ASSIGNMENT AND NOVATION AGREEMENT
THIS
ASSIGNMENT AND NOVATION AGREEMENT (this "Agreement") is made as of April 16,
2008 by and among Shire Limited (“NewShire”), a
public
company limited by shares incorporated under the laws of Jersey, Shire plc
("OldShire"), a
public
limited company incorporated under the laws of England and Wales, and JPMorgan
Chase Bank, N.A., (the "Depositary").
WHEREAS,
OldShire has entered into a Deposit Agreement dated as of November 21, 2005
(the
"Deposit Agreement") with the Depositary and all holders from time to time
of
American Depositary Receipts issued thereunder;
WHEREAS,
OldShire will undergo a scheme of arrangement (the "Scheme of Arrangement")
pursuant to which a new listed holding company of OldShire, NewShire, will
be
put in place through a court approved scheme of arrangement under sections
895
to 899 of the Companies Xxx 0000;
WHEREAS,
in connection with the Scheme of Arrangement, American Depositary Shares
(“ADSs”) of OldShire issued under the Deposit Agreement will become ADSs of
NewShire without any action required on the part of the holders
thereof;
WHEREAS,
in connection with the Scheme of Arrangement, OldShire desires to transfer
and
assign to NewShire its rights, duties and obligations under the Deposit
Agreement and to cause the Deposit Agreement to be novated in favor of
NewShire;
WHEREAS,
NewShire agrees that the Deposit Agreement shall be novated in its favor and
is
willing to acquire the rights and assume the duties and obligations of OldShire
under the Deposit Agreement on the terms and conditions set forth herein;
and
WHEREAS,
the Depositary agrees to the novation of the Deposit Agreement in favor of
NewShire on the terms and conditions set forth herein;
NOW
THEREFORE, in consideration of the mutual covenants herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties agree as follows:
1. OldShire
hereby assigns, transfers and conveys to NewShire, effective immediately prior
to the time at which the Scheme of Arrangement becomes effective in accordance
with its terms (the "Effective Time"), all of OldShire's rights, duties and
obligations under the Deposit Agreement and the Depositary consents to such
assignment, transfer and conveyance.
2. NewShire
hereby accepts such assignment and covenants and agrees with OldShire and the
Depositary that it will, from and including the Effective Time:
(i)
perform and discharge all of OldShire’s duties and obligations under the Deposit
Agreement and otherwise observe and perform all of the provisions of the Deposit
Agreement binding on OldShire; and
(ii)
be
liable to the Depositary for any breach, non-observance or non-performance
by
NewShire or OldShire of their respective obligations under the Deposit Agreement
whether occurring on, prior to, or following the Effective Time;
in
each
case as if NewShire had been a party to the Deposit Agreement in place of
OldShire from the date on which the Deposit Agreement was entered into and
the
Depositary accepts the performance and liability of NewShire in place of
OldShire.
3. With
effect from and including the Effective Time, OldShire shall:
(i)
be
released from the further performance of its duties and obligations under the
Deposit Agreement; and
(ii)
cease to have any rights under the Deposit Agreement, including without
limitation any rights to indemnification or in respect of any breach,
non-observance or non-performance by the Depositary of its obligations under
the
Deposit Agreement, whether past, present or future.
4. OldShire,
NewShire and the Depositary hereby agree that this Agreement shall constitute
a
novation of the rights and obligations of OldShire under the Deposit Agreement
and, accordingly, with effect from and including the Effective Time all of
the
rights, duties and obligations of OldShire under the Deposit Agreement are
hereby assumed by NewShire and the Depositary shall perform its obligations
under the Deposit Agreement and be bound by its terms in every way as if
NewShire had at all times been a party to the Deposit Agreement.
5. Each
of
OldShire, NewShire and the Depositary represents and warrants to each other
party that:
(i)
it
has full power, authority and legal right to enter into and perform this
Agreement;
(ii)
it
has taken all necessary legal and corporate action to authorize the execution
and performance of this Agreement; and
(iii)
this Agreement constitutes a legal, valid and binding obligation of such
party.
6. Each
of
NewShire and the Depositary agree that in the Deposit Agreement (i) the terms
"deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel"
are
meant to also refer to entries or electronic transfers in the direct
registration system (which is the system for the uncertificated registration
of
ownership of securities established by The Depository Trust Company and utilized
by the Depositary pursuant to which the Depositary may record the ownership
of
ADRs without the issuance of a certificate, which ownership shall be evidenced
by periodic statements issued by the Depositary to the holders entitled
thereto), (ii) "ADRs" as such term is defined in the Deposit Agreement, may
either be in physical certificated form or in book-entry form through such
direct registration system and (iii) references in the Deposit Agreement to
such
ADRs shall include certificated ADRs as well as those issued through the direct
registration system, unless the context otherwise requires.
2
7. OldShire
and NewShire hereby instruct the Depositary that, in relation to dividends
on
Deposited Securities (as defined in the Deposit Agreement), to the extent that
holders of Shares of NewShire are permitted to elect to receive dividends from
OldShire (a company resident for tax purposes in the United Kingdom) or from
Shire Limited (a company resident for tax purposes in the Republic of Ireland),
the Depositary shall elect to receive all such dividends from OldShire and
shall
be entitled to any and all protections afforded to the Depositary under the
Deposit Agreement in connection with abiding by such instructions. The
Depositary agrees to abide by such instruction.
8. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns.
9. The
parties hereto agree that they will take all actions reasonably necessary to
carry out the matters contemplated by this Agreement.
10. This
Agreement constitutes the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes any and all
prior agreements and understandings, oral or written, relating to the subject
matter hereof.
11. No
amendment, modification or waiver of any provision of this Agreement, nor
consent to any departure therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the parties hereto, and then such
amendment, modification or waiver shall be effective only in the specific
instance and for the specific purpose for which given. No failure or delay
by
any party in exercising any right, power or privilege hereunder shall operate
as
a waiver thereof nor shall any single or partial exercise thereof preclude
any
other or further exercise thereof or the exercise of any other right, power
or
privilege.
12. If
any
term or provision of this Agreement should be declared invalid by a court of
competent jurisdiction, the remaining terms and provisions of this Agreement
shall be unimpaired and the invalid term or provision shall be replaced by
such
valid term or provision as comes closest to the intention underlying the invalid
term or provision.
13. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to its conflict of laws
principles.
14. This
Agreement may be executed in several counterparts each of which will be deemed
to be an original and together will constitute one and the same
agreement.
3
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
SHIRE
LIMITED
By:
/s/Tatjana
May
Name:
Tatjana May
Title:
Company Secretary and General Counsel
By:
/s/Tatjana
May
Name:
Tatjana May
Title:
Company Secretary and General Counsel
JPMORGAN
CHASE BANK, N.A.
By:
/s/Xxxxxxx
X.
XxxXxxx
Name:
Xxxxxxx X. XxxXxxx
Title:
Vice President
4
