CONFORMED COPY
Shire Finance Limited
2% Senior Guaranteed Convertible Notes Due 2011
Guaranteed by
Shire Pharmaceuticals Group plc
Registration Rights Agreement
August 21, 2001
Bear, Xxxxxxx International Limited
Xxxxxxx Sachs International
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Bear, Xxxxxxx International Limited,
One Canada Square,
Xxxxxx, X00 0XX,
Xxxxxxx
Ladies and Gentlemen:
Shire Finance Limited, an exempted limited company organized under the laws
of the Cayman Islands (the "Company"), proposes to issue to the Purchasers (as
defined herein) upon the terms set forth in the Purchase Agreement (as defined
herein) its 2% Senior Guaranteed Convertible Notes Due 2011 (the "Securities")
convertible into exchangeable redeemable preference shares of the Company (the
"Preference Shares") that will be exchanged for ordinary shares of Shire
Pharmaceuticals Group plc, a public limited liability company organized under
the laws of England and Wales ("Shire") or, at Shire's option, cash. As an
inducement to the Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchasers thereunder, the
Company and Shire agree with the Purchasers for the benefit of Holders (as
defined herein) from time to time of the Registrable Securities (as defined
herein) as follows:
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1. Definitions.
(a) Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Purchase Agreement. As used in this Agreement,
the following defined terms shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of 1933,
as amended.
"ADSs" means the American Depositary Shares representing the Ordinary
Shares issuable upon conversion of the Securities.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Closing Date" means the First Time of Delivery as defined in the Purchase
Agreement.
"Commission" means the United States Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
"DTC" means The Depository Trust Company.
"Effective Date" has the meaning assigned thereto in Section 2(b)(i)
hereof.
"Effective Failure" has the meaning assigned thereto in Section 7(b)
hereof.
"Effectiveness Period" has the meaning assigned thereto in Section 2(b)(i)
hereof.
"Effective Time" means the time at which the Commission declares the Shelf
Registration Statement effective or at which the Shelf Registration Statement
otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(iii)
hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Holder" means, any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
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"Indenture" means the Indenture, dated as of August 21, 2001, among Shire,
the Company and The Bank of New York, as amended and supplemented from time to
time in accordance with its terms.
"Liquidated Damages" has the meaning assigned thereto in Section 7(a)
hereof.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Appendix A
hereto.
"Ordinary Shares" means Shire's ordinary shares, nominal value 5p per
share.
The term "person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act) included in the
Shelf Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by Shire under the Exchange Act and incorporated by
reference therein.
"Purchasers" means the Purchasers named in Schedule I to the Purchase
Agreement.
"Purchase Agreement" means the purchase agreement, dated as of August 15,
2001, among the Purchasers, Shire and the Company relating to the Securities.
"Registrable Securities" means all or any portion of the Securities issued
from time to time under the Indenture and the Ordinary Shares (including the
Ordinary Shares underlying the ADSs) issuable in exchange for Preference Shares;
provided, however, that a security ceases to be a Registrable Security when it
is no longer a Restricted Security.
"Registration Default" has the meaning assigned thereto in Section 7(a)
hereof.
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"Representatives" means Bear, Xxxxxxx International Limited and Xxxxxxx
Xxxxx International as representatives of the several Purchasers.
"Restricted Security" means any Security or Ordinary Share issuable in
exchange for Preference Shares except any such Security or Ordinary Share that
(i) has been effectively registered under the Securities Act and sold in a
manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto) by a non-Affiliate, or (iii)
has otherwise been transferred and a new Security or Ordinary Share not subject
to transfer restrictions under the Securities Act has been delivered by or on
behalf of the Company in accordance with Section 3.5 of the Indenture.
"Rules and Regulations" means the published rules and regulations of the
Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Statement" means a "shelf" registration statement filed
under the Securities Act providing for the registration of, and the sale on a
continuous or delayed basis by the Holders of, all of the Registrable Securities
pursuant to Rule 415 under the Securities Act and/or any similar rule that may
be adopted by the Commission, filed by the Company and Shire pursuant to the
provisions of Section 2 of this Agreement, including the Prospectus contained
therein, any amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
The term "underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of the
"principal amount" of Registrable Securities or to a percentage of Registrable
Securities, Ordinary Shares shall be treated as representing the principal
amount of Securities that was surrendered for conversion or exchange in order to
receive such number of Ordinary Shares.
2. Shelf Registration.
(a) The Company and Shire shall, no later than 90 calendar days following
the Closing Date, file with the Commission a Shelf Registration Statement
relating to the offer and
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sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders (provided
that such methods of distribution will take the form of an underwritten offering
only with the prior consent of Shire in its sole discretion) and set forth in
such Shelf Registration Statement and, thereafter, shall use its reasonable best
efforts to cause such Shelf Registration Statement to be declared effective
under the Act no later than 180 calendar days following the Closing Date;
provided, however, that Shire may, upon written notice to all Holders, postpone
having the Shelf Registration Statement declared effective for a reasonable
period not to exceed 90 days if Shire possesses material non-public information
(i), the disclosure of which would have a material adverse effect on Shire and
its subsidiaries taken as a whole, or (ii) relating to a previously undisclosed
proposed or pending transaction and, in Shire's reasonable belief, its
disclosure would impede Shire's ability to consummate such transaction;
provided, further, however, that no Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
Prospectus forming a part thereof for resales of Registrable Securities unless
such Holder is an Electing Holder.
(b) Each of the Company and Shire shall use its reasonable best efforts:
(i) to keep the Shelf Registration Statement continuously effective in
order to permit the Prospectus forming a part thereof to be usable by
Holders until the earliest of (A) the sale of all Registrable Securities
registered under the Shelf Registration Statement; (B) the expiration of
the period referred to in Rule 144(k) of the Act with respect to all
Registrable Securities held by Persons that are not Affiliates of Shire or
the Company; and (C) two years from the date (the "Effective Date") such
Shelf Registration Statement is declared effective (the period ending on
the earliest of such dates being referred to herein as the "Effectiveness
Period");
(ii) after the Effective Time of the Shelf Registration Statement, as
promptly as is practicable upon the request of any Holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such Holder to use the Prospectus forming a
part thereof for resales of Registrable Securities, including, without
limitation, any action necessary to identify such Holder as a selling
securityholder in the Shelf Registration Statement, such as the filing with
the Commission of a Post-Effective Amendment relating to the Shelf
Registration Statement; provided, however, that nothing in this
subparagraph shall relieve such Holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in accordance
with Section 3(a)(ii) hereof; and
(iii) if at any time the Securities, pursuant to Article 7 of the
Indenture, are convertible into securities other than Preference Shares,
Ordinary Shares or ADSs, to cause, or to cause any successor under the
Indenture to cause, such securities to be
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included in the Shelf Registration Statement no later than the date on
which the Securities may then be convertible into such securities.
The Company and Shire shall be deemed not to have used their reasonable
best efforts to keep the Shelf Registration Statement effective during the
requisite period if the Company or Shire, respectively, voluntarily takes any
action that would result in Holders of Registrable Securities covered thereby
not being able to offer and sell any of such Registrable Securities during that
period, unless such action is (A) required by applicable law and the Company
and/or Shire, as applicable, thereafter promptly complies with the requirements
of Section 3(j) below or (B) permitted pursuant to Section 2(c) below.
(c) Shire may suspend the use of the Prospectus for a period not to exceed
45 days if the Board of Directors of Shire shall have determined in good faith
that because of valid business reasons (not including avoidance of Shire's
obligations hereunder), including but not limited to the acquisition or
divestiture of assets, pending corporate developments and similar events, it is
in the best interest of Shire to suspend such use; provided, that Shire can
extend such suspension for up to 75 days in any 90-day period or an aggregate of
90 days in any 12-month period (i) if Shire possesses material non-public
information (A) the disclosure of which would have a material adverse effect on
Shire and its subsidiaries taken as a whole, or (B) relating to an undisclosed
proposed or pending transaction and, in Shire's reasonable belief, its
disclosure would impede Shire's ability to consummate such transaction or (ii)
otherwise with the prior written consent of the Representatives. Shire shall,
prior to suspending the use of the Prospectus or extending an existing
suspension, provide the Holders with written notice of such suspension, which
notice need not specify the nature of the event giving rise to such suspension.
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the Holders of Registrable Securities. No Holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no Holder shall be entitled to use
the Prospectus forming a part thereof for resales of Registrable Securities
at any time, unless such Holder has returned a completed and signed Notice
and Questionnaire to the Company by the deadline for response set forth
therein; provided, however, Holders of Registrable Securities shall have at
least 21 calendar days from the date on which the Notice and Questionnaire
is first mailed to such Holders to return a completed and signed Notice and
Questionnaire to the Company.
(ii) After the Effective Time of the Shelf Registration Statement, the
Company shall, upon the request of any Holder of Registrable Securities
that is not then an Electing
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Holder, as promptly as is practicable send a Notice and Questionnaire to
such Holder. The Company shall not be required to take any action to name
such Holder as a selling securityholder in the Shelf Registration Statement
or to enable such Holder to use the Prospectus forming a part thereof for
resales of Registrable Securities until such Holder has returned a
completed and signed Notice and Questionnaire to the Company.
(iii) The term "Electing Holder" shall mean any Holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(i) or 3(a)(ii)
hereof.
(b) The Company shall furnish to each Electing Holder, prior to the
Effective Time, a copy of the Shelf Registration Statement initially filed with
the Commission, and shall furnish to such Holders, prior to the filing thereof
with the Commission, copies of each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein, and each of the Company
and Shire shall use its best efforts to reflect in each such document, at the
Effective Time or when so filed with the Commission, as the case may be, such
comments as such Holders and their respective counsel reasonably may propose.
(c) The Company and Shire shall promptly take such action as may be
necessary so that (i) each of the Shelf Registration Statement and any amendment
thereto and the Prospectus forming a part thereof and any amendment or
supplement thereto (and each report or other document incorporated therein by
reference in each case) complies in all material respects with the Securities
Act and the Exchange Act and the respective rules and regulations thereunder,
(ii) each of the Shelf Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) each of the Prospectuses
forming a part of the Shelf Registration Statement, and any amendment or
supplement to such Prospectus, does not at any time during the Effectiveness
Period include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(d) The Company or Shire shall as promptly as is practicable advise each
Electing Holder, and shall confirm such advice in writing if so requested by any
such Electing Holder:
(i) when a Shelf Registration Statement and any amendment thereto has
been filed with the Commission and when a Shelf Registration Statement or
any post-effective amendment thereto has become effective, in each case
making a public announcement thereof by release made to Reuters Economic
Services or Bloomberg Business News;
(ii) of any request by the Commission for amendments or supplements to
the Shelf Registration Statement or the Prospectus included therein or for
additional information;
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(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for such purpose;
(iv) of the receipt by the Company or Shire of any notification with
respect to the suspension of the qualification of the securities included
in the Shelf Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) of the happening of any event or the existence of any state of
facts that requires the making of any changes in the Shelf Registration
Statement or the Prospectus included therein so that, as of such date, such
Shelf Registration Statement and Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which
they were made) not misleading (which advice shall be accompanied by an
instruction to such Holders to suspend the use of the Prospectus until the
requisite changes have been made).
(e) Each of the Company and Shire shall use its best efforts to prevent the
issuance, and if issued to obtain the withdrawal at the earliest possible time,
of any order suspending the effectiveness of the Shelf Registration Statement.
(f) The Company or Shire shall furnish to each Electing Holder, without
charge, at least one copy of the Shelf Registration Statement and all
post-effective amendments thereto, including financial statements and schedules,
and, if such Electing Holder so requests in writing, all reports, other
documents and exhibits that are filed with or incorporated by reference in the
Shelf Registration Statement.
(g) The Company or Shire shall, during the Effectiveness Period, deliver to
each Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such Electing Holder may
reasonably request; and the Company and Shire consent (except during the periods
specified in Section 2(c) above or during the continuance of any event described
in Section 3(d)(v) above) to the use of the Prospectus and any amendment or
supplement thereto by each of the Electing Holders in connection with the
offering and sale of the Registrable Securities covered by the Prospectus and
any amendment or supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to the Shelf
Registration Statement, the Company and Shire shall (i) register or qualify or
cooperate with the Electing Holders and their respective counsel in connection
with the registration or qualification of such Registrable Securities for offer
and sale under the securities or "blue sky" laws of such
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jurisdictions within the United States as any Electing Holder may reasonably
request, (ii) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers and sales in such
jurisdictions for so long as may be necessary to enable any Electing Holder or
underwriter, if any, to complete its distribution of Registrable Securities
pursuant to the Shelf Registration Statement, and (iii) take any and all other
actions necessary or advisable to enable the disposition in such jurisdictions
of such Registrable Securities; provided, however, that in no event shall the
Company or Shire be obligated to (A) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Section 3(h) or (B) file any general consent
to service of process or subject itself to taxation in excess of a nominal
amount in any jurisdiction where it is not as of the date hereof so subject.
(i) Unless any Registrable Securities shall be in book-entry only form, the
Company and Shire shall cooperate with the Electing Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to the Shelf Registration Statement, which
certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or engraved, or
produced by any combination of such methods, on steel engraved borders, and
which certificates shall be free of any restrictive legends and in such
permitted denominations and registered in such names as Electing Holders may
request in connection with the sale of Registrable Securities pursuant to the
Shelf Registration Statement.
(j) Upon the occurrence of any fact or event contemplated by Section
3(d)(v) above, the Company and Shire shall as promptly as is practicable prepare
a post-effective amendment to any Shelf Registration Statement or an amendment
or supplement to the related Prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Registrable Securities
included therein, the Prospectus will not 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 were
made, not misleading. If the Company or Shire notifies the Electing Holders of
the occurrence of any fact or event contemplated by Section 3(d)(v) above, the
Electing Holder shall suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made.
(k) Not later than the Effective Time of the Shelf Registration Statement,
the Company or Shire shall provide a CUSIP number for the Registrable Securities
that are debt securities.
(l) Each of the Company and Shire shall use its best efforts to comply with
all applicable Rules and Regulations, and to make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after (i) the effective date (as defined in Rule 158(c) under the
Securities Act) of the Shelf Registration Statement, (ii) the
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effective date of each post-effective amendment to the Shelf Registration
Statement and (iii) the date of each filing by Shire with the Commission of an
Annual Report on Form 10-K that is incorporated by reference in the Shelf
Registration Statement, an earning statement of Shire and its subsidiaries
complying with Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158).
(m) Not later than the Effective Time of the Shelf Registration Statement,
the Company and Shire shall cause the Indenture to be qualified under the Trust
Indenture Act; in connection with such qualification, the Company and Shire
shall cooperate with the Trustee under the Indenture and the Holders (as defined
in the Indenture) to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and the Company and Shire shall execute, and shall use all
reasonable efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified in a
timely manner. In the event that any such amendment or modification referred to
in this Section 3(m) involves the appointment of a new trustee under the
Indenture, the Company and Shire shall appoint a new trustee thereunder pursuant
to the applicable provisions of the Indenture.
(n) In the event of an underwritten offering conducted pursuant to Section
6 hereof, the Company and Shire shall, if requested, as promptly as is
practicable include or incorporate in a Prospectus supplement or post-effective
amendment to the Shelf Registration Statement such information as the Managing
Underwriters reasonably agree should be included therein and to which Shire does
not reasonably object and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after it is
notified of the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment.
(o) The Company and Shire shall enter into such customary agreements
(including an underwriting agreement in customary form in the event of an
underwritten offering conducted pursuant to Section 6 hereof) and take all other
appropriate action in order to expedite and facilitate the registration and
disposition of the Registrable Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those set
forth in Section 5 hereof with respect to all parties to be indemnified pursuant
to Section 5 hereof.
(p) Each of the Company and Shire shall:
(i)(A) make reasonably available for inspection by the Electing
Holders, any underwriter participating in any disposition pursuant to the
Shelf Registration Statement, and any attorney, accountant or other agent
retained by such Electing Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and
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properties of itself and its subsidiaries, and (B) cause its officers,
directors and employees to supply all information reasonably requested by
such Electing Holders or any such underwriter, attorney, accountant or
agent in connection with the Shelf Registration Statement, in each case, as
is customary for similar due diligence examinations; provided, however,
that all records, information and documents that are designated in writing
by the Company or Shire, as applicable, in good faith, as confidential
shall be kept confidential by such Electing Holders and any such
underwriter, attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such records,
information or documents become available to the public generally or
through a third party without an accompanying obligation of
confidentiality; and provided further that, such inspection and information
gathering shall, to the greatest extent possible, be coordinated on behalf
of the Electing Holders and the other parties entitled thereto by one
counsel designated by and on behalf of the Electing Holders and other
parties;
(ii) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, make such representations and warranties to the
Managing Underwriters, in form, substance and scope as are customarily made
by Shire to underwriters in primary underwritten offerings of equity and
convertible debt securities and covering matters customarily covered in
such offerings, including, but not limited to, those set forth in the
Purchase Agreement;
(iii) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, obtain opinions of counsel to the Company and Shire
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters) addressed to the
underwriters, covering such matters as are customarily covered in opinions
requested in primary underwritten offerings of equity and convertible debt
securities (it being agreed that the matters to be covered by such opinions
shall include, without limitation, as of the date of the opinion and as of
the Effective Time of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from the
Shelf Registration Statement and the Prospectus, including the documents
incorporated by reference therein, of an untrue statement of a material
fact or the omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading;
(iv) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, obtain "cold comfort" letters and updates thereof from
the independent public accountants of Shire and the Company (and, if
necessary, from the independent public accountants of any subsidiary of
Shire or of any business acquired by Shire for which financial statements
and financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to the underwriters, in customary form
and
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covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings; and
(v) in connection with any underwritten offering conducted pursuant to
Section 6 hereof, deliver such documents and certificates as may be
reasonably requested by the Managing Underwriters, if any, including,
without limitation, certificates to evidence compliance with Section 3(j)
hereof and with any conditions contained in the underwriting agreement or
other agreements entered into by the Company.
(q) Shire will use its reasonable best efforts to cause the Ordinary Shares
issuable upon conversion of the Securities to be listed on the London Stock
Exchange, the Luxembourg Stock Exchange or other stock exchange or trading
system on which the Ordinary Shares primarily trade.
(r) In the event that any broker-dealer registered under the Exchange Act
shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD Rules (or any
successor provision thereto)) of the Company or Shire or has a "conflict of
interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor
provision thereto)) and such broker-dealer shall underwrite, participate as a
member of an underwriting syndicate or selling group or assist in the
distribution of any Registrable Securities covered by the Shelf Registration
Statement, whether as a Holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company and Shire shall assist such broker-dealer in
complying with the requirements of the NASD Rules, including, without
limitation, by (i) engaging a "qualified independent underwriter" (as defined in
Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to
participate in the preparation of the registration statement relating to such
Registrable Securities, to exercise usual standards of due diligence in respect
thereto and to recommend the public offering price of such Registrable
Securities, (ii) indemnifying such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 5 hereof, and
(iii) providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the NASD Rules.
(s) Each of the Company and Shire shall use its reasonable best efforts to
take all other steps necessary to effect the registration, offering and sale of
the Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. Registration Expenses. Except as otherwise provided in Section 3, the
Company and Shire, jointly and severally, shall bear all fees and expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 6 hereof and shall bear or reimburse the Electing Holders for the
reasonable fees and disbursements of Cleary, Gottlieb, Xxxxx & Xxxxxxxx to act
as counsel therefor in connection therewith, which fees and disbursements shall
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not in the aggregate exceed $50,000. Each Electing Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Electing Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company and Shire,
jointly and severally, shall indemnify and hold harmless each Electing Holder
and each underwriter, selling agent or other securities professional, if any,
which facilitates the disposition of Registrable Securities, and each of their
respective officers and directors and each person who controls such Electing
Holder, underwriter, selling agent or other securities professional within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(each such person being sometimes referred to as an "Indemnified Person")
against any losses, claims, damages or liabilities, joint or several, to which
such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) ("losses") arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Shelf
Registration Statement under which such Registrable Securities are to be
registered under the Securities Act, or any Prospectus contained therein or
furnished by the Company or Shire to any Indemnified Person, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and the Company hereby agrees to reimburse
such Indemnified Person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that neither the Company nor
Shire shall be liable to any such Indemnified Person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such Shelf Registration Statement or Prospectus, or amendment
or supplement, in reliance upon and in conformity with written information
furnished to Shire by such Indemnified Person expressly for use therein; and
provided further, however, that neither the Company nor Shire shall be liable
for losses arising out of or based upon an untrue statement or alleged untrue
statement of a material fact contained in a preliminary Prospectus delivered to
an Indemnified Person if (i) the untrue statement contained in the preliminary
Prospectus is specifically cured in the final Prospectus, (ii) the final
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale, (iii) the Company or Shire provided the Indemnified Person
with copies of the final Prospectus on a timely basis and (iv) the Indemnified
Person failed to deliver a final Prospectus prior to the written confirmation of
sale.
(b) Indemnification by the Electing Holders and any Agents and
Underwriters. Each Electing Holder agrees, as a consequence of the inclusion of
any of such Electing Holder's
13
Registrable Securities in such Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company,
Shire, and each of their directors, officers who sign any Shelf Registration
Statement and each person, if any, who controls the Company or Shire within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities to which the Company,
Shire or such other persons may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in such Shelf Registration
Statement or Prospectus, or any amendment or supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Electing Holder, underwriter, selling agent or other securities
professional expressly for use therein, and (ii) reimburse the Company and Shire
for any legal or other expenses reasonably incurred by the Company and Shire,
respectively, in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this Section 5, notify such indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 5. In case any such
action shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party under this Section 5 for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation unless such indemnified party shall have
reasonably concluded that there may be defenses available to it that are
different from or additional to those available to one or all of the
indemnifying parties, in which case the indemnifying party's liability for the
fees and expenses of the indemnified party's counsel shall continue. No
indemnifying party shall, without the
14
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 5 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Electing Holders and any underwriters,
selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of principal amount
of Registrable Securities registered or underwritten, as the case may be, by
them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event will
any (i) Electing Holder be required to undertake liability to any person under
this Section 5 for any amounts in excess of the dollar amount of the proceeds to
be received by such Holder from the sale of such Holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to any Shelf Registration Statement under which such
15
Registrable Securities are to be registered under the Securities Act and (ii)
underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such underwriter, selling
agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.
(f) The obligations of the Company and Shire under this Section 5 shall be
in addition to any liability which they may otherwise have to any Indemnified
Person and the obligations of any Indemnified Person under this Section 5 shall
be in addition to any liability which such Indemnified Person may otherwise have
to the Company or Shire. The remedies provided in this Section 5 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
6. Underwritten Offering. Any Holder of Registrable Securities who desires
to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering, subject to the prior approval of Shire in its sole
discretion; provided that (i) the Electing Holders of at least 33-1/3% in
aggregate principal amount of the Registrable Securities then covered by the
Shelf Registration Statement shall request such an offering and (ii) at least
such aggregate principal amount of such Registrable Securities shall be included
in such offering. Upon receipt of such a request, the Company or Shire shall
provide all Holders of Registrable Securities written notice of the request,
which notice shall inform such Holders that they have the opportunity to
participate in the offering. In any such underwritten offering, the investment
banker or bankers and manager or managers that will administer the offering will
be selected by, and the underwriting arrangements with respect thereto
(including the size of the offering) will be approved by, the holders of a
majority of the Registrable Securities to be included in such offering;
provided, however, that such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to Shire. No Holder may participate
in any underwritten offering contemplated hereby unless (a) such Holder agrees
to sell such Holder's Registrable Securities to be included in the underwritten
offering in accordance with any approved underwriting arrangements, (b) such
Holder completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements, and (c) if
such Holder is not then an Electing Holder, such Holder returns a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(a)(ii) hereof within a reasonable amount of time before such underwritten
offering. The Holders participating in any underwritten offering shall be
responsible for any underwriting discounts and commissions and fees and, subject
to Section 4 hereof, expenses of their own counsel. The Company and Shire shall
pay all expenses customarily borne by issuers in an underwritten offering,
including but not limited to filing fees, the fees and disbursements of their
counsel and independent public accountants and any printing expenses incurred in
connection with such underwritten offering. Notwithstanding any of the foregoing
or the provisions of Section 3(n) hereof, upon receipt of a request from the
16
managing Underwriters or a representative of holders of a majority of the
Registrable Securities to be included in an underwritten offering to prepare and
file an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company and Shire
may delay the filing of any such amendment or supplement for up to 90 day if
Shire possesses material non-public information (i), the disclosure of which
would have a material adverse effect on Shire and its subsidiaries taken as a
whole, or (ii) relating to a previously undisclosed proposed or pending
transaction and, in Shire's reasonable belief, its disclosure would impede
Shire's ability to consummate such transaction. The Company's and Shire's
obligations under this Section 6 shall be joint and several.
7. Liquidated Damages.
(a) Pursuant to Section 2(a) hereof, Shire may, upon written notice to all
the Holders, postpone having the Shelf Registration Statement declared effective
for a reasonable period not to exceed 90 days if it possesses material
non-public information, the disclosure of which would have a material adverse
effect on Shire and its subsidiaries taken as a whole. Notwithstanding any such
postponement, if (i) on or prior to the 90th day following the Closing Date, a
Shelf Registration Statement has not been filed with the Commission or (ii) on
or prior to the 180th day following the Closing Date, such Shelf Registration
Statement is not declared effective by the Commission (each, a "Registration
Default"), the Company and Shire shall be required to pay liquidated damages
("Liquidated Damages"), from and including the day following such Registration
Default until such Shelf Registration Statement is either so filed or so filed
and subsequently declared effective, as applicable, at a rate per annum equal to
an additional one-quarter of one percent (0.25%) of the principal amount of
Registrable Securities, to and including the 90th day following such
Registration Default and one-half of one percent (0.5%) thereof from and after
the 91st day following such Registration Default.
(b) In the event that the Shelf Registration Statement ceases to be
effective (or the Holders of Registrable Securities are otherwise prevented or
restricted by the Company or Shire from effecting sales pursuant thereto) (an
"Effective Failure") for more than 45 days or, if Shire has received the prior
written consent of the Representatives pursuant to Section 2(c), 60 days,
whether or not consecutive, in any 90-day period, or for more than 90 days,
whether or not consecutive, during any 12-month period, then the Company and
Shire shall pay Liquidated Damages at a rate per annum equal to an additional
one-half of one percent (0.5%) of the principal amount of Registrable Securities
from the 46th day or 61st day, respectively, of the applicable 90-day period or
the 91st day of the applicable 12-month period, as the case may be, that such
Shelf Registration Statement ceases to be effective (or the Holders of
Registrable Securities are otherwise prevented or restricted by the Company or
Shire from effecting sales pursuant thereto) until the earlier of (i) the time
the Shelf Registration Statement again becomes effective or the Holders of
Registrable Securities are again able to make sales under the Shelf Registration
Statement or (2) the time the Effectiveness Period expires. For the purpose of
17
determining an Effective Failure, days on which the Company and Shire have been
obligated to pay Liquidated Damages in accordance with the foregoing in respect
of a prior Effective Failure within the applicable 90-day or 12-month period, as
the case may be, shall not be included.
(c) In the event the Company and Shire fail to file a post-effective
amendment to the Shelf Registration Statement, or the post-effective amendment
is not declared effective, within the periods required by Section 3, the Company
and Shire shall pay Liquidated Damages at a rate per annum equal to an
additional one-half of one percent (0.5%) of the principal amount of Registrable
Securities from and including the date of such Registration Default until such
time as such Registration Default is cured.
(d) Any amounts to be paid as Liquidated Damages pursuant to paragraph (a),
(b) or (c) of this Section 7 shall be paid semi-annually in arrears, with the
first semi-annual payment due on the first Interest Payment Date (as defined in
the Indenture), as applicable, following the date of such Registration Default.
Such Liquidated Damages will accrue (1) in respect of the Securities at the
rates set forth in paragraph (a), (b) or (c) of this Section 7, as applicable,
on the principal amount of the Securities and (2) in respect of the Ordinary
Shares issued in exchange for Preference Shares, at the rates set forth in
paragraph (a), (b) or (c) of this Section 7, as applicable, applied to the
Exchange Price (as defined in the Restated Memorandum and Articles of
Association of the Company) at that time.
(e) Except as provided in Section 8(b) hereof, the Liquidated Damages as
set forth in this Section 7 shall be the exclusive monetary remedy available to
the Holders of Registrable Securities for such Registration Default or Effective
Failure. In no event shall the Company and Shire in the aggregate be required to
pay Liquidated Damages in excess of one-half of one percent (0.5%) per annum,
regardless of whether one or multiple Registration Defaults exist. The Company's
and Shire's liability under this Section 7 shall be joint and several.
8. Miscellaneous.
(a) Other Registration Rights. Shire may grant registration rights that
would permit any person that is a third party the right to piggy-back on any
Shelf Registration Statement, provided that if the Managing Underwriter of any
underwritten offering conducted pursuant to Section 6 hereof notifies Shire and
the Electing Holders that the total amount of securities which the Electing
Holders and the holders of such piggy-back rights intend to include in any Shelf
Registration Statement is so large as to materially threaten the success of such
offering (including the price at which such securities can be sold), then the
amount, number or kind of securities to be offered for the account of holders of
such piggy-back rights will be reduced to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount, number
and kind recommended by the Managing Underwriter prior to any reduction in the
amount of Registrable Securities to be included in such Shelf Registration
Statement.
18
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company or Shire fails to perform any of its
obligations hereunder and that the Purchasers and the Holders from time to time
may be irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such Holders, in addition to any other remedy to which they may
be entitled at law or in equity and without limiting the remedies available to
the Electing Holders under Section 7 hereof, shall be entitled to compel
specific performance of the obligations of the Company or Shire, respectively,
under this Registration Rights Agreement in accordance with the terms and
conditions of this Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) Amendments and Waivers. This Agreement, including this Section 8(c),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed by the Company, Shire
and the holders of a majority in aggregate principal amount of Registrable
Securities then outstanding. Each Holder of Registrable Securities outstanding
at the time of any such amendment, waiver or consent or thereafter shall be
bound by any amendment, waiver or consent effected pursuant to this Section
8(c), whether or not any notice, writing or marking indicating such amendment,
waiver or consent appears on the Registrable Securities or is delivered to such
Holder.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be given as provided in the Indenture.
(e) Parties in Interest. The parties to this Agreement intend that all
Holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
19
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(j) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto 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
Electing Holder, any director, officer or partner of such Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such Holder.
20
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
Shire Finance Limited
By: /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Director
Shire Pharmaceuticals Group plc
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive
Accepted as of the date hereof:
Bear, Xxxxxxx International Limited
By:/s/ Xxxxxxx Parish
------------------------------------
Xxxxxxx Xxxxx International
By: /s/ Eoghainn Calder
----------------------------------
21
Appendix A
Shire Finance Limited
Shire Pharmaceuticals Group plc
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the 2% Senior Guaranteed
Convertible Notes due 2011 (the "Securities") of Shire Finance Limited (the
"Company") guaranteed by Shire Pharmaceuticals Group plc ("Shire") are held.
The Company and Shire are in the process of registering the Securities
under the Securities Act of 1933 for resale by the beneficial owners thereof. In
order to have their Securities included in the registration statement,
beneficial owners must complete and return the enclosed Notice of Registration
Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of
the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [Deadline for response]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact the Company
Secretary, c/o Hampshire International Business Park, Xxxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx XX00 0XX, telephone: x00 0000 000 000.
A-1
Shire Finance Limited
Notice of Registration Statement
and
Selling Securityholder Questionnaire
[Date]
Shire Finance Limited (the "Company") and Shire Pharmaceuticals Group plc
("Shire") have filed with the United States Securities and Exchange Commission
(the "Commission") a registration statement on Form F-3 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the United States
Securities Act of 1933, as amended (the "Securities Act"), of the Company's 2%
Senior Guaranteed Convertible Notes due 2011 (the "Securities") convertible into
exchangeable redeemable preference shares of the Company (the "Preference
Shares") and the Ordinary Shares of Shire, par value $___ per share (the
"Ordinary Shares"), issuable in exchange therefore, in accordance with the
Registration Rights Agreement, dated as of August 21, 2001 (the "Registration
Rights Agreement"), among Shire, the Company and the purchasers named therein.
The Ordinary Shares will be issued in the form of ordinary shares or American
Depositary Shares ("ADSs"). A copy of the Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Registration Rights Agreement.
In order to have Registrable Securities included in the Shelf Registration
Statement (or a supplement or amendment thereto), this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
1
The term "Registrable Securities" is defined in the Registration Rights
Agreement to mean all or any portion of the Securities issued from time to time
under the Indenture in registered form and the Ordinary Shares (including the
Ordinary Shares underlying the ADSs) issuable in exchange for Preference Shares;
provided, however, that a security ceases to be a Registrable Security when it
is no longer a Restricted Security.
The term "Restricted Security" is defined in the Registration Rights
Agreement to mean any Security or Ordinary Share issuable in exchange for
Preference Shares except any such Security or Ordinary Share which (i) has been
effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto) by a non-Affiliate, or (iii) has otherwise been
transferred and a new Security or Ordinary Share not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.5 of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 5 of the Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and the Trustee the Notice of Transfer (completed and signed) set forth in
Exhibit 1 to this Notice and Questionnaire.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
2
QUESTIONNAIRE
(1) (a)Full Legal Name of Selling Securityholder:
_______________________________________________________________________
(b)Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) Below:
________________________________________________________________________
(c)Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
Item (3) Below are Held:
________________________________________________________________________
(2) Address for Notices to Selling Securityholder:
---------------------------------------
---------------------------------------
---------------------------------------
Telephone:
---------------------------------------
Fax:
---------------------------------------
Contact Person:
---------------------------------------
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned Selling
Securityholder does not beneficially own any Securities or Ordinary
Shares issued upon conversion, repurchase or redemption of any
Securities.
(a) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned:____________________
CUSIP No(s). of such Registrable Securities:__________________________
Number of Ordinary Shares (if any) issued upon conversion, repurchase
or redemption of Registrable Securities:____________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
CUSIP No(s). of such other Securities:______________________________
Number of Ordinary Shares (if any) issued upon conversion of such
other Securities:_____________________________________________________
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:____________
3
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:_________________________________________
Number of Ordinary Shares (if any) issued upon conversion of
Registrable Securities which are to be included in the Shelf
Registration Statement:_______________________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any
Ordinary Shares or any other securities of the Company, other than the
Securities and Ordinary Shares listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registrable
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities
to close out such short
4
positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
prospectus delivery and other provisions of the Securities Act and the Exchange
Act and the rules and regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(a) of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail or air courier
guaranteeing overnight delivery as follows:
(i) To the Company: Shire Finance Limited
x/x Xxxxxx xxx Xxxxxx
Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxx Xxxx
Grand Cayman, Cayman Islands
Attn: Directors/F.O.E.
5
(ii) With a copy to: Shire Pharmaceuticals Group plc
Hampshire International Business Park
Xxxxxxxx, Xxxxxxxxxxx
Xxxxxxxxx XX00 0XX
England
Attn: Company Secretary
(iii) And a copy to: Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X.X.
Attn: Xxxx Xxxxxxxx
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above). This Agreement shall be governed in all respects by the laws of the
State of New York.
6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
----------------------------
--------------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:
---------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY AT:
Shire Finance Limited
x/x Xxxxxx xxx Xxxxxx
Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxx Xxxx
Grand Cayman, Cayman Islands
Attention: Directors/F.O.E.
WITH A COPY TO:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X.X.
Attn: Xxxx Xxxxxxxx
7
Exhibit I
to Appendix A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Shire Finance Limited
x/x Xxxxxx xxx Xxxxxx
Xxxxxx Xxxxx
X.X. Xxx 000
Xxxxxx Xxxx
Grand Cayman, Cayman Islands
Attention: Directors/F.O.E.
Shire Pharmaceuticals Group plc
Hampshire International Business Park
Xxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx
Xxxxxxx XX00 0XX
Attention: Company Secretary
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 X.X.X.
Attention: Xxxx Xxxxxxxx
The Bank of New York
One Canada Square
Xxxxxx
Xxxxxxx X00 0XX
Attention: Sunjeeve X. Xxxxx
Re: 2% Senior Guaranteed Convertible Notes due 2011
(the "Notes") Convertible into Preference
Shares of Shire Finance Limited (the "Company")
Dear Sirs:
Please be advised that _____________________ has transferred $___________
aggregate principal amount of the above-referenced Notes or Ordinary Shares of
Shire Pharmaceuticals Group plc ("Shire") issued in exchange for Preference
Shares, pursuant to an effective Registration Statement on Form F-3 (File No.
333-____) filed by the Company and Shire.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the Notes
or Ordinary Shares is named as a selling securityholder in the Prospectus dated
[date], or in amendments or supplements thereto, and that the aggregate
principal amount of the Notes or number of Ordinary Shares transferred are [a
portion of] the Notes or Ordinary Shares listed in such Prospectus as amended or
supplemented opposite such owner's name.
I-1
Dated:
Very truly yours,
------------------------
(Name)
By: ________________________
(Authorized Signature)
I-2
