Dated 2 May 2007
Exhibit
10.1
CONFORMED
COPY
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Dated
2
May 2007
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and
ABN
AMRO Bank N.V. and NM Rothschild & Sons Limited (trading
together
as
ABN
AMRO Rothschild, an unincorporated equity capital markets joint
venture)
and
Barclays
Bank PLC
and
Citigroup
Global Markets Limited
and
Xxxxxxx
Xxxxx International
and
Xxxxxx
Xxxxxxx & Co. International plc
and
Others
U.S.$1,000,000,000
2.75
per cent
Convertible Bonds due 2014
(subject
to an
increase by up to a further U.S.$100,000,000 pursuant
to the
exercise of
an
over-allotment option described herein)
convertible
into ordinary shares of Shire plc
|
|
Linklaters
|
Ref:
CJXW/AKG
|
Shire
plc
(the “Issuer”)
U.S.$1,000,000,000
2.75
per
cent Convertible Bonds due 2014
(subject
to
an increase by up to a further U.S.$100,000,000
pursuant
to
the
exercise
of an over-allotment option described herein)
To:
|
ABN
AMRO Bank
N.V. and NM Rothschild & Sons Limited (trading together as ABN AMRO
Rothschild, an unincorporated equity capital markets joint venture)
(“ABN AMRO Rothschild”);
Barclays
Bank
PLC (“Barclays”);
Citigroup
Global Markets Limited (“Citi”);
Xxxxxxx
Xxxxx
International (“Xxxxxxx Sachs
International”);
Xxxxxx
Xxxxxxx
& Co. International plc (“Xxxxxx Xxxxxxx” and
together with ABN AMRO Rothschild, Barclays, Citi and Xxxxxxx Xxxxx
International, the “Joint Lead Managers”);
Deutsche
Bank
AG and The Royal Bank of Scotland plc, (together with the Joint Lead
Managers, the “Managers”),
c/o
Goldman
Sachs International
Xxxxxxxxxxxx
Xxxxx
000
Xxxxx
Xxxxxx
Xxxxxx
XX0X
0XX
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2
May
2007
|
Dear
Sirs
Shire
plc (the
“Issuer”) proposes, on and subject to the terms and conditions
stated herein, to issue to the Managers an aggregate of U.S.$1,000,000,000 in
principal amount of 2.75 per cent Convertible Bonds due 2014 (the
“Firm Securities”) convertible into fully paid ordinary shares
of par value £0.05 each (the “Shares”) of the Issuer and to
grant the Joint Lead Managers an option as described in Clause 1.2 to subscribe
up to a further U.S.$100,000,000 of
such Convertible Bonds due 2014 solely
to
cover over-allotments (the “Optional Securities”, the Firm
Securities and any Optional Securities to be issued, being together referred
to
herein as the “Securities”, which expression shall, unless the
context otherwise requires, include the temporary and permanent global
securities referred to in Clause 5.2). The Securities are to be constituted
by,
and will have the benefit of, a trust deed (the “Trust Deed”)
between the Issuer and BNY Corporate
Trustee
Services Limited (the “Trustee”), expected to be dated
9
May
2007.
The
issued Shares
are listed on the official list (the “Official List”) of the
Financial Services Authority in its capacity as competent authority (the
“UK Listing Authority”) under the Financial Services and
Markets Xxx 0000 (“FSMA”) and admitted to trading on the EEA
Regulated Market (the “Regulated Market”) of the London Stock
Exchange plc (the “London Stock Exchange”) and the Shares to be
issued upon conversion of the Securities will be listed on the Official List
and
admitted to trading on the Regulated Market.
-1-
The
Jersey
Preference Shares (as defined in Clause 1.1 below) will be subscribed by the
Managers pursuant to the terms of a share subscription agreement in the agreed
form expected to be dated the date hereof (the “Share Subscription
Agreement”).
This
Agreement, the
Trust Deed, the Agency Agreement (as referred to below) and the Share
Subscription Agreement are together referred to herein as the
“Contracts”.
1
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Subscription
of the Securities
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1.1
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Issue
and Purchase of Securities: On the terms and subject to the
conditions of this Agreement, the Issuer agrees to issue the Firm
Securities to the Managers and, to the extent of the exercise of
the
Over-allotment Option (as defined in Clause 1.2), the Optional Securities
to the Joint Lead Managers and in each case to procure that the Securities
will be validly issued in a form complying with the requirements
of the
Trust Deed. The Managers, in respect of the Firm Securities, and
the Joint
Lead Managers, in respect of the Optional Securities, severally,
but not
jointly, agree to:
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1.1.1
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procure
subscribers for, failing which to subscribe, the Firm Securities,
in the
respective amounts set out opposite their names in Part A of Schedule
1
hereto;
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1.1.2
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procure
subscribers for, failing which to subscribe, the Optional Securities,
to
the extent of the exercise of the Over-allotment Option, in the respective
amounts set out opposite their names in Part B of Schedule 1
hereto;
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1.1.3
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satisfy
the
consideration for the Firm Securities at a price equal to 100 per
cent. of
their principal amount (the “Issue Price”) on 9 May 2007,
or such later date as the Issuer and the Joint Lead Managers on behalf
of
the Managers may agree (the “Closing Date”) in the manner
provided below; and
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1.1.4
|
satisfy
the
consideration for any Optional Securities at the Issue Price on the
Closing Date in the manner provided
below.
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The
consideration
for the issue of the Firm Securities to each of the Managers as aforesaid will
be the delivery by each such Manager to the Issuer (or as the Issuer may direct)
of the number of fully paid fixed rate no par value redeemable preference shares
(the “Jersey Preference Shares”) in the capital of Shire Jersey
Limited (“Jersey Co”) set out opposite its name in Part A of
Schedule 1 hereto. The consideration for the issue of any Optional Securities
to
the Joint Lead Managers will be the delivery by each such Joint Lead Manager
of
the number of Jersey Preference Shares as is determined in accordance with
Part
B of Schedule 1 hereto. Delivery of Jersey Preference Shares shall be made
by
delivery of an executed instrument of transfer in respect thereof (together
with
any certificate or certificates issued in respect thereof) to the Issuer (or
as
the Issuer may direct).
1.2
|
Over-allotment
Option: On the terms and subject to the conditions of this
Agreement, the Issuer hereby grants to the Joint Lead Managers an
option
to subscribe all or any of the U.S.$100,000,000
principal amount of the Optional Securities (the “Over-allotment
Option”) solely to cover over-allotments. Such Over-allotment
Option shall be exercisable at any time on or
prior
to
7
May 2007
upon the giving of written notice substantially in the form
set out
in Schedule 2 to this Agreement (the “Option Notice”) to
the Issuer by Xxxxxxx Xxxxx International on behalf of the Joint
Lead
Managers. Such Option Notice shall be irrevocable and set forth the
aggregate principal amount of the Optional Securities as to which
the
option is being exercised. The Issuer agrees to issue and the Joint
Lead
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-2-
Managers severally, but not jointly, agree to subscribe, or procure subscribers for, and satisfy the consideration for the Optional Securities in the manner described in Clause 1.1 above on the Closing Date. |
1.3
|
The
Securities: The Issuer will, not later than the Closing Date,
enter into (and provide the Joint Lead Managers on behalf of the
Managers
with a copy of) (1) the Trust Deed and (2) a paying and conversion
agency
agreement (the “Agency Agreement”) with The Bank of New
York, the Trustee and the other agents referred to in
it.
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1.4
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Conditions:
The terms and conditions of the Securities (the
“Conditions”) will be in the agreed form with such
amendments (if any) as may be agreed in writing between the Issuer
and the
Joint Lead Managers on behalf of the
Managers.
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1.5
|
Agreement
Among Managers: By signing this Agreement, the Managers agree to
be bound inter se by the terms of the International Capital Market
Association Agreement Among Managers (Version 2) save that
the sole
stabilising manager shall be Xxxxxxx Sachs
International.
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2
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Listing
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The
Issuer confirms
that it has caused to be made applications for the Securities to be admitted
to
the Official List and to be admitted to trading on the London Stock Exchange
plc’s Professional Securities Market (the “PSM”). In connection
with such applications the Issuer agrees:
2.1
|
to
furnish
from time to time any and all documents, instruments, information
and
undertakings and publish all advertisements or other material that
may be
necessary in order to effect both such admissions;
and
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2.2
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to
use its
best endeavours to maintain both such admissions so long as any of
the
Securities are outstanding (as defined in the Trust Deed) provided
that if
at any time the Issuer shall determine that it can no longer reasonably
comply with the requirements for such admissions of the Securities
and if
maintenance of such admissions becomes impracticable or unduly onerous,
it
will use its best endeavours to obtain and thereafter to maintain
a
listing, trading and/or quotation of the Securities on such other
major
stock exchange, listing authority, and/or quotation system in a leading
financial centre as the Joint Lead Managers may reasonably request
and as
the Trustee may approve.
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3
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Distribution
and Announcements
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3.1
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Offering
Circular: The Issuer undertakes to prepare an offering circular
to be dated no later than 3 May 2007 in substantially the same form
as the
draft offering circular in the agreed form (the “Draft Offering
Circular”) save for such changes as may be agreed between the
Issuer and the Joint Lead Managers or which may be required by the
UK
Listing Authority or otherwise to comply with applicable law or regulation
(the “Offering Circular”). The Issuer authorises the
Managers to distribute copies of the Offering Circular in connection
with
the offering and sale of the Securities (the “Offering”),
subject to, and in accordance with, the terms of Clause
10.
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3.2
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Publicity:
The Issuer confirms the arrangements made on its behalf by the Joint
Lead
Managers for announcements in respect of the Securities to be published
on
such dates
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-3-
and in such newspapers or other publications as it may agree with the Joint Lead Managers. |
4
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Commission
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4.1
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Amount
of Commission: In consideration for the services provided by the
Managers in respect of the issue of the Securities and the Offering,
the
Issuer shall pay (a) on the Closing Date, a combined management and
underwriting commission of 1.0 per cent. of the aggregate principal
amount
of the Securities issued on such date (the “Commission”)
payable to the Managers in proportion to their respective underwriting
commitments, and (b) not later than 35 days after the Closing Date,
a
performance-related fee for further management, underwriting and
sales
services in respect of the issue of the Securities (the
“Discretionary Fee”) of up to 0.5 per
cent. of the aggregate principal amount of the Securities, payable
at the
discretion of the Issuer to the Joint Lead Managers only (or any
of
them).
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4.2
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Payment
of Commission: The Issuer shall pay the amount of the Commission
referred to in Clause 4.1 on the Closing Date in U.S. dollars in
immediately available funds to such account as shall be notified
by the
Joint Lead Managers to the Issuer.
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4.3
|
Determination
of Discretionary Fee: The Issuer shall determine not more than 35
days after the Closing Date whether, and the extent to which, the
Discretionary Fee referred to in Clause 4.1(b) is payable and shall
give
notice to the Joint Lead Managers of such determination. Upon such
determination, the Issuer shall pay the relevant amount (if any)
in U.S.
dollars in immediately available funds to such account as shall be
notified by the Joint Lead Managers to the
Issuer.
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5
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Closing
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5.1
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Subject
as
provided herein, including Clause 9, completion of the transactions
contemplated by Clauses 5.2 and 5.3 shall take place by fax at or
before
15.00 (London time) on the
Closing
Date.
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5.2
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On
the Closing
Date, the Issuer will issue the Firm Securities, and to the extent
of the
exercise of the Option, the Optional Securities, and deliver to,
or to the
order of, the Managers the temporary global bond (exchangeable in
accordance with its terms for a permanent global bond) representing
the
Securities (the “Global Security”), duly executed and
authenticated, in or substantially in the form set out in the Trust
Deed
to be held by or to the order of a common depositary (the “Common
Depositary”) to Euroclear Bank S.A./N.V.
(“Euroclear”) and to Clearstream Banking, société
anonyme
(“Clearstream,
Luxembourg”).
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5.3
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Against
the
delivery of the Global Security, the Joint Lead Managers shall,
severally and not jointly, on behalf of the Managers cause the relevant
Jersey Preference Shares which are deliverable in respect of the
Firm
Securities, and, as the case may be the Optional Securities, to be
so
delivered in accordance with Clause
1.1.
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5.4
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The
Closing
Date may be postponed to such other business day as the Joint Lead
Managers on behalf of the Managers may agree with the Issuer, whereupon
all references herein to the Closing Date shall be construed as being
to
that later date.
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-4-
5.5
|
The
term
“business day” as used in this Clause 5 shall mean any
day (other than a Saturday or Sunday) on which commercial banks are
open
for business in London, New York, Brussels and
Luxembourg.
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6
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Stabilisation
and Over-allotment
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6.1
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In
connection
with the issue of the Securities, Xxxxxxx Xxxxx International or
any agent
of Xxxxxxx Sachs International (the “Stabilising
Manager”) may, to the extent permitted by applicable laws and
directions, over-allot or effect transactions with a view to supporting
the market price of the Securities and/or the Shares at a level other
than
that which might otherwise prevail, but in so doing the Stabilising
Manager shall act as principal and not as agent of the Issuer. The
Stabilising Manager is, however, not obliged to do this. Such stabilising,
if commenced, may be discontinued at any time and must be brought
to an
end after a limited period. Such stabilising shall be conducted in
accordance with all applicable laws and rules. Any loss or profit
sustained as a consequence of any such over-allotment or stabilising
shall
be for the account of the Joint Lead Managers as agreed between them
in an
agreement among Managers which is expected to be dated the date hereof.
Any such loss or profit will not be for the account of Deutsche Bank
AG or
The Royal Bank of Scotland plc. The Managers acknowledge that the
Issuer
has not authorised the creation and issue of Securities, in excess
of
U.S.$1,000,000,000
in aggregate principal amount of the Firm Securities and more than
U.S.$100,000,000
in aggregate principal amount of Optional
Securities.
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6.2
|
Each
Manager
severally represents, warrants and agrees that, prior to being notified
by
the Joint Lead Managers that the Securities are free to trade, it
has not
offered or sold and will not offer or sell (directly or indirectly
through
its Subsidiaries or affiliates as each is defined in the Terms and
Conditions of the Securities) any Securities at a price other than
the
Issue Price.
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7
|
Representations
and Warranties of the
Issuer
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As
a condition of
the agreement by the Managers to procure subscribers for, failing which to
subscribe the Securities and in consideration thereof, the Issuer represents
and
warrants and undertakes to the Managers and each of them that:
7.1
|
Incorporation:
the Issuer is duly incorporated and validly existing under the laws
of
England, with full power and authority to own its assets and conduct
its
business as presently owned and/or so conducted, and it is lawfully
qualified to do business in those jurisdictions in which business
is
conducted by it. Each subsidiary of the Issuer is duly incorporated
and
validly existing under the laws of its jurisdiction of incorporation,
with
full power and authority to conduct its business and own its assets
as
presently owned and/or so conducted, and is lawfully qualified to
do
business in those jurisdictions in which business is conducted by
it, save
in each case as would not be material in the context of the issue
of the
Securities or the Offering.
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7.2
|
Authorisation:
the creation of the Securities, their Offering as contemplated by
this
Agreement, the execution, authentication (where appropriate) and
issue or
delivery by the Issuer of this Agreement, the Trust Deed, the Agency
Agreement, the Share Subscription Agreement, the Securities and the
coupons appertaining thereto (the “Coupons”) and the
performance of the obligations to be assumed thereunder by the Issuer
have
been duly
|
-5-
authorised by all corporate or other action required by the Issuer and the laws of England or otherwise. |
7.3
|
Compliance:
the creation of the Securities and their Offering on the terms and
conditions set out in this Agreement and the issue, execution,
authentication (where appropriate) and delivery of, and the compliance
by
the Issuer with the terms of, the Securities, the Coupons, this Agreement,
the Share Subscription Agreement, the Trust Deed and the Agency
Agreement:
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7.3.1
|
do
not, and as
of their date will not, conflict with, or result in a breach of,
any of
the terms or provisions of, or constitute a default under, the Memorandum
and Articles of Association of the Issuer or any existing law, rule
or
regulation applying to or affecting the Issuer, any of its Subsidiaries
or
any of its or their property or any judgment, order or decree of
any
government, governmental body or court having jurisdiction over the
same;
and
|
7.3.2
|
do
not, and as
of their date will not, infringe the terms of, or constitute a default
under, any trust deed, agreement or other instrument or
obligation to which the Issuer or any of its Subsidiaries is a party
or by
which the Issuer or any of its Subsidiaries or any part of its or
their
undertaking, assets, property or revenues is
bound,
|
save
in each case as
would not be material in the context of the issue of the Securities or the
Offering.
7.4
|
Validity:
this Agreement and the Share Subscription Agreement constitute, and
the
Trust Deed, the Agency Agreement, the Securities and the Coupons
when
executed, authenticated (where appropriate) and delivered as herein
contemplated, whether in facsimile or otherwise, will constitute,
valid,
legally binding and (save for laws of general application relating
to
creditors’ rights) enforceable obligations of the Issuer, and the claims
of the holders of the Securities will rank pari passu with the
claims of all other unsecured and unsubordinated creditors of the
Issuer.
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7.5
|
Event
of Default: there exists no Event of Default (as defined in
Condition 9 of the Conditions) and no condition, event or act which
with
the giving of notice and/or the lapse of time and/or the satisfaction
of
any other condition would (if the Securities were in issue at the
date
hereof) constitute an Event of Default and the Issuer is not in breach
or
default under any agreement or deed or other instrument to which
it is a
party or which is binding on it or any of its assets to an extent
or in a
manner which is material in the context of the
Securities.
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7.6
|
Capitalisation
|
7.6.1
|
the
Issuer has
a duly authorised and issued share capital as per the descriptions
thereof
contained in the Draft Offering
Circular;
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7.6.2
|
none
of the
Shares to be issued or delivered on conversion of the Securities
will be
issued or delivered in violation of the pre-emptive rights of any
holder
of Shares;
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7.6.3
|
the
Issuer has
available for issue and authority to allot sufficient authorised
but
unissued Shares to enable the conversion rights attaching to the
Securities, and all other rights of subscription and exchange for
and
conversion into Shares to be satisfied at the current conversion
prices,
exchange prices, subscription prices or exercise
prices;
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-6-
7.6.4
|
the
Issuer
will use its reasonable endeavours to ensure that the Shares to be
issued
and/or delivered upon conversion of the Securities, will be fully-paid
and
will be listed on the Official List and admitted to trading on the
Regulated Market;
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7.6.5
|
the
Shares to
be issued and/or delivered upon conversion of the Securities will
rank as
provided in condition 5(i) and the Shares will conform to the
respective descriptions thereof contained in the Draft Offering Circular;
and
|
7.6.6
|
between
the
date hereof and the Closing Date (both dates inclusive), the Issuer
will
not do any act or thing which would result in an adjustment to the
Conversion Price (as defined in the Conditions) of the Securities
were the
Securities to have been issued at such
time.
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7.7
|
Consents:
no action or thing is required to be taken, fulfilled
or
done by the Issuer (including without limitation the obtaining
of any consent or licence or the making of any filing or registration)
for
the issue of the Securities or the Shares to be issued upon conversion
of
the Securities, the carrying out of the other transactions contemplated
by
the Contracts or the compliance by the Issuer with the terms of the
Securities and the Contracts as the case may be other than (i) any
action
or thing which has been, or will on or prior to the Closing Date
be,
taken, fulfilled or done and (in the case of any consent, licence,
filing
or registration) which is, or will on the Closing Date be, in full
force
and effect or (ii) any action or thing which the terms of the Securities
and/or the Contracts, as the case may be, provide or contemplate
will be
taken, fulfilled or done after the Closing
Date.
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7.8
|
Draft
Offering Circular: (a) the Draft Offering Circular contains all
information with respect to the Issuer and its Subsidiaries, the
Securities and the Shares which is material in the context of the
issue
and the Offering of the Securities, including all information required
by
applicable laws and all such information, which, according to the
particular nature of the Issuer and of the Securities, and the Shares,
investors and their professional advisers would reasonably require
and
reasonably expect to find there for the purpose of making an informed
assessment of the assets and liabilities, financial position, profits
and
losses, and prospects of the Issuer and the rights attaching to the
Securities and the Shares; (b) such information is true and accurate
in
all material respects and is not misleading; (c) the opinions and
intentions expressed therein are honestly held and made and have
been made
after due and careful consideration and are based on reasonable
assumptions; (d) there are no other facts the omission of which would
make
the Draft Offering Circular as a whole or any such information or
the
expression of any such opinions or intentions misleading; and (e)
the
Issuer has made all reasonable enquiries to ascertain all facts which
are
material for the purposes
aforesaid.
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7.9
|
Offering
Circular: at the date of the Offering Circular: (a) the Offering
Circular will contain all information with respect to the Issuer
and its
Subsidiaries, the Securities and the Shares which is material in
the
context of the issue and the Offering of the Securities, including
all
information required by applicable laws and all such information,
which,
according to the particular nature of the Issuer and of the Securities,
and the Shares, investors and their professional advisers would reasonably
require and reasonably expect to find there for the purpose of making
an
informed assessment of the assets and liabilities, financial position,
profits and losses, and prospects of the Issuer and the rights attaching
to the Securities and the Shares; (b) such information will be true
and
accurate in all material respects and will not be misleading; (c)
the
opinions and intentions expressed therein will be honestly held and
made
and will have been made after due and careful consideration and will
be
based on reasonable assumptions; (d) there will be no other facts
the
omission of which
|
-7-
would make the Offering Circular as a whole or any such information or the expression of any such opinions or intentions misleading; and (e) the Issuer will have made all reasonable enquiries to ascertain all facts which are material for the purposes aforesaid. |
7.10
|
Financial
Statements of the Issuer:
save as
disclosed in the Draft Offering Circular, (a) the audited
consolidated financial statements of the Issuer and its consolidated
subsidiaries taken as a whole (the “Consolidated Group”)
as at and for the two years ended 31 December 2006 were prepared
in
accordance with accounting principles generally accepted in the United
States of America (“U.S. GAAP”), consistently applied
except as disclosed therein and present fairly in all material respects,
the financial position of the Issuer and of the Consolidated Group
as at
the dates, and the results of operations and cashflows of the Issuer
and
of the Consolidated Group for the periods, in respect of which they
have
been prepared; (b) the unaudited interim consolidated financial statements
of the Consolidated Group for the three month period ended 31 March
2007
were prepared in accordance with U.S. GAAP consistently applied except
as
disclosed therein and fairly present in all material respects the
financial position of the Issuer and of the Consolidated Group as
at the
dates, and the results of operations and cashflows of the Issuer
and of
the Consolidated Group for the periods, in respect of which they
have been
prepared; and (c) since 31 December 2006, there has been no adverse
change, and no development involving a prospective adverse change,
in the
financial condition, business or results of operation or prospects
of the
Issuer or of the Consolidated Group, whether or not arising in the
ordinary course of business which could reasonably be expected to
have a
material adverse effect on the Issuer or the Consolidated Group,
respectively.
|
7.11
|
Non-Public
Facts or Circumstances: neither the Issuer nor any of its
directors or officers is aware of any non-public fact or circumstance
that, if made public, would be likely to have a significant effect
upon
the price of the Securities or the Shares or upon the Issuer or the
Group.
The Issuer is in compliance with the listing rules of the UK Listing
Authority and the London Stock Exchange (including but not limited
to
continuous disclosure obligations).
|
7.12
|
Litigation:
save as disclosed in the Draft Offering Circular, neither the Issuer
nor
any of its Subsidiaries is involved in any litigation, arbitration
or
other proceedings relating to claims which either individually or
in
aggregate are, or could reasonably be expected to be, materially
adverse
to the condition (financial or otherwise), prospects or results of
operations or general affairs of the Issuer or the Consolidated Group
and/or material in the context of the issue of the Securities, nor,
to the
best of the Issuer’s knowledge, is any such litigation, arbitration or
other proceeding pending or
threatened.
|
7.13
|
Environment:
save
as
disclosed in the Draft Offering Circular, neither the Issuer nor
any of its Subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body
or any
court, relating to the use, disposal or release of hazardous or toxic
substances or processes or relating to the protection or restoration
of
the environment or human exposure to hazardous or toxic substances
or
processes (collectively, “environmental laws”), to the
best of the Issuer’s knowledge (after due and careful enquiry), owns or
operates any real property contaminated with any substance that is
subject
to any environmental laws, is liable for any disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating
to
any environmental laws, which violation, contamination, liability
or claim
would individually or in the aggregate have a material adverse effect
on
the Issuer or the Consolidated Group as a
whole.
|
7.14
|
Intellectual
Property: save as disclosed in the Draft Offering Circular or
which is otherwise not material in the context of the issue of the
Securities and the Offering, so far
|
-8-
as the Issuer's Relevant Employees are aware: (i) the Issuer and each of its Subsidiaries owns or possesses adequate rights to use its trademarks, trade names, patents, service xxxx registrations, technology, know-how, copyrights, confidential information and other intellectual property necessary for the conduct of its business with respect to marketed products; and (ii) neither the Issuer nor any of its Subsidiaries has received any written notice of any claim that it is infringing any such rights of others. For the purposes of this Clause 7.14 the Issuer's "Relevant Employees" are those of its officers and employees who in connection with the Offering have participated in due diligence calls with the Joint Lead Managers on or before the date of this Agreement. |
7.15
|
No
Stabilisation: none of the Issuer nor any of its Subsidiaries,
nor any person acting on behalf of the Issuer or any such Subsidiary
(other than the Stabilising Manager as to whom the Issuer does not
make
any representation) has taken, or will from the date thereof up to
and
including the date falling 30 days after the Closing Date take, directly
or indirectly, any action designed to or which has constituted or
which
might reasonably be expected to cause or result in the stabilisation
in
violation of applicable laws or manipulation of the price of the
Securities or any security to facilitate the sale or resale of the
Securities, provided
for the
avoidance of doubt that this restriction shall not prohibit any broker
acting on behalf of the Issuer's Employee Share Option Trust from
purchasing Shares in accordance with the rules, and subject to the
limits,
of such trust's share buy-back
programme.
|
7.16
|
Directed
Selling Efforts: neither the Issuer, nor any affiliate (as
defined in Rule 405 under the United States Securities Act of 1933,
as
amended (the “Securities Act”)) of
the Issuer, nor any person acting on behalf of the Issuer or any
such
affiliate (save for the Managers as to whom the Issuer does not make
any
representation) has engaged or will engage in any directed selling
efforts
with respect to the Securities or the Shares within the meaning of
Regulation S (“Regulation S”) under the Securities Act in
respect of the Securities and they have complied and will comply
with all
of the offering restrictions’ requirements of Regulation
S.
|
7.17
|
Foreign
Issuer: the Issuer is a “foreign issuer” (as such term is defined
in Regulation S).
|
7.18
|
Taxation
of Payments: as at the date hereof, and provided that the
Securities are upon their issue and remain at all times listed on
the
Official List and admitted to trading on the PSM, all payments of
principal and interest in respect of the Securities and all payments
by
the Issuer under the Trust Deed and the Agency Agreement, may be
made free
and clear of, and without withholding or deduction for, any taxes,
duties,
assessments or governmental charges of whatsoever nature imposed,
levied,
collected, withheld or assessed in the United Kingdom or any political
subdivision or authority thereof or therein having power to
tax.
|
7.19
|
Stamp
and Document Taxes: no stamp or other issuance or transfer taxes
or duties are payable in the United Kingdom, Luxembourg and Belgium
or, in
each case, any political subdivision thereof or to any taxing authority
thereof or therein in connection with (i) the execution, sale and
delivery
by the Issuer of the Securities (whether in definitive or global
form) for
the account of the Managers in the manner contemplated in this Agreement,
(ii) the conversion of Securities into Shares, and the delivery thereof
to
holders of Securities, in each case, in accordance with the terms
of the
Securities or (iii) the execution or delivery of this Agreement,
the Trust
Deed, the Share Subscription Agreement and the Agency Agreement,
the
Global Securities or the performance by the Issuer of its obligations
hereunder and thereunder save for any United Kingdom stamp duty or
stamp
duty reserve
|
-9-
tax in connection with the issue of Shares that may be payable under sections 67, 70, 93 or 96 of the Finance Xxx 0000. |
7.20
|
NR
Financial Statements: to the best of its knowledge and belief
(having made such due and careful enquiry as is reasonable in the
circumstances), the NR Audited Financial Statements were prepared
in
accordance with the requirements of U.S. law and with U.S. GAAP,
consistently applied, and present fairly in all material respects
(material being in the context of the Consolidated Group) the financial
position of New River Pharmaceuticals Inc. (“NR”) and of
NR and its subsidiaries taken as a whole (the "NR Group")
as at the dates, and of the results of operations and cashflows of
the NR
Group for the periods, in respect of which they have been prepared.
As
used herein, “NR Audited Financial Statements” means the
audited consolidated financial statements of NR for the fiscal years
ended
31 December 2006 and 1 January 2006 incorporated by reference in
the Draft
Offering Circular and which will be incorporated by reference in
the
Offering Circular.
|
7.21
|
No
Material Adverse Change of NR since the NR Accounts Date: since
31 December 2006, to the best of its knowledge and belief (having
made
such due and careful enquiry as is reasonable in the circumstances),
there
has been no change (nor any development or event involving a prospective
change) which would have a material adverse effect in the context
of the
Consolidated Group on the condition (financial or other), business,
properties, prospects, results of operations, profitability or general
affairs of NR or of the NR Group, whether or not arising in the ordinary
course of business.
|
7.22
|
Pro
Forma Accounts: the unaudited pro forma financial information of
the Issuer incorporated by reference in the Draft Offering Circular
and to
be incorporated by reference in the Offering Circular has been prepared
to
illustrate the effect on the consolidated net assets of the Issuer
as if
the acquisition of NR as referred to in the Draft Offering Circular
(the
“NR Acquisition”) had occurred at 31 December 2006. Such
pro forma financial information has been properly compiled on the
basis
stated therein and such basis is consistent with the accounting policies
of the Issuer.
|
7.23
|
Information
in Respect of NR: to the best of its knowledge and belief (having
made such due and careful enquiry as is reasonable in the circumstances),
the Issuer is not aware of any non-public fact or circumstance relating
to
the NR Acquisition, NR or the NR Group that, if made public would
be
material in the context of the issue and offering of the Bonds or
which
would otherwise be necessary to enable investors to make an informed
assessment of the assets and liabilities, financial position, profits
and
losses, and prospects of the Company (both before and after completion
of
the NR Acquisition).
|
8
|
Covenants
of the Issuer
|
The
Issuer covenants
to and agrees with the Joint Lead Managers on behalf of the Managers
that:
8.1
|
Expenses:
it will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Issuer’s legal advisers; (ii) the fees, disbursements
and expenses of the Issuer’s accountants; (iii) all expenses of the Issuer
in connection with the listing of the Securities (including, without
limitation, any advertisements required in connection therewith);
(iv) the
cost of the preparation and delivery of the Securities in temporary
and
definitive forms, the preparation and printing of the Offering Circular
and any amendments and supplements thereto and the mailing and delivery
of
copies thereof to the Managers; (v) the cost of printing or reproducing
this Agreement, the Share Subscription Agreement,
|
-10-
the Trust Deed, the Agency Agreement and any other documents prepared in connection with the offering, issue and initial delivery of the Securities; (vi) the fees and expenses of the Trustee in connection with the preparation and execution of the Trust Deed and the Agency Agreement and the issue of the Securities and compliance with the Terms and Conditions of the Securities (including, without limitation, the fees and expenses of the Trustee’s legal advisers) and; (vii) the fees and expenses of the Paying and Conversion Agents in connection with the preparation and execution of the Paying and Conversion Agency Agreement and the issue, exchange and listing of the Securities; in addition the Issuer shall reimburse Xxxxxxx Xxxxx International for legal fees, disbursements and expenses incurred in connection with the transaction during 2006, and the Joint Lead Managers for the fees, disbursements and expenses of their legal advisers incurred in connection with the transaction in 2007 in an amount not exceeding U.S.$200,000; |
8.2
|
Stamp
Taxes:
the
Issuer will pay any stamp duty, stamp duty reserve tax, issue,
registration, documentary or other similar taxes and duties, including
interest and penalties arising in respect thereof, payable in the
United
Kingdom, Belgium and Luxembourg on or in connection with the creation,
issue and initial delivery of the Securities in accordance with the
Trust
Deed and Agency Agreement or the execution or delivery of such Agreements
or this Agreement;
|
8.3
|
Value
Added Tax: sums payable under this Agreement are (unless
expressly stated otherwise) exclusive of amounts in respect of any
applicable value added tax, which amounts shall be payable in addition
to
the sums stated to be payable under this Agreement on presentation
of an
appropriate value added tax
invoice;
|
8.4
|
Warranties:
it will notify the Managers promptly of the occurrence at any time
prior
to satisfaction of the consideration being made for the Securities
on the
Closing Date of any event which renders or may render untrue or incorrect
any of the representations and warranties in Clause 7 by reference
to the
facts and circumstances pertaining at such time and take such steps
as may
be reasonably requested by the Joint Lead Managers to remedy and/or
publicise the same;
|
8.5
|
Delivery
of Offering Circular: the Issuer will prepare and deliver to
the
Joint Lead Managers on behalf of the Managers, subject to the UK
Listing Authority having agreed to list the Securities and the London
Stock Exchange having agreed to admit the Securities to trading,
on or
before 4 May 2007, three copies of the Offering Circular, signed
by an
authorised officer of the Issuer. The Issuer will deliver to each
Manager,
without charge, from time to time as requested, such number of copies
of
the Offering Circular and any amendment or supplement thereto prepared
pursuant to Clause 8.6 as each Manager may reasonably
request;
|
8.6
|
Supplemental
Offering Circular: the Issuer will advise the Managers promptly
of any proposal to amend or supplement the Offering Circular and
will not
effect such amendment or supplementation without the Managers’ consent
(such consent not to be unreasonably withheld or delayed). If at
any time
prior to completion of the distribution of the Securities or the
payment
of the subscription monies for the Securities on the Closing Date,
any
event shall have occurred as a result of which the Offering Circular,
as
then amended or supplemented, would include an untrue statement of
a
material fact or omit to state any material fact necessary to make
the
statements therein, in the light of the circumstances under which
they are
made when such Offering Circular is delivered, not misleading in
any
respect or if for any other reason it shall be necessary to amend
or
supplement the Offering Circular, the Issuer will promptly notify
the
Managers and, upon request from the
|
-11-
Managers, will prepare and furnish without charge to the Managers as many copies as each Manager may from time to time reasonably request of an amended Offering Circular or a supplement to the Offering Circular which will correct such statement or omission; |
8.7
|
Public
Announcements: between the date hereof and the Closing Date, none
of the Issuer nor any of its affiliates will without the prior consent
of
the Joint Lead Managers (such approval not to be unreasonably withheld
or
delayed) issue any public announcement which would be material in
the
context of the issue and offering of the Securities, provided that
nothing
herein shall prevent the Issuer (or any such affiliate) from complying
with any applicable laws or regulations;
and
|
8.8
|
Directed
Selling: neither the Issuer, nor any affiliate of the Issuer, nor
any person acting on behalf of the Issuer or any such affiliate (save
for
the Managers as to whom the Issuer does not so covenant or agree)
will
engage in any directed selling efforts with respect to the Securities
and
the Shares within the meaning of Regulation
S.
|
9
|
Conditions
Precedent
|
The
several
obligations of the Managers hereunder shall be subject to the condition that
the
Issuer shall have performed all of its obligations hereunder to be performed
prior to the Closing Date, and to the following additional
conditions:
9.1
|
Material
Adverse Change: there not having been between the signing of this
Agreement and the Closing Date any loss or interference with the
Issuer’s
business from fire, explosion, flood or other calamity, whether or
not
covered by insurance, or from any labour dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in
the Offering Circular, or any
change in the shareholders’ funds or long-term debt of the Issuer, its
Subsidiaries or the Group or any change, or any development involving
a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations
of the
Issuer or the Group, the effect of which is, in the judgment of the
Joint
Lead Managers, so material and adverse as to make it impracticable
or
inadvisable for the Issuer to proceed with the public offering or
the
delivery of the Securities on the terms and in the manner contemplated
in
this Agreement;
|
9.2
|
Compliance:
there not having been any change, or any development or event reasonably
likely to involve a prospective change, which would render or be
capable
of rendering untrue and incorrect any of the representations and
warranties contained in Clause 7 on the Closing Date as though they
had
been made and given on each such date by reference to the facts and
circumstances then pertaining;
|
9.3
|
Certificate:
there having been delivered to the Joint Lead Managers a certificate,
dated the Closing Date, signed by a duly authorised officer of the
Issuer
as to the matters set out in Clause 9.2 above and to the effect that
on or
prior to the Closing Date the Issuer has performed all of its obligations
under this Agreement to be performed on or prior to such
date;
|
9.4
|
Listing:
the Securities having been duly admitted to listing by the UK Listing
Authority and duly admitted to trading on the Exchange, subject only
to
the issue of the Global Security or the Joint Lead Managers being
satisfied that such listing and trading will be granted shortly after
the
Closing Date;
|
-12-
9.5
|
Contracts:
the Trust Deed and the Agency Agreement having been executed and
delivered
by the respective parties thereto on or prior to the Closing
Date;
|
9.6
|
Legal
opinions: (i) Linklaters LLP, English legal advisers to the
Managers and the Trustee, having furnished to the Managers and the
Trustee
their written opinion dated the Closing Date in a form satisfactory
to the
Joint Lead Managers, (ii) Xxxxx Xxxx & Xxxxxxxx, U.S. legal advisers
to the Issuer, having furnished to the Managers and the Trustee their
written “no-registration” opinion dated the Closing Date in a form
satisfactory to the Joint Lead
Managers;
|
9.7
|
Offering
Circular: the Issuer having prepared, published and delivered to
the Managers on or before the date falling two business days prior
to the
Closing Date the Offering Circular, in form and substance satisfactory
to
the
Joint Lead Managers; and
|
9.8
|
Auditors’
Letters: on the date of this Agreement, the date of the Offering
Circular and on the Closing Date, there having been delivered to
the
Managers letters, in form and substance satisfactory to the
Joint Lead
Managers on behalf of the Managers, dated the date of this
Agreement, the date of the Offering Circular and the Closing Date,
respectively, and addressed to the Managers, from Deloitte & Touche
LLP, the auditors of the Issuer.
|
If
any of the
foregoing conditions is not satisfied this Agreement shall (subject as mentioned
below) thereupon terminate and the parties hereto shall (subject to the
provisions of Clause 12.3) be, to such extent, released and discharged from
their respective obligations hereunder, provided that the Joint Lead Managers
on
behalf of the Managers may waive compliance with any one or more provisions
of
this Clause 9 other than the execution of the Trust Deed and the Agency
Agreement.
10
|
Confirmations
and Undertakings of the
Managers
|
Each
of the Managers
severally undertakes to and with the Issuer and the other Managers that the
Securities subscribed by it pursuant to this Agreement have only been and will
only be offered or subscribed on the following terms:
10.1
|
United
States
|
10.1.1
|
Each
Manager
acknowledges that the Securities have not been and will not be registered
under the Securities Act and may not be offered or sold within the
United
States or to, or for the account or benefit of, U.S. persons except
in
accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act and each Manager
represents and agrees: that it has offered and sold the Securities,
and
will offer and sell the Securities (i) as part of their distribution
at
any time and (ii) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, only in accordance
with
Rule 903 of Regulation S under the Securities Act. Accordingly, neither
it, its affiliates nor any persons acting on its or their behalf
have
engaged or will engage in any directed selling efforts with respect
to the
Securities or the Shares, and it and they have complied and will
comply
with the offering restrictions requirement of Regulation S. It agrees
that, at or prior to confirmation of sale of Securities it will have
sent
to each distributor, dealer or person receiving a selling concession,
fee
or other remuneration that purchases Securities from it during the
distribution compliance period a confirmation or notice to substantially
the following effect:
|
-13-
“The
Securities
covered hereby have not been registered under the U.S. Securities Act of 1933
(the “Securities Act”) and may not be offered and sold within
the United States or to, or for the account or benefit of, U.S. persons (i)
as
part of their distribution at any time or (ii) otherwise until 40 days after
the
later of the commencement of the offering and the Closing Date, except in either
case in accordance with Regulation S under the Securities Act”.
Terms
used in this
paragraph have the meanings given to them by Regulation S.
10.1.2
|
Each
Manager
represents and agrees that, except to the extent permitted under
U.S.
Treas. Reg. §1.163-5(c)(2)(i)(D) (the “D Rules”), (1) it
has not offered or sold, and during the restricted period will not
offer
or sell, Securities to a person who is within the United States or
its
possessions or to a United States person, (2) it has not delivered
and
will not deliver within the United States or its
possessions Securities that are sold during the restricted
period, (3) it has and throughout the restricted period will have
in
effect procedures reasonably designed to ensure that its employees
and
agents who are directly engaged in selling Securities are aware that
Securities may not be offered or sold during the restricted period
to a
person who is within the United States or its possessions or to a
United
States person, (4) if it is a United States person it is acquiring
the
Securities for purposes of resale in connection with their original
issuance and if it retains Securities for its own account, it will
only do
so in accordance with the requirements of U.S. Treas. Reg.
§1.163-5(c)(2)(i)(D)(6), (5) with respect to each affiliate that acquires
from it Securities in bearer form for the purpose of offering or
selling
such Securities during the restricted period, each Manager either
(a)
repeats and confirms the representations and agreements contained
in
Clauses (1), (2), (3) and (4) above on the affiliate’s behalf or (b)
agrees that it will obtain from such affiliate for the Issuer’s benefit
the representations and agreements contained in Clauses (1), (2),
(3) and
(4) above, and (6) it will obtain for the Issuer’s benefit the
representations and agreements contained in Clauses (1), (2), (3),
(4) and
(5) above from any person other than an affiliate with whom it enters
into
a written contract, as defined in U.S Treas, Reg. § 1.163.
5(c)(2)(i)(D)(4) for the offer or sale of Securities during the restricted
period.
|
Terms
used in
sub-section 10.1.2 have the meanings given to them by the U.S. Internal Revenue
Code of 1986, as amended, and regulations thereunder, including the D
Rules.
10.2
|
United
Kingdom
|
10.2.1
|
Each
Manager
has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement
to
engage in investment activity (within the meaning of section 21 of
the
Financial Services and Markets Xxx 0000 (the “FSMA”))
received by it in connection with the issue or sale of any Securities
in
circumstances in which section 21(1) of the FSMA does not apply to
the
Issuer; and
|
10.2.2
|
Each
Manager
has complied and will comply with all applicable provisions of the
FSMA
with respect to anything done by it in relation to the Securities
in, from
or otherwise involving the United
Kingdom.
|
10.3
|
Jersey
|
-14-
Each
Manager agrees
that it will not circulate in Jersey any offer for subscription, sale or
exchange of the Securities without either the prior consent of the Jersey
Financial Services Commission or pursuant to an exemption from the requirement
to obtain such consent.
10.4
|
Republic
of Italy
|
Each
Manager agrees
that it will not make an offer of the Securities to the public in the Republic
of Italy (“Italy”) other than:
(a)
|
to
professional investors (investitori qualificati), as defined
pursuant to Article 100, paragraph 1(a), of Legislative Decree No
58, 24
February 1998 (the “Financial Services Act”) as amended
and restated from time to time; or
|
(b)
|
in
any other
circumstances provided under Article 100 paragraph 1 of the Financial
Services Act and under Article 33, paragraph 1, of CONSOB Regulation
No.
11971 of 14 May 1999, as amended, where exemptions from the requirement
to
publish a prospectus pursuant to Article 94 of the Financial Services
Act
are provided.
|
Moreover,
and
subject to the foregoing, each the Manager acknowledges that any offer, sale
or
delivery of the Securities or distribution of copies of the Offering Circular
or
any other document relating to the Securities in Italy under (a) or (b) above
must be:
(i)
|
made
by an
investment firm, bank or financial intermediary permitted to conduct
such
activities in Italy in accordance with the Financial Services Act,
Legislative Decree No. 385 of 1 September 1993 (the “Banking
Act”), CONSOB Regulation No. 11522, 1 July 1998, all as amended;
and
|
(ii)
|
in
compliance
with the so-called subsequent notification to the Bank of Italy,
pursuant
to Article 129 of the Banking Act, as
applicable;
|
(iii)
|
in
compliance
with Article 100-bis of the Financial Services Act (if applicable);
and
|
(iv)
|
in
compliance
with any other applicable laws and regulations including any relevant
limitations which may be imposed by
CONSOB.
|
10.5
|
Each
Manager
acknowledges that no action has been or will be taken by the Issuer
or
such Manager that would permit a public offering of the Securities
or
possession or distribution of the Offering Circular or other offering
material relating to the Securities in any country or jurisdiction
where
action for that purpose is required. Accordingly, such Manager will
observe, to the best of its knowledge and belief, all applicable
laws and
regulations in each jurisdiction in or from which it may offer or
sell
Securities or have in its possession or distribute the Offering Circular
or other offering material relating to the Securities and any offer,
sale,
delivery or distribution of the Securities, the Offering Circular
or other
offering material relating to the Securities by it will be made on
the
same terms as above.
|
10.6
|
Without
prejudice to the provisions of paragraphs 10.1 to 10.5 above, neither
the
Issuer nor any of the other Managers shall have any responsibility
for,
and each Manager will obtain any consent, approval or permission
required
by it for the subscription, offer or sale by such Manager of the
Securities under the laws and regulations in force in any jurisdiction
to
which it is subject or in or from which it makes any subscription,
offer
or sale.
|
-15-
11
|
Indemnification
|
11.1
|
The
agreement
of the Managers to subscribe for the Securities is entered into on
the
basis of the representations and warranties and agreements of the
Issuer
contained in this Agreement and the Issuer undertakes with the Managers
and each of them that if any Manager or any of its respective directors
and officers and each United States person (if any) who controls
such
Manager for the purpose of Section 15 of the Securities Act (each
a
“relevant party”) incurs any losses, liabilities, costs,
claims, charges, actions, proceedings, damages, expenses or demands
(each
a “loss”) as a result of or arising out of, or in
relation to, any misrepresentation or alleged misrepresentation or
any
breach or alleged breach of any of the aforesaid representations,
warranties or agreements of the Issuer (including as a result of
any
failure to be able to repeat such representations and warranties
on the
date of the Offering Circular and on the Closing Date by reference
to the
facts and circumstances then pertaining as contemplated by Clause
9.2) or
in connection with any untrue statement or alleged untrue statement
contained in the Offering Circular or the term sheet in the agreed
form
relating to the Securities or any omission or alleged omission to
state
therein a material fact, necessary to make the statement therein
not
misleading, the Issuer shall pay to that Manager promptly an amount
equal
to such loss. No Manager shall have any duty or obligation, whether
as
fiduciary or trustee of any relevant party or otherwise, to recover
any
such payment or to account for any other person for any amounts paid
to it
under this section.
|
If
any action,
proceeding, claim or demand shall be brought or asserted against a relevant
party in respect of which the Issuer is or may be liable to make payment as
herein provided, the relevant Manager shall promptly notify the Issuer in
writing and the Issuer shall have the option to assume the defence thereof,
including the employment of legal advisers approved by the relevant Manager,
subject to the payment by the Issuer of all fees and expenses relating thereto
and provided that such legal advisers shall not, save with the consent of the
relevant Manager, also be legal advisers to the Issuer; provided that if the
defendants in any such action, proceeding, claim or demand include the Issuer
and the Managers or any of them, and the Joint Lead Managers on behalf of the
Managers or the relevant Manager shall have reasonably concluded that there
may
be legal defences available to all the Managers or the relevant Manager shall
have concluded that there may be legal defences available to the relevant party
which are different from or additional to those available to the Issuer, and
in
the event that the Issuer is prevented from assuming such different or
additional legal defences on behalf of the Managers or the relevant party,
the
Joint Lead Managers on behalf of the Managers or the relevant Manager, as the
case may be, shall have the right, at the expense of the Issuer, to select
separate legal advisers to assume such legal defences and otherwise to
participate in the defence of such action, proceeding, claim or demand on behalf
of the Joint Lead Managers on behalf of the Managers or of the relevant Manager,
as the case may be.
11.2
|
Upon
receipt
of notice from the Issuer of its election so to assume the defence
of any
such action, proceeding, claim or demand and approval by the relevant
Manager as aforesaid of legal advisers, the Issuer will not be liable
to
any relevant party under this Clause 11 for any fees or expenses
subsequently incurred by such relevant party in connection with the
defence thereof unless:
|
11.2.1
|
the
relevant
Manager shall have employed legal advisers in connection with the
assumption of legal defences in accordance with the proviso to Clause
11.1
above; or
|
-16-
11.2.2
|
the
Issuer
shall not have employed legal advisers approved by or on behalf of
the
relevant Manager to represent such relevant party within a reasonable
time
after notice of commencement of the action or proceedings or the
making of
any claim or demand; or
|
11.2.3
|
the
Issuer has
authorised the employment of separate legal advisers by the Managers
or
any of them,
|
in
which case it
will reimburse the relevant Manager all such fees and expenses.
11.3
|
The
Issuer and
the Managers, as the case may be, undertake not to compromise or
settle
any such action, proceeding, claim or demand without the consent
of the
relevant Manager or the Issuer, as the case may be. If any such action,
proceeding, claim or demand shall be settled with the consent of
the
Issuer or the relevant Manager, as the case may be, or if there be
a final
judgment for the plaintiff in relation thereto, the Issuer agrees
to pay
on demand to the relevant Manager an amount equal to any losses incurred
by reason of such settlement or judgment (other than any fees and
expenses
incurred in circumstances where the Issuer is not to be liable therefor
under paragraph 11.2 above).
|
11.4
|
The
respective
indemnities, agreements, representations, warranties and other statements
of the Issuer and the Managers, as set forth in this Agreement or
made by
or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation
(or any
statement as to the results thereof) made by or on behalf of any
Manager
or the Issuer and shall survive delivery of and satisfaction of the
consideration for the Securities.
|
12
|
Termination
and Failure of
Underwriting
|
12.1
|
If,
at any
time prior to the time specified in Clause 5.1 on the Closing
Date:
|
12.1.1
|
in
the opinion
of the Joint Lead Managers there shall have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the London Stock Exchange ; (ii) a suspension or material limitation
in
trading in the Issuer’s securities on the London Stock Exchange; (iii) a
general moratorium on commercial banking activities in New York or
London
declared by the relevant authorities, or a material disruption in
commercial banking or securities settlement or clearance services
in the
United States, the United Kingdom, Belgium or Luxembourg; (iv) a
change or
development involving a prospective change in taxation in the United
Kingdom or the United States affecting the Issuer, the Shares or
the
Securities or the transfer thereof; (v) the outbreak or escalation
of
hostilities involving the United States or the United Kingdom or
the
declaration by the United States or the United Kingdom of a national
emergency or war or (vi) the occurrence of any other calamity or
crisis or
any change in financial, political or economic conditions or currency
exchange rates or controls, if the effect of any such event in the
judgment of the Joint Lead Managers makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities
being delivered at such time on the terms and in the manner contemplated
in the Offering Circular or
|
12.1.2
|
any
breach of
the representations or warranties set forth in this Agreement, any
failure
by the Issuer to perform any of the agreements set forth in this
Agreement
or any change which would render the said representations or warranties
inaccurate if
|
-17-
they were to be repeated immediately thereafter comes to the notice of any of the Managers, |
then
the Joint Lead
Managers on behalf of the Managers shall be entitled (but not bound) by notice
to the Issuer to elect to treat such event, breach or failure as terminating
this Agreement whereupon
the parties shall to such extent be released from their respective obligations
hereunder (other than the Issuer’s obligations pursuant to Clause
12.3).
12.2
|
(a)
If any
Manager shall default in its obligation to procure subscribers for,
failing which to subscribe the Securities on the Closing Date, the
Joint
Lead Managers may in their discretion, but with the Issuer’s consent,
arrange for the Joint Lead Managers or another party or other parties
satisfactory to the Issuer to subscribe for or purchase such Securities
on
the terms contained herein and the Issuer may in its discretion procure
another party or other parties satisfactory to the Joint Lead Managers
to
procure subscribers for, failing which to subscribe the Securities
on the
terms set out herein. In the event that the Joint Lead Managers or
the
Issuer shall notify the other within 36 hours that it has arranged,
on the
basis described above, for another party or parties to procure subscribers
for, failing which to subscribe the Securities then the Issuer shall
have
the right to postpone the Closing Date for a period of not more than
seven
days in order to effect whatever changes may thereby be made necessary
in
the Offering Circular or in any other documents or
arrangements. The term “Manager” as used in
this Agreement shall include any person substituted under this Clause
with
like effect as if such person had originally been a party to this
Agreement with respect to such Securities but nothing herein shall
relieve
a defaulting Manager from liability for its
default.
|
(b)
If, after giving
effect to any arrangements for the subscription of the Securities of a
defaulting Manager or Managers by the Joint Lead Managers and the Issuer as
provided in (a) above, the aggregate number of such Securities which remain
unsubscribed does not exceed one eleventh of the aggregate number of all of
the
Securities to be subscribed on the Closing Date, then the Issuer shall have
the
right to require each non-defaulting Manager to subscribe for the number of
Securities which such Manager agreed to subscribe for hereunder on the Closing
Date and, in addition, to require each non-defaulting Manager to subscribe
for
its pro rata share (based on the number of Securities which such
Manager agreed to subscribe for hereunder) of the Securities of such defaulting
Manager or Managers for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Manager from liability for its
default.
(c)
If, after giving
effect to any arrangements for the subscription or purchase of the Securities
of
a defaulting Manager or Managers by the Joint Lead Managers, the Issuer as
provided in (a) above, the aggregate number of such Securities which remains
unsubscribed exceeds one eleventh of the aggregate number of all of the
Securities to be subscribed on the Closing Date, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting Manager
or the Issuer, (other than the Issuer’s obligations pursuant to Clause 12.3);
but nothing herein shall relieve a defaulting Manager from liability for its
default.
12.3
|
If
this
Agreement shall be terminated pursuant to Clauses 9 or 12, or if
for any
other reason the Securities are not delivered by or on behalf of
the
Issuer as provided herein, then notwithstanding any prior agreement
between the Issuer and the Managers, the Issuer agrees, subject to
and in
accordance with Clause 8.1, to reimburse the Managers through the
Joint
Lead Managers for their out-of-pocket expenses, but the Issuer shall
not
then be
|
-18-
under any further liability to any Manager except as provided in Clause 8.1 and Clause 11.1, which shall remain in full force and effect. |
13
|
Lock
Up
|
During
the period
beginning from the date hereof and continuing to the date 90 days after the
Closing Date the Issuer shall not, without the prior written consent of the
Joint Lead Managers, offer, pledge, sell, contract to sell or sell any option
or
contract to purchase, purchase any option to sell, grant any option, right
or
warrant to purchase, or otherwise transfer or dispose of or issue any Shares,
including but not limited to any securities (including American Depositary
Shares (“ADSs”)) that are convertible into or exchangeable for,
or that represent the right to receive, Shares, or to enter into any swap or
similar agreement that transfers, in whole or in part, the economic risk or
benefit of ownership of Shares, whether any of the foregoing transactions is
to
be settled by delivery of Shares or other such securities, in cash or otherwise,
or publicly to announce plans to do any of the foregoing, other than (i) the
Securities
or (ii) in connection with transactions which have already been publicly
announced or (iii) pursuant to scrip dividend schemes or (iv) upon exercise
of
existing options or exchange rights in respect of Shares or ADSs or (v) pursuant
to the grant of options, securities or other rights under any employees’ share
or option or incentive scheme or (vi) the issue of ADSs in respect of existing
Shares or the surrender of existing ADSs in return for the underlying
Shares.
14
|
Notices
|
In
all dealings
hereunder, the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Manager made or given
by the Managers jointly or by the Joint Lead Managers on their
behalf.
Any
notice hereunder
to the Issuer shall be given to it at its address at Hampshire International
Business Park, Xxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx XX00 0XX, Xxxxxx Xxxxxxx,
Attention: Group Treasurer (copy to Legal Department); fax + 00 (0) 00 0000
0000
by the Joint Lead Managers on behalf of the Managers, and any notice or document
to be given or sent by the Issuer to the Managers shall be given or sent to
the
Joint Lead Managers on behalf of the Managers and addressed to the Managers,
c/o
Goldman Xxxxx International, Peterborough Court, 000 Xxxxx Xxxxxx, Xxxxxx XX0X
0XX, Attention: Xxx Xxxxxx fax: + 00 (0) 00 0000 0000. All such notices shall
be
given by letter delivered in person, or sent by fax.
15
|
Successors
and Assigns
|
This
Agreement shall
be binding upon, and enure solely to the benefit of, the Managers, the Issuer
and their respective successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement. No purchaser of any
of
the Securities from any Manager shall be deemed a successor or assign by reason
merely of such purchase.
-19-
16
|
Time
of the Essence
|
Any
date or period
specified in this Agreement may be postponed or extended by mutual agreement
among the parties, but as regards any date or period originally fixed or so
postponed or extended, time shall be of the essence.
17
|
Governing
Law
|
This
Agreement shall
be governed by and construed in accordance with English law.
18
|
Counterparts
|
This
Agreement may
be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
19
|
Headings
|
The
descriptive
headings of this Agreement are for convenience of reference only and shall
not
define or limit the provisions thereof. References in this Agreement to a
document in the “agreed form” are references to such document in the form of
copies signed for the purpose of identification by Linklaters LLP and Xxxxxxxxx
and May with such amendments only as may be agreed between the Issuer and the
Joint Lead Managers on behalf of the Managers.
If
the foregoing is
in accordance with your understanding, please sign and return to us one
counterpart hereof, and upon the acceptance hereof by you, this letter and
such
acceptance hereof shall constitute a binding agreement among each of the
Managers and the Issuer.
20
|
Contracts
(Rights of Third Parties)
1999
|
A
person who is not
a party to this Agreement has no right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term of this Agreement.
Yours
faithfully
By: XXXXXXX
XXXXXXXX
Accepted
as of the
date hereof at London, England:
ABN
AMRO
BANK N.V. and NM ROTHSCHILD & SONS LIMITED (trading together as ABN AMRO
Rothschild, an unincorporated equity capital markets joint
venture)
By:
XXXXXX
XXXX
BARCLAYS
BANK PLC
By:
XXXXXXX
XXXXXXX
-20-
CITIGROUP
GLOBAL MARKETS LIMITED
By:
XXXXXX
XXXXXXXX
XXXXXXX
XXXXX INTERNATIONAL
By:
SILJE
EINERKJAER
XXXXXX
XXXXXXX & CO. INTERNATIONAL PLC
By:
XXXXX XX
XXXXXXX
DEUTSCHE
BANK AG
THE
ROYAL
BANK OF SCOTLAND PLC
Each
by its duly
authorised attorney:
By:
SILJE
EINERKJAER
-21-
SCHEDULE
1
PART
A: FIRM
SECURITIES
Name
|
Underwriting
Commitment
|
|||
%
of Aggregate
Amount of Firm Securities offered
|
Principal
amount of Firm Securities
US$
|
Corresponding
number of Jersey Preference Shares
|
||
ABN
AMRO Bank
N.V. and NM Rothschild & Sons Limited (trading together as ABN AMRO
Rothschild, an unincorporated equity capital markets joint
venture)
|
20%
|
200,000,000
|
20,000
|
|
Barclays
Bank
PLC
|
20%
|
200,000,000
|
20,000
|
|
Citigroup
Global Markets Limited
|
20%
|
200,000,000
|
20,000
|
|
Xxxxxxx
Xxxxx
International
|
20%
|
200,000,000
|
20,000
|
|
Xxxxxx
Xxxxxxx
& Co. International plc
|
3.75%
|
37,500,000
|
3,750
|
|
Deutsche
Bank
AG
|
3.75%
|
37,500,000
|
3,750
|
|
The
Royal Bank
of Scotland plc
|
12.50%
|
125,000,000
|
12,500
|
|
Total
|
100%
|
U.S.$1,000,000,000
|
100,000
|
-22-
SCHEDULE
1
PART
B:
OPTIONAL SECURITIES
Name
|
%
of Aggregate
Amount of Optional Securities
|
%
of Aggregate
Amount of Jersey Preference Shares (1)
|
|
ABN
AMRO Bank
N.V. and NM Rothschild & Sons Limited (trading together as ABN AMRO
Rothschild, an unincorporated equity capital markets joint
venture)
|
23.88%
|
23.88%
|
|
Barclays
Bank
PLC
|
23.88%
|
23.88%
|
|
Citigroup
Global Markets Limited
|
23.88%
|
23.88%
|
|
Xxxxxxx
Xxxxx
International
|
23.88%
|
23.88%
|
|
Xxxxxx
Xxxxxxx
& Co. International plc
|
4.48%
|
4.48%
|
|
Total
|
100%
|
100%
|
(1)
|
The
number of
Jersey Preference Shares to be delivered as consideration for Optional
Securities by each Joint Lead Manager shall be that number of Jersey
Preference Shares calculated by dividing the principal amount of
Optional
Securities to be subscribed by such Joint Lead Manager, by
U.S.$1,000,000.
|
-23-
SCHEDULE
2
Option
Notice
[●]
May
2007
Hampshire
International Business Park
Xxxxxxxx
Xxxxxxxxxxx
Xxxxxxxxx
XX00
0XX
Xxxxxx
Xxxxxxx
U.S$1,000,000,000
2.75
per cent. Convertible Bonds due 2014
The
Joint Lead
Managers hereby irrevocably exercise the over-allotment option contained in
Clause 1.2 of the subscription agreement dated 2 May 2007
(the “Subscription Agreement”) in respect of U.S.$[●]
principal
amount of Optional Securities (as defined in the Subscription Agreement). The
aggregate principal amount of the Securities will now be U.S.$[●].
Signed
on behalf
of:
ABN
AMRO
BANK N.V. and NM ROTHSCHILD & SONS LIMITED (trading together as ABN AMRO
Rothschild, an unincorporated equity capital markets joint
venture)
By:
.....................................
BARCLAYS
BANK PLC
By:
.....................................
CITIGROUP
GLOBAL MARKETS LIMITED
By:
XXXXXXX
XXXXX INTERNATIONAL
By:
.....................................
XXXXXX
XXXXXXX & CO. INTERNATIONAL PLC
By:
.....................................
-24-