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Exhibit 4(a)(5)




	 	 	 
	JANSSEN PHARMACEUTICAL
	 	JANSSEN ALZHEIMER 

IMMUNOTHERAPY
	State Road 933 KM 0.1
	 	(F/K/A JUNO NEUROSCIENCES)
	Mamey Ward
	 	Little Island Industrial Estate, Little Island
	Gurabo, Puerto Rico 00778
	 	County Cork, Ireland






September 14, 2009




Elan Corporation, plc

     Treasury Building

      Lower Grand Canal Street

      Dublin 2, Ireland




Athena Neurosciences, Inc.

Crimagua Limited

Elan Pharmaceuticals, Inc.

Elan Pharma International Limited

      c/o Elan Corporation, plc

      Treasury Building

      Lower Grand Canal Street

      Dublin 2, Ireland




Keavy Finance plc (f/k/a Keavy Holdings plc)

      c/o Suite 211, Fitzwilliam Business Centre

      77 Sir John Rogerson’s Quay

      Dublin 2, Ireland




Letter Agreement




          Reference is made to (i) the Asset Purchase Agreement dated as of July 2, 2009 (the “Asset
Purchase Agreement”), among Janssen Pharmaceutical, an Irish Unlimited Company (“Jupiter
Parent”), Janssen Alzheimer Immunotherapy (f/k/a Juno Neurosciences), an Irish Unlimited
Company, Elan Corporation, plc, an Irish Public Limited Company (“Lucky Parent”), Athena
Neurosciences, Inc., a Delaware corporation, Crimagua Limited, an Irish Limited Company, and Elan
Pharmaceuticals, Inc., a Delaware corporation, (ii) the Strategic Financing and Collaboration
Agreement dated as of July 2, 2009 (the “Strategic Financing Agreement”), between Elan
Pharma International Limited, an Irish private limited company (“EPIL”), and Jupiter
Parent, (iii) the Subscription and Transfer Agreement dated as of July 2, 2009 (the
“Subscription Agreement”), among Lucky Parent, Keavy Finance plc (f/k/a Keavy Holdings
plc), an Irish Public Limited Company, and Jupiter Parent and (iv) the legal proceedings involving
EPIL and Biogen Idec Inc. (together with its affiliates and any of its direct or indirect
successors or assigns under the Existing Collaboration Agreement, “Biogen”) before the
Honorable Deborah A. Batts in the United States District Court for the Southern District of New
York (09-Civ-6928) (the “Litigation”). Except as provided otherwise in this letter
agreement, capitalized terms used but not defined in this letter agreement shall have the meanings
ascribed thereto in the Asset Purchase Agreement. For purposes hereof, “Existing Collaboration
Agreement” means that certain Antegren Development and Marketing Collaboration Agreement dated
as of August 15,





 









 








2000 (including that certain letter agreement dated as of June 20, 2003), between
EPIL and Biogen, as amended from time to time.




          Whereas, as a result of the Litigation the parties desire to provide for certain agreements
and arrangements in connection with the closing of the transactions contemplated by the Asset
Purchase Agreement and the Transaction Documents (together, the “Specified Documents”).




          Now, therefore, in consideration of the mutual promises and covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:





	1.	 	Modifications to Specified Documents.






	 	 	      The following modifications shall be made to the Specified Documents:






		 	     (a) the following definitions set forth in clause 1.1 of the Subscription Agreement shall
be, and hereby are, restated in their entirety as follows:






	 	 	      Elan Placing ADSs Subscription Amount means US$329,620,340.22;






	 	 	      Subscriber Subscription Amount means US$555,379,659.78;






	 	 	      Total Consideration means US$885,000,000.00;






		 	     (b) the Strategic Financing Agreement shall be, and hereby is, terminated in its entirety
and shall be of no force and effect (it being agreed that (i) neither the existence of the
Strategic Financing Agreement prior to the date hereof nor such termination shall, in and of
itself, give rise to the failure of a closing condition under the Asset Purchase Agreement or the
Subscription Agreement and (ii) the Strategic Financing Agreement (A) as of the date hereof has
not, and in the future shall not, become effective and (B) as of the date hereof does not, and in
the future shall not, have any force or effect);






		 	     (c) the references to “15 September 2009” in clause 2.7 of the Subscription Agreement and to
“September 15, 2009” in Section 7.01(a)(ii) of the Asset Purchase Agreement shall be, and hereby
are, each replaced with “21 September 2009” and “September 21, 2009”, respectively;






		 	     (d) clause 6.1 of the Subscription Agreement shall be, and hereby is, replaced in its
entirety with the following: “Completion will take place at 8:00am (Irish time) on September 17,
2009, provided that if the last of the Conditions (other than the Conditions that by their terms
are to be satisfied at Completion, but subject to the satisfaction or waiver of such Conditions
at Completion) shall not have been fulfilled (or waived) prior to such date and time, Completion
will take place at 8:00am (Irish time) on the first Business Day after the fulfilment (or waiver)
of the last of the Conditions (other than the Conditions that by their terms are to be satisfied
at Completion, but subject to the satisfaction or waiver of such Conditions at Completion) (or at
such other date and time as the parties may agree), in each case, at such place as Elan shall
reasonably direct.”;






		 	     (e) the following text shall be, and hereby is, added to the end of the clause (g) of
Section 5.1 of the Shareholders’ Agreement: “, except Indebtedness owing to the




 









 






	 	 	Company or a
Subsidiary of the Company; provided that no Person other than the Company or a Subsidiary of the
Company holds any interest in such Indebtedness”; and






		 	     (f) clause (i) of Section 5.1(j) of the Shareholders’ Agreement shall be, and hereby is,
replaced in its entirety with the following: “(i) transactions on terms and conditions that are
consistent in all material respects with the results that would have been realized if the Company
or such Subsidiary had engaged in such transaction under the same circumstances with an
unaffiliated third party (such determination to be made in good faith by the Company applying the
guidelines and methodologies of Affiliated entities of the Company),”.






	2.	 	Transaction Documents.






	 	 	      The parties hereto acknowledge and agree that this letter agreement shall be, and hereby is,
deemed to be a Transaction Document (as such term is defined in each of the Asset Purchase
Agreement and the Subscription Agreement) with the same effect as if identified as such in each
of the Asset Purchase Agreement and the Subscription Agreement, respectively. The parties hereto
further acknowledge and agree that the Strategic Financing Agreement shall no longer be deemed to
be a Transaction Document for purposes of the Asset Purchase Agreement, the Subscription
Agreement or any other Transaction Document; provided, however, that (i) the Strategic Financing
Agreement shall continue to be deemed to be a Transaction Document for purposes of determining
whether the existence of the Strategic Financing Agreement prior to the date hereof (including
the Strategic Financing Agreement being a Transaction Document prior to the date hereto) results
in or provides the basis for any Elan Warranty Claim (as defined in the Subscription Agreement)
or any rights on the part of Jupiter Parent or any indemnified person (as defined in Schedule 6
to the Subscription Agreement) pursuant to clause 8 of the Subscription Agreement arising out of,
or based upon, the existence of the Strategic Financing Agreement prior to the date hereof
(including the Strategic Financing Agreement being a Transaction Document prior to the date
hereof) and (ii) nothing in this letter agreement shall be deemed to constitute a waiver by
Jupiter Parent or any such indemnified person in respect of any breach or inaccuracy of any
representation or warranty set forth in any Transaction Document arising out of, or based upon,
the existence of the Strategic Financing Agreement prior to the date hereof (including the
Strategic Financing Agreement being a Transaction Document prior to the date hereof); provided,
further, however, that neither Jupiter Parent nor any other indemnified person shall have any
claim under any of the Specified Documents arising out of, or based upon, the failure of the
Strategic Financing Agreement to become effective or have any force or effect or the resulting
loss of any rights by Jupiter Parent or any of its Affiliates under the Strategic Financing
Agreement.






	3.	 	Miscellaneous.






	 	 	      Except as expressly set forth herein, this letter agreement shall not by implication or
otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in any of the Specified Documents, all of which are ratified
and affirmed in all respects and shall continue in full force and effect. For clarity, nothing
in this letter agreement shall reduce, by implication or otherwise, the number of Placing ADSs
(as defined in the Subscription Agreement) deliverable to Jupiter Parent under the Subscription
Agreement.






	 	 	      This letter agreement is for the sole benefit of the parties hereto and nothing herein
expressed or implied shall give or be deemed or construed to give to any other person any legal
or equitable rights whatsoever.




 









 












	 	 	      No party may assign or transfer this letter agreement or any of its rights and/or
obligations hereunder without the prior written consent of the other parties. Any attempted
assignment of this letter agreement in violation of the foregoing provisions shall be void and of
no force and effect.






	 	 	      This letter agreement may not be amended and no provision hereof may be waived or modified
except in each case by an instrument in writing signed by each of the parties. All notices and
communications hereunder shall be made in accordance with the notice provisions of the Asset
Purchase Agreement, the Strategic Financing Agreement or the Subscription Agreement, as
applicable. The provisions of Sections 5.05(b) (Confidentiality), 5.09 (Publicity), 9.04(a)
(Interpretation), 9.06 (Entire Agreement), 9.07 (Severability), 9.08 (Consent to Jurisdiction),
9.09 (Governing Law), 9.10 (Waiver of Jury Trial) and 9.11 (Enforcement in Equity and at Law) of
the Asset Purchase Agreement shall apply to this letter agreement, mutatis
mutandis, as though fully set forth herein. Notwithstanding the provisions of
Section 5.05(b) (Confidentiality) of the Asset Purchase Agreement being incorporated herein by
reference, an executed copy of this letter agreement may be provided to Biogen and/or any court
in connection with legal proceedings between Biogen and EPIL, in each case, on a confidential
basis.






	 	 	      For the avoidance of doubt, and notwithstanding the preceding paragraph of this letter
agreement, the provisions of each Transaction Document (as such term is defined in the Asset
Purchase Agreement and the Subscription Agreement) in relation to choice of jurisdiction and
governing law will continue to be of full force and effect for the purposes of any suits, actions
or other preceding arising out of such Transaction Document or arising out of any transaction
contemplated by such Transaction Document.






	 	 	      This letter agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which, when taken together, shall constitute one agreement.
Delivery of an executed counterpart of a signature page of this letter agreement by facsimile
transmission or other customary means of electronic transmission shall be effective as delivery
of a manually executed counterpart hereof.





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          If the foregoing correctly sets forth our understanding, please indicate your
acceptance of the terms hereof by returning to us an executed counterpart hereof, whereupon this
letter agreement shall become a binding agreement.




	 	 	 	 	 
	 	Very truly yours,





JANSSEN PHARMACEUTICAL

 	 
	 	    by  	/s/ Paul G. Wulfing
 	 
	 	 	Name:  	Paul G. Wulfing 	 
	 	 	Title:  	Director 	 
	 
	 	JANSSEN ALZHEIMER IMMUNOTHERAPY

 	 
	 	    by  	/s/ Gerard Collins
 	 
	 	 	Name:  	Gerard Collins 	 
	 	 	Title:  	Director 	 



 









 






Accepted and agreed to as of the date first written above:




	 	 	 	 
	ELAN CORPORATION, PLC

 	 
	    by  	/s/ Shane Cooke
 	 
	 	Name:  	Shane Cooke 	 
	 	Title:  	Director 	 
	 
	ATHENA NEUROSCIENCES, INC.

 	 
	    by  	/s/ John L. Donahue
 	 
	 	Name:  	John L. Donahue 	 
	 	Title:  	Assistant Secretary 	 
	 
	CRIMAGUA LIMITED

 	 
	    by  	/s/ Shane Cooke
 	 
	 	Name:  	Shane Cooke 	 
	 	Title:  	Director 	 
	 
	ELAN PHARMACEUTICALS, INC.

 	 
	    by  	/s/ John L. Donahue
 	 
	 	Name:  	John L. Donahue 	 
	 	Title:  	Assistant Secretary 	 
	 
	ELAN PHARMA INTERNATIONAL LIMITED

 	 
	    by  	/s/ Shane Cooke
 	 
	 	Name:  	Shane Cooke 	 
	 	Title:  	Director 	 
	 
	KEAVY FINANCE PLC

 	 
	    by  	/s/ Peter O’Leary
 	 
	 	Name:  	Peter O’Leary 	 
	 	Title:  	Director