals.
Based upon their evaluation of the Company's Disclosure Controls, Mr.
Martin and Mr. Cooke have concluded that, subject to the limitations noted
above, the Company's Disclosure Controls are effective to ensure that material
information relating to the Company and its consolidated subsidiaries is made
known to management, including Mr. Martin and Mr. Cooke.
There were no significant changes in the Company's internal controls or in
other factors that could significantly affect the Company's Disclosure Controls
subsequent to the date of the evaluation activities described above, nor were
there any significant deficiencies or material weaknesses in the Company's
internal controls. Accordingly, no corrective actions were required or
undertaken.
Immediately following the signature section of the Company's Annual Report
on Form 20-F, Mr. Martin and Mr. Cooke have each provided certifications (the
"Rule 13a-14 Certifications") in the form required in accordance with Rule
13a-14 of the Exchange Act. The information provided in this Item 15 includes
the information concerning the evaluation of the Company's disclosure controls
and procedures referred to in the Rule 13a-14 Certifications and it should be
read in conjunction with the Rule 13a-14 Certifications for a more complete
understanding of the topics presented.
PART III
Item 17. FINANCIAL STATEMENTS
The Company has responded to Item 18 in lieu of this item.
Item 18. FINANCIAL STATEMENTS
The information set forth in Exhibit 10.1 hereto ("Report of Independent
Chartered Accountants") is incorporated in this section by reference. The
information set forth under the heading "Financial Statements" on pages 75-80
and under the heading "Notes Relating to Financial Statements" on pages 81-169
of the 2002 Annual Report, filed as an exhibit to the Form 6-K, is incorporated
herein by reference.
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Item 19. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
1.1 Memorandum and Articles of Association of Elan
Corporation, plc (as amended by all Special Resolutions
up to and including August 19, 2002) (incorporated by
reference to Exhibit 4.1 of the Registration Statement
on Form F-3 of Elan Corporation, plc, Registration
Statement No. 333-100252, filed with the Commission on
October 1, 2002).
2(b)(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 Commission on
August 27, 1999).
2(b)(2) Form of Liquid Yield Option(TM) Note (incorporated by
reference to Exhibit 4.1 of the Registration Statement
on Form F-3 of Elan Finance Corporation, Ltd. and Elan
Corporation, plc, Registration No. 333-10726, filed with
the Commission on August 27, 1999).
2(b)(3) Indenture, dated as of February 21, 2001, among Athena
Neurosciences Finance, LLC, as Issuer, Elan Corporation,
plc, as Guarantor, and The Bank of New York, as Trustee
(incorporated by reference to Exhibit 4.11 of the Report
of Foreign Issuer on Form 6-K of Elan Corporation, plc,
filed with the Commission on February 21, 2001).
2(b)(4) First Supplemental Indenture, dated as of February 21,
2001, among Athena Neurosciences Finance, LLC, as
Issuer, Elan Corporation, plc, as Guarantor, and The
Bank of New York, as Trustee (incorporated by reference
to Exhibit 4.12 of the Report of Foreign Issuer on Form
6-K of Elan Corporation, plc, filed with the Commission
on February 21, 2001).
2(b)(5) Form of Senior Note (incorporated by reference to
Exhibit 4.13 of the Report of Foreign Issuer on Form 6-K
of Elan Corporation, plc, filed with the Commission on
February 21, 2001).
10
2(b)(6) Each instrument with respect to long-term debt of Elan
Corporation, plc and its consolidated subsidiaries which
relates to debt that does not exceed 10% of the total
assets of Elan Corporation, plc and its subsidiaries on
a consolidated basis is omitted pursuant to paragraph
2(b)(i) of "Instructions as to Exhibits" of Form 20-F.
Elan Corporation, plc hereby agrees to furnish
supplementally to the Commission a copy of each such
instrument upon request.
4(a)(1) Antegren Development and Marketing Collaboration
Agreement, dated as of August 15, 2000, by and between
Biogen, Inc. and Elan Pharma International Limited
(confidential treatment requested as to certain portions
of this Exhibit, which portions have been omitted and
filed separately with the Commission).
4(a)(2) Asset Purchase Agreement, dated as of October 1, 2002,
by and among Elan Corporation, plc, Elan
Pharmaceuticals, Inc., Elan Operations, Inc., Elan
Canada, Inc. and Enzon, Inc.
4(a)(3) Amended and Restated Asset Purchase Agreement, dated as
of May 19, 2003, by and among Elan Corporation, plc,
Elan Pharma International Limited, Elan Pharmaceuticals,
Inc., King Pharmaceuticals, Inc., Jones Pharma
Incorporated and Monarch Pharmaceuticals, Inc.
4(c)(1) Elan Corporation, plc 1999 Stock Option Plan (2001
Amendment) (incorporated by reference to Exhibit 4(c)(1)
of Elan Corporation, plc's Annual Report on Form 20-F
for the fiscal year ended December 31, 2001).
4(c)(2) Elan Corporation, plc 1998 Long-Term Incentive Plan
(2001 Restatement) (incorporated by reference to Exhibit
4(c)(2) of Elan Corporation, plc's Annual Report on Form
20-F for the fiscal year ended December 31, 2001).
4(c)(3) Elan Corporation, plc 1996 Long-Term Incentive Plan
(2001 Restatement) (incorporated by reference to Exhibit
4(c)(3) of Elan Corporation, plc's Annual Report on Form
20-F for the fiscal year ended December 31, 2001).
4(c)(4) Elan Corporation, plc 1996 Consultant Option Plan (2001
Restatement) (incorporated by reference to Exhibit
4(c)(4) of Elan Corporation, plc's Annual Report on Form
20-F for the fiscal
11
year ended December 31, 2001).
4(c)(5) Consulting Agreement, dated as of July 1, 1986, between
Dr. Dennis J. Selkoe and Athena Neurosciences, Inc.
4(c)(6) Letter Agreement, dated as of February 12, 2002, between
John Groom and Elan Corporation, plc (incorporated by
reference to Exhibit 10.1 of the Registration Statement
on Form F-3 of Elan Corporation, plc, Registration
Statement No. 333-100252, filed with the Commission on
October 1, 2002).
4(c)(7) Consulting Agreement, dated as of April 1, 2002, between
Dr. Dennis J. Selkoe and Elan Pharmaceuticals, Inc.
4(c)(8) Letter Agreement, dated as of July 9, 2002, between Elan
Corporation, plc and Donal J. Geaney (incorporated by
reference to Exhibit 10.2 of the Registration Statement
on Form F-3 of Elan Corporation, plc, Registration
Statement No. 333-100252, filed with the Commission on
October 1, 2002).
4(c)(9) Letter Agreement, dated as of July 9, 2002, between Elan
Corporation, plc and Thomas G. Lynch (incorporated by
reference to Exhibit 10.3 of the Registration Statement
on Form F-3 of Elan Corporation, plc, Registration
Statement No. 333-100252, filed with the Commission on
October 1, 2002).
4(c)(10) Employment Agreement, dated as of January 7, 2003, among
Elan Pharmaceuticals, Inc., Elan Corporation, plc and G.
Kelly Martin (incorporated by reference to the Report of
Foreign Issuer on Form 6-K, filed with the Commission on
February 4, 2003).
8.1 Subsidiaries of Elan Corporation, plc.
10.1 Auditors' Report of KPMG, Chartered Accountants.
10.2 Consent of KPMG, Chartered Accountants.
10.3 Auditors' Report of Deloitte & Touche LLP.
10.4 Consent of Deloitte & Touche LLP.
10.5 Pursuant to Rule 12b-23(a) of the Securities Exchange
Act of 1934, as amended, the
12
information incorporated into this Annual Report on Form
20-F by reference to the "Elan Corporation, plc 2002
Annual Report and Form 20-F", filed as an exhibit to its
Report of Foreign Issuer on Form 6-K dated September 4,
2003, is attached as an exhibit hereto.
12(a)(1) Certification of Shane Cooke pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
12(a)(2) Certification of Kelly Martin pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
13
SIGNATURES
The Registrant hereby certifies that it meets all of the requirements for
filing on Form 20-F and that it has duly caused and authorized the undersigned
to sign this annual report on its behalf.
ELAN CORPORATION, PLC
/s/ Shane Cooke
-----------------------------------
Shane Cooke Chief
Financial Officer and Executive
Vice President
September 4, 2003
14
CERTIFICATION
I, Shane Cooke, certify that:
1. I have reviewed this annual report on Form 20-F of Elan Corporation, plc
("the registrant");
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this annual
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this annual report is being
prepared;
b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of this
annual report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officer and I have disclosed, based on our
most recent evaluation, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officer and I have indicated in this annual
report whether or not there were significant changes in internal controls or in
other factors that could significantly affect internal controls subsequent to
the date of our most recent
15
evaluation, including any corrective actions with regard to significant
deficiencies and material weaknesses.
Date: September 4, 2003
/s/ Shane Cooke
----------------------------------------
Shane Cooke
Executive Vice President and Chief
Financial Officer
16
CERTIFICATION
I, Kelly Martin, certify that:
1. I have reviewed this annual report on Form 20-F of Elan Corporation, plc
("the registrant");
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this annual
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this annual report is being
prepared;
b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of this
annual report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officer and I have disclosed, based on our
most recent evaluation, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officer and I have indicated in this annual
report whether or not there were significant changes in internal controls or in
other factors that could significantly affect internal controls subsequent to
the date of our most recent evaluation, including any corrective actions with
regard to significant deficiencies and material weaknesses.
17
Date: September 4, 2003
/s/ Kelly Martin
--------------------------------------
Kelly Martin
President and Chief Executive Officer
18
EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
------ -----------
1.1 Memorandum and Articles of Association of Elan
Corporation, plc (as amended by all Special Resolutions
up to and including August 19, 2002) (incorporated by
reference to Exhibit 4.1 of the Registration Statement
on Form F-3 of Elan Corporation, plc, Registration
Statement No. 333-100252, filed with the Commission on
October 1, 2002).
2(b)(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 Commission
on August 27, 1999).
2(b)(2) Form of Liquid Yield Option(TM) Note (incorporated by
reference to Exhibit 4.1 of the Registration Statement
on Form F-3 of Elan Finance Corporation, Ltd. and Elan
Corporation, plc, Registration No. 333-10726, filed with
the Commission on August 27, 1999).
2(b)(3) Indenture, dated as of February 21, 2001, among Athena
Neurosciences Finance, LLC, as Issuer, Elan Corporation,
plc, as Guarantor, and The Bank of New York, as Trustee
(incorporated by reference to Exhibit 4.11 of the Report
of Foreign Issuer on Form 6-K of Elan Corporation, plc
filed with the Commission on February 21, 2001).
2(b)(4) First Supplemental Indenture, dated as of February 21,
2001, among Athena Neurosciences Finance, LLC, as
Issuer, Elan Corporation, plc, as Guarantor, and The
Bank of New York, as Trustee (incorporated by reference
to Exhibit 4.12 of the Report of Foreign Issuer on Form
6-K of Elan Corporation, plc filed with the Commission
on February 21, 2001).
2(b)(5) Form of Senior Note (incorporated by reference to
Exhibit 4.13 of the Report of Foreign Issuer on Form 6-K
of Elan Corporation, plc filed with the Commission on
February 21, 2001).
2(b)(6) Each instrument with respect to long-term debt of Elan
Corporation, plc and its consolidated subsidiaries which
relates to debt that does not exceed 10% of the total
assets of Elan Corporation, plc and its subsidiaries on
a consolidated basis is omitted
19
EXHIBIT
NUMBER DESCRIPTION
------ -----------
pursuant to paragraph 2(b)(i) of "Instructions as to
Exhibits" of Form 20-F. Elan Corporation, plc hereby
agrees to furnish supplementally to the Commission a
copy of each such instrument upon request.
4(a)(1) Antegren Development and Marketing Collaboration
Agreement, dated as of August 15, 2000, by and between
Biogen, Inc. and Elan Pharma International Limited
(confidential treatment requested as to certain portions
of this Exhibit, which portions have been omitted and
filed separately with the Commission).
4(a)(2) Asset Purchase Agreement, dated as of October 1, 2002,
by and among Elan Corporation, plc, Elan
Pharmaceuticals, Inc., Elan Operations, Inc., Elan
Canada, Inc. and Enzon, Inc.
4(a)(3) Amended and Restated Asset Purchase Agreement, dated as
of May 19, 2003, by and among Elan Corporation, plc,
Elan Pharma International Limited, Elan Pharmaceuticals,
Inc., King Pharmaceuticals, Inc., Jones Pharma
Incorporated and Monarch Pharmaceuticals, Inc.
4(c)(1) Elan Corporation, plc 1999 Stock Option Plan (2001
Amendment) (incorporated by reference to Exhibit 4(c)(1)
of Elan Corporation, plc's Annual Report on Form 20-F
for the fiscal year ended December 31, 2001).
4(c)(2) Elan Corporation, plc 1998 Long-Term Incentive Plan
(2001 Restatement) (incorporated by reference to Exhibit
4(c)(2) of Elan Corporation, plc's Annual Report on Form
20-F for the fiscal year ended December 31, 2001).
4(c)(3) Elan Corporation, plc 1996 Long-Term Incentive Plan
(2001 Restatement) (incorporated by reference to Exhibit
4(c)(3) of Elan Corporation, plc's Annual Report on Form
20-F for the fiscal year ended December 31, 2001).
4(c)(4) Elan Corporation, plc 1996 Consultant Option Plan (2001
Restatement) (incorporated by reference to Exhibit
4(c)(4) of Elan Corporation, plc's Annual Report on Form
20-F for the fiscal year ended December 31, 2001).
4(c)(5) Consulting Agreement, dated as of July 1, 1986, between
Dr. Dennis J. Selkoe and Athena Neurosciences, Inc.
20
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4(c)(6) Letter Agreement, dated as of February 12, 2002, between
John Groom and Elan Corporation, plc (incorporated by
reference to Exhibit 10.1 of the Registration Statement
on Form F-3 of Elan Corporation, plc, Registration
Statement No. 333-100252, filed with the Commission on
October 1, 2002).
4(c)(7) Consulting Agreement, dated as of April 1, 2002, between
Dr. Dennis J. Selkoe and Elan Pharmaceuticals, Inc.
4(c)(8) Letter Agreement, dated as of July 9, 2002, between Elan
Corporation, plc and Donal J. Geaney (incorporated by
reference to Exhibit 10.2 of the Registration Statement
on Form F-3 of Elan Corporation, plc, Registration
Statement No. 333-100252, filed with the Commission on
October 1, 2002).
4(c)(9) Letter Agreement, dated as of July 9, 2002, between Elan
Corporation, plc and Thomas G. Lynch (incorporated by
reference to Exhibit 10.3 of the Registration Statement
on Form F-3 of Elan Corporation, plc, Registration
Statement No. 333-100252, filed with the Commission on
October 1, 2002).
4(c)(10) Employment Agreement, dated as of January 7, 2003, among
Elan Pharmaceuticals, Inc., Elan Corporation, plc and G.
Kelly Martin (incorporated by reference to the Report of
Foreign Issuer on Form 6-K filed with the Commission on
February 4, 2003).
8.1 Subsidiaries of Elan Corporation, plc.
10.1 Auditors' Report of KPMG, Chartered Accountants.
10.2 Consent of KPMG, Chartered Accountants.
10.3 Auditors' Report of Deloitte & Touche LLP.
10.4 Consent of Deloitte & Touche LLP.
10.5 Pursuant to Rule 12b-23(a) of the Securities Exchange
Act of 1934, as amended, the information incorporated
into this Annual Report on Form 20-F by reference to the
"Elan Corporation, plc 2002 Annual Report and Form
20-F", filed as an exhibit to its Report of Foreign
Issuer on Form 6-K dated September 4, 2003, is attached
as an exhibit hereto.
21
EXHIBIT
NUMBER DESCRIPTION
------ -----------
12(a)(1) Certification of Shane Cooke pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
12(a)(2) Certification of Kelly Martin pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
22