ABBVIE INC and SHIRE PLC

Exhibit 2.2

 

 

 

18 July 2014

 

 

ABBVIE INC

 

and

 

SHIRE PLC

 

 

 

CO-OPERATION AGREEMENT

 

 

 

Xxxxxxx Xxxxx Freehills LLP

 

1


 

TABLE OF CONTENTS

 

Clause

 

Headings

 

Page

 

 

 

 

 

1.

 

UNDERTAKINGS TO IMPLEMENT THE MERGER AND OBTAIN CLEARANCES

 

1

 

 

 

 

 

2.

 

ESTABLISHMENT OF NEW ABBVIE, MERGER STRUCTURE AND ADVERSE RECOMMENDATION CHANGE

 

4

 

 

 

 

 

3.

 

DOCUMENTATION

 

6

 

 

 

 

 

4.

 

IMPLEMENTATION OF THE SCHEME

 

7

 

 

 

 

 

5.

 

EMPLOYEE AND SHARE PLAN ARRANGEMENTS

 

7

 

 

 

 

 

6.

 

CONDUCT OF BUSINESS

 

7

 

 

 

 

 

7.

 

BREAK FEE

 

8

 

 

 

 

 

8.

 

DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE

 

10

 

 

 

 

 

9.

 

SWITCHING TO AN OFFER

 

11

 

 

 

 

 

10.

 

TERMINATION

 

11

 

 

 

 

 

11.

 

WARRANTIES

 

12

 

 

 

 

 

12.

 

MISCELLANEOUS PROVISIONS

 

13

 

 

 

 

 

13.

 

GOVERNING LAW AND JURISDICTION

 

16

 

 

 

 

 

14.

 

AGENT FOR SERVICE OF PROCESS

 

16

 

 

 

 

 

SCHEDULE 1

 

DEFINITIONS AND INTERPRETATION

 

17

 

 

 

 

 

SCHEDULE 2

 

PRESS ANNOUNCEMENT

 

22

 

 

 

 

 

SCHEDULE 3

 

EMPLOYEE AND SHARE PLAN ARRANGEMENTS

 

22

 

 

 

 

 

EXHIBIT A

 

AGREEMENT AND PLAN OF MERGER

 

28

 

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THIS AGREEMENT is made on 18 July, 2014

 

BETWEEN:

 

(1)                                ABBVIE INC. a Delaware corporation whose registered office in the State of Delaware is at c/o The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, X.X.X. (“AbbVie”); and

 

(2)                                SHIRE PLC a company incorporated in Jersey (registered number 99854) and whose registered office is at 00 Xxxxxxxxx Xxxxxx, Xx Xxxxxx, Xxxxxx, XX0 0XX (“Shire”),

 

together referred to as the “Parties” and each as a “Party” to this Agreement.

 

RECITALS:

 

(A)                              AbbVie and Shire intend to effect the Merger on the terms and subject to the conditions set out in the Press Announcement.

 

(B)                              The Parties intend the Merger to be implemented as set out in the Press Announcement, currently anticipated to involve a scheme of arrangement under Article 125 of the Jersey Companies Law and a merger pursuant to the Delaware General Corporation Law and the Delaware Limited Liability Act.

 

(C)                              AbbVie, New AbbVie and Merger Sub have executed and delivered an agreement and plan of merger, dated as of the date hereof.

 

(D)                              The Parties have agreed to enter into this Agreement to set out certain mutual commitments to regulate the basis on which they are willing to implement the Merger.

 

IT IS AGREED as follows:

 

1.                                     UNDERTAKINGS TO IMPLEMENT THE MERGER AND OBTAIN CLEARANCES

 

Regulatory Conditions

 

1.1                              Except where Shire is required by law to make its own separate filing, and subject to the provisions of Clause 1.3, AbbVie shall be responsible for contacting and corresponding with the relevant Regulatory Authorities in relation to the Regulatory Conditions and the Clearances related to the Regulatory Conditions, including preparing and submitting all necessary filings, notifications and submissions as soon as reasonably practicable. AbbVie shall consult with Shire to the extent reasonably practicable and keep Shire updated as to progress towards the satisfaction of the Regulatory Conditions, including by taking the steps set out below.

 

1.2                              Shire undertakes to cooperate with AbbVie in relation to the Regulatory Conditions and to assist AbbVie in communicating with any Regulatory Authority in relation to the Clearances and promptly to provide such information and assistance to AbbVie as AbbVie may reasonably require for the purposes of obtaining any Clearance and making a submission, filing or notification to any relevant Regulatory Authority as soon as reasonably practicable.

 

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Undertakings to satisfy the Conditions

 

1.3                              AbbVie undertakes to Shire to:

 

1.3.1                              where reasonably requested by Shire, provided that, in AbbVie’s reasonable opinion, it is practicable to do so, and except to the extent that to do so (i) would lead to legal privilege being lost or waived; or (ii) is prohibited by the relevant Regulatory Authority or by Law:

 

(A)                              provide, or procure the provision of, to Shire (or its nominated advisers) draft copies of all material filings, notifications, submissions and communications to be made to:

 

(i)                 the European Commission or the US Federal Trade Commission by or on behalf of AbbVie in relation to obtaining any Clearance; and

 

(ii)              any other Regulatory Authority by or on behalf of AbbVie in relation to obtaining any Clearance where the approach taken by AbbVie in relation to such filing, notification, submission or communication differs materially from the approach to be taken in the filings, notifications, submissions and communications to be made by AbbVie in relation to obtaining the Clearances referred to in Clause 1.3.1(A)(i),

 

at such time as will allow Shire a reasonable opportunity to provide comments on such filings, notifications, submissions and communications before they are submitted or sent;

 

(B)                              have regard in good faith to comments made by Shire on the filings, notifications, submissions and communications provided to Shire pursuant to Clause 1.3.1(A) and to take into account such comments as AbbVie determines, in good faith, are reasonable;

 

(C)                              provide Shire (or such nominated advisers) with copies of all material filings, notifications, submissions and communications in the form submitted or sent to any Regulatory Authority by or on behalf of AbbVie in relation to obtaining any Clearances; and

 

(D)                              give Shire reasonable prior notice of and allow persons nominated by Shire to attend all material meetings and telephone calls with any Regulatory Authority in connection with the obtaining of all requisite Clearances and, with the prior consent of AbbVie (such consent not to be unreasonably withheld), to make reasonable oral submissions during such meetings and telephone calls; and

 

1.3.2                              except to the extent that to do so is prohibited by the relevant Regulatory Authority or by Law, promptly notify Shire (or its nominated advisers) of and provide copies of any material communications from any Regulatory Authority in relation to obtaining any Clearances; and

 

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1.4                              Shire undertakes to AbbVie to:

 

1.4.1                              where reasonably requested by AbbVie and except to the extent that to do so (i) would lead to legal privilege being lost or waived; or (ii) is prohibited by the relevant Regulatory Authority or by Law:

 

(A)                              provide, or procure the provision of, to AbbVie (or its nominated advisers) draft copies of all filings, notifications, submissions and communications to be made to any Regulatory Authority by or on behalf of Shire, if any, in relation to obtaining any Clearance, at such time as will allow AbbVie a reasonable opportunity to provide comments on such filings, notifications, submissions and communications before they are submitted or sent;

 

(B)                              have regard in good faith to comments made by AbbVie on the filings, notifications, submissions and communications provided to AbbVie pursuant to Clause 1.4.1(A) and to take into account such comments as are reasonable;

 

(C)                              provide AbbVie (or such nominated advisers) with copies of all material filings, notifications, submissions and communications in the form submitted or sent to any Regulatory Authority by or on behalf of Shire in relation to obtaining any Clearances; and

 

(D)                              give AbbVie reasonable prior notice of and allow persons nominated by AbbVie to attend all meetings and telephone calls with any Regulatory Authority in connection with the obtaining of all requisite Clearances and to make oral submissions during such meetings and telephone calls; and

 

1.4.2                              except to the extent that to do so is prohibited by the relevant Regulatory Authority or by Law, promptly notify AbbVie (or its nominated advisers) of and provide copies of any communications from any Regulatory Authority in relation to obtaining any Clearances.

 

Undertakings to implement the Acquisition

 

1.5                              AbbVie undertakes to Shire to:

 

1.5.1                              co-operate with Shire and its advisers to take all such steps as are reasonably necessary to implement the Acquisition in substantially in the form contemplated by the Press Announcement; and

 

1.5.2                              keep Shire informed of the progress towards satisfaction (or otherwise) of the Regulatory Conditions and, if AbbVie is, or becomes, aware of any matter which might reasonably be considered to be material in the context of the satisfaction or waiver of any of the Conditions, AbbVie will as soon as reasonably practicable make the substance of any such matter known to Shire and, so far as it is aware of the same, provide such details and further information as Shire may reasonably request.

 

1.6                              Shire undertakes to AbbVie to keep it informed of the progress towards satisfaction (or otherwise) of the Regulatory Conditions and, if Shire is, or becomes, aware of any matter which might reasonably be considered to be material in the context of the satisfaction or waiver of any of the Regulatory Conditions, Shire will as soon as reasonably practicable make the substance of any such matter known to AbbVie and, so far as it is aware of the same, provide such details and further information as AbbVie may reasonably request.

 

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Qualifications

 

1.7                              Nothing in Clauses 1.1 to 1.6 inclusive shall require either Party to disclose any competitively sensitive or confidential information or business secrets which have not been previously disclosed to the other Party, in which case this information is to be communicated between AbbVie’s and Shire’s advisers on an “external adviser only” basis (a non-confidential version of the relevant filing, notification, submission or communication being provided to the other).

 

1.8                              Nothing in Clauses 1.1 to 1.6 inclusive shall require the Parties to offer to any Regulatory Authority, accept or agree any undertakings, commitments, conditions, modifications or remedies, whether involving divestments or disposals or constraints on prices or other behaviour or otherwise, in order to obtain the satisfaction of the Regulatory Conditions.

 

2.                                     ESTABLISHMENT OF NEW ABBVIE, MERGER STRUCTURE AND ADVERSE RECOMMENDATION CHANGE

 

2.1                              AbbVie undertakes to Shire to:

 

(A)                                        as promptly as reasonably practicable, prepare and file a Registration Statement on Form S-4 to be filed with the United States Securities and Exchange Commission in connection with the issuance of the New AbbVie Shares in the US Merger (including the proxy statement and prospectus constituting a part thereof) (the “Proxy Statement/Prospectus”), if Shire provides all cooperation reasonably requested by AbbVie in connection therewith.  Subject to clause 2.3, the Proxy Statement/Prospectus shall include the AbbVie Recommendation.  AbbVie shall use their reasonable efforts to cause the Proxy Statement/Prospectus to become effective under the 1933 Act as soon after such filing as practicable and to keep the Proxy Statement/Prospectus effective as long as is necessary to consummate the Acquisition and the US Merger, if Shire provides all cooperation reasonably requested by AbbVie in connection therewith.  Where the Acquisition is being implemented by way of a scheme, AbbVie undertakes that it will use its reasonable efforts to cause all New AbbVie Shares issued on completion of the Scheme to Shire Shareholders to be issued in reliance on the exemption from the registration requirements of the 1933 Act, provided by Section 3(a)(10) of the 1933 Act and in reliance on exemptions from registration under state “blue sky” or securities laws if Shire provides all cooperation reasonably requested by AbbVie in connection therewith.

 

(B)                                        cause a meeting of its shareholders (the “AbbVie Shareholders Meeting”) to be duly called and held no later than 40 days after the Proxy Statement/Prospectus is declared effective under the 0000 Xxx) for the purpose of voting on the Delaware Merger Agreement and AbbVie shall not, without the prior written consent of Shire, adjourn or postpone the AbbVie Shareholders Meeting; provided that AbbVie may, without the prior written consent of Shire, adjourn or postpone the AbbVie Shareholders Meeting (a) if as of the time for which the AbbVie Shareholders Meeting is originally scheduled (as set forth in the definitive Proxy Statement/Prospectus) there are insufficient AbbVie Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the AbbVie Shareholders Meeting, (b) after consultation with Shire, if

 

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the failure to adjourn or postpone the AbbVie Shareholders Meeting would reasonably be expected to be a violation of applicable Law for the distribution of any required supplement or amendment to the Proxy Statement/Prospectus, (c) after consultation with Shire, for a single period not to exceed ten Business Days, to solicit additional proxies if necessary to obtain the AbbVie Shareholder Approval, or (d) if necessary, due to an adjournment of the Shire Meetings but without prejudice to Condition 1(a), to ensure that the AbbVie Shareholders Meeting is held immediately before the Scheme Meeting.  Shire may once require AbbVie to adjourn, delay or postpone the AbbVie Shareholders Meeting  for a period not to exceed 10 business days (but such period shall end prior to the date that is two Business Days prior to the Long Stop Date) to solicit additional proxies necessary to obtain the AbbVie Shareholder Approval. In connection with the AbbVie Shareholders Meeting, the board of Directors of AbbVie shall (A) subject to clause 2.3, (1) recommend the adoption of the Delaware Merger Agreement by the holders of AbbVie Shares (the “AbbVie Recommendation”) and (2) use its reasonable best efforts to obtain the AbbVie Shareholder Approval and (B) otherwise comply with all legal requirements applicable to such meeting.  Once Shire has established a record date for the Shire Meetings, AbbVie shall not change the record date or establish a different record date for the AbbVie Shareholders Meeting without the prior written consent of Shire, unless required to do so by applicable Law or AbbVie’s organizational documents. Without the prior written consent of Shire, the approval of the Delaware Merger Agreement shall be the only matter (other than matters of procedure and matters required by applicable Law to be voted on by AbbVie’s stockholders in connection with the approval of the Delaware Merger Agreement) that AbbVie shall propose to be acted on by AbbVie’ stockholders at the AbbVie Shareholders Meeting;

 

(C)                                        cause the AbbVie Shareholders Meeting to be held prior to the Shire Meetings and, in relation thereto, it being acknowledged and agreed that AbbVie shall not be able to invoke Conditions 1(a) or 1(b) where the applicable meetings have not been held by the applicable Long Stop Date solely as a result of the AbbVie Shareholders Meeting not yet having been held (including as a result of any adjournment, delay or postponement contemplated by Clause 2.1(B));

 

(D)                                        procure that the New AbbVie Shares to be issued to: (i) Shire Shareholders pursuant to the Scheme (or the Offer, as the case may be); and (ii) the holders of AbbVie Shares pursuant to the US Merger, shall rank pari passu, save to the extent expressly provided otherwise in the Press Announcement or as otherwise agreed between the Parties;

 

(E)                                         procure that the terms of the US Merger shall be such that AbbVie stockholders shall exchange one AbbVie Share for one New AbbVie Share;

 

(F)                                          immediately following the Acquisition becoming Effective and the Shire Shareholders being entered in the register of members of New AbbVie in accordance with the Scheme Order, implement the US Merger in accordance with the Delaware Merger Agreement;

 

(G)                                        procure that New AbbVie adopts new articles of association, with effect from the Effective Date, appropriate for a company listed on the New York Stock Exchange with one class of listed securities in issue and which follow in all material respects the existing governance arrangements of AbbVie, save as, in

 

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the reasonable opinion of AbbVie, reasonably required to be modified in order appropriately to meet the laws and customs of Jersey, and provided that AbbVie will have regard in good faith to comments made by Shire on the new articles of association and will take into account such comments as AbbVie considers in good faith are reasonable and appropriate; and

 

(H)                                       shall not invoke Condition 1(b) until the date falling 10 Business Days following the date on which all of the other Conditions are satisfied or waived.

 

2.2                             Except as permitted by clause 2.3, AbbVie shall not make an AbbVie Adverse Recommendation Change.

 

2.3                              Notwithstanding clause 2.2 but subject to clause 2.4, at any time prior to the AbbVie Shareholder Approval, the board of Directors of AbbVie may make an AbbVie Adverse Recommendation Change only if the board of Directors of AbbVie determines in good faith by a majority vote, after considering advice from outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Delaware Law. Nothing contained in this Agreement shall prohibit or restrict AbbVie or the AbbVie Directors from taking and disclosing to the AbbVie stockholders a position or making a statement contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Securities Exchange Act of 1934, as amended, or other applicable Law; provided, however, that if such disclosure has the substantive effect of withdrawing or modifying in a manner adverse to the consummation of the Merger the AbbVie Recommendation, such disclosure shall be deemed to be a AbbVie Adverse Recommendation Change.

 

2.4                              The board of Directors of AbbVie shall not make an AbbVie Adverse Recommendation Change, unless AbbVie has provided Shire at least three Business Days prior notice of its intention to consider making an AbbVie Adverse Recommendation Change, attaching a reasonably detailed explanation of the reasons for the potential AbbVie Adverse Recommendation Change.

 

3.                                     DOCUMENTATION

 

3.1                              For so long as the Acquisition is to be implemented by way of the Scheme, AbbVie undertakes:

 

3.1.1                              to provide promptly to Shire all such information about itself, the AbbVie Group and the AbbVie Directors and their associates as may be required for the purpose of inclusion in the Scheme Document (“AbbVie Information”) and to provide all other assistance which may be reasonably required in connection with the preparation of the Scheme Document, including access to and ensuring reasonable assistance is provided by its professional advisers.

 

3.1.2                              to procure that the AbbVie Directors accept responsibility for all information in the Scheme Document relating to themselves, their associates, AbbVie and the AbbVie Group.

 

3.2                              If any supplemental circular or document is required to be published in connection with the Scheme or, subject to the prior written consent of AbbVie, any variation or amendment to the Scheme (a “Scheme Supplemental Document”), AbbVie shall, as soon as reasonably practicable, provide such co-operation and information (including such information as is

 

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necessary for the Scheme Supplemental Document to comply with all applicable legal and regulatory provisions) as Shire may reasonably request in order to finalise the relevant Scheme Supplemental Document (such information also being “AbbVie Information”).

 

3.3                              Where AbbVie elects to implement the Acquisition by way of an Offer, AbbVie shall prepare the Offer Document and shall consult Shire in relation thereto.  AbbVie agrees to submit, or procure the submission of drafts and revised drafts of the Offer Document to Shire for review and comment and, upon reasonable request and where necessary, to discuss any comments with Shire for the purposes of preparing revised drafts.  AbbVie agrees to seek Shire’s approval of the contents of the Shire Information in the Offer Document before it is posted or published, and to afford Shire sufficient time to consider such documents, in order to give its approval (such approval not to be unreasonably withheld or delayed, but without prejudice to Shire’s ability to withdraw the Shire Recommendation).

 

4.                                     IMPLEMENTATION OF THE SCHEME

 

4.1                             Where the Acquisition is being implemented by way of the Scheme, AbbVie undertakes that before the Sanction Hearing, it shall deliver a notice in writing to Shire either: (i) confirming the satisfaction or waiver of all Conditions (other than Condition 2(c) (Court Sanction)); or (ii) confirming its intention to invoke a Condition and, if (ii), it shall as soon as reasonably practicable following such event or circumstance provide reasonable details of the event which has occurred, or circumstance which has arisen, which AbbVie reasonably considers is sufficiently material for the Panel to permit AbbVie to invoke any of the Conditions.

 

4.2                              AbbVie shall, and shall procure that New AbbVie shall, subject to the provisions of this Agreement and the satisfaction or waiver of all Conditions, agree to be bound by and consent to the implementation of the Scheme. For this purpose, AbbVie shall instruct counsel to appear on its behalf at the Sanction Hearing and undertake to the Court to be bound by the terms of the Scheme.

 

5.                                     EMPLOYEE AND SHARE PLAN ARRANGEMENTS

 

The provisions of Schedule 3 will apply in relation to Shire employees and share plans.

 

6.                                     CONDUCT OF BUSINESS

 

6.1                              Except as expressly contemplated by this Agreement, as consented to in writing by Shire (such consent not to be unreasonably withheld, conditioned or delayed) or as required by applicable Law, from the date hereof until the Effective Date, AbbVie shall not:

 

6.1.1                              authorise or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, stock or other securities of AbbVie except AbbVie may (A) continue to pay dividends in the ordinary course and consistent with its existing dividend policy (including as to amount) and timetable and (B) pay dividends and distributions with a record date after the Effective Date; and

 

6.1.2                              split, combine or reclassify any of its capital stock, or issue or authorise the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for (A) (unless such transaction would be reasonably expected to have material adverse tax consequences to New

 

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AbbVie and its Subsidiaries after the Effective Date) any such transaction by a wholly owned Subsidiary of AbbVie which remains a wholly owned Subsidiary after consummation of such transaction, (B) any such action in respect of New AbbVie’s capital stock in furtherance of the Merger, and (C) grants of AbbVie Options and AbbVie Share Awards in the ordinary course of business consistent with past practice;

 

6.1.3                              other than at arms’ length terms, directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for transactions among AbbVie and its wholly owned Subsidiaries or among AbbVie’s wholly owned Subsidiaries (unless such transaction would be reasonably expected to have material adverse tax consequences to New AbbVie and its Subsidiaries after the Effective Date);

 

6.1.4                              shall not amend the AbbVie organizational documents in any manner that would have a material and adverse impact on the value of the New AbbVie Shares;

 

6.1.5                              other than in the ordinary course of business and consistent with past practice and in each case other than in relation to employee benefits, issue or grant or authorise the issuance or grant of any shares of its capital stock, voting securities or other equity interest in AbbVie or any securities convertible into or exchangeable for any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares of capital stock, voting securities or equity interest (“AbbVie Securities”), that are issued, granted or authorized for issuance or grant at less than the fair market value of the relevant AbbVie Securities on the date of issuance, grant or authorization, provided, however, that for the avoidance of doubt, nothing in this Clause 6.1.5 shall prohibit (A) transactions among AbbVie and its wholly owned Subsidiaries or among AbbVie’s wholly owned Subsidiaries (B) issuances of AbbVie Shares in respect of any exercise of AbbVie Options or the vesting or settlement of AbbVie Share Awards in accordance with their terms and the applicable AbbVie Stock Plan, (C) withholding of AbbVie Shares to satisfy (x) tax obligations pertaining to the exercise of AbbVie Options or the vesting or settlement of AbbVie Share Awards or (y) the exercise price with respect to AbbVie Options and (D) grants of AbbVie Options and AbbVie Share Awards; and

 

6.1.6                              agree, resolve or commit to do any of the foregoing.

 

7.                                     BREAK FEE

 

7.1                              In consideration of Shire incurring substantial costs and expenses in preparing and negotiating the Acquisition and this Agreement, AbbVie undertakes that on the occurrence of a Break Fee Payment Event (as defined below) AbbVie will pay to Shire an amount in cash in US Dollars equal to three per cent of the product of the indicative value of the cash and shares to be delivered per Shire Share multiplied by the number of issued Shire Shares as set forth in Annex A and converted pursuant to the exchange rate set forth in Annex B (the “Break Fee”).

 

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7.2                              A “Break Fee Payment Event” shall occur in the event that at or prior to the termination of this Agreement:

 

7.2.1                              both (i) an AbbVie Adverse Recommendation Change has occurred and (ii) either (a) the AbbVie Shareholder Approval has not been obtained at the AbbVie Shareholders Meeting, or any adjournment or postponement thereof, at which a vote on the adoption of the Delaware Merger Agreement is taken (such event being an “Adverse Shareholder Vote”) or (b) a meeting of AbbVie’s stockholders at which a vote on the adoption of the Delaware Merger Agreement is proposed has not occurred on or before the date falling 60 days (such date being the “Shareholder Long Stop Date”) after the date of the AbbVie Adverse Recommendation Change or, (c) on or prior to the Shareholder Long Stop Date this Agreement terminates pursuant to clause 10.1.1 and, at the time of such termination, the AbbVie Shareholder Approval has not been received; or

 

7.2.2                              Either:

 

(A)                              on or before 30 April 2015, or such later date if any as AbbVie and Shire may agree, the Scheme (or the Offer as the case may be) is withdrawn or lapses (any such event being a “Withdrawal Event”) as a result of AbbVie or, as the case may be, New AbbVie invoking and being permitted by the Panel to invoke any Regulatory Condition; or

 

(B)                              on or before 30 April 2015, or such later date, if any, as AbbVie and Shire may agree a Withdrawal Event occurs as a result of AbbVie’s failure to waive any Regulatory Condition which is breached, unfulfilled or unsatisfied; or

 

(C)                              the European Commission has on or before 30 April, 2015, or such later date, if any, as AbbVie and Shire may agree, initiated Phase 2 European Commission Proceedings under the EU Merger Regulation or has referred (or been deemed to have referred) any part of the Merger to the Merger Control Authority of one or more Member States of the European Union under Article 9 of the EU Merger Regulation and either (a) the Scheme or Offer, as the case may be, has lapsed because of the initiation of such Phase 2 European Commission Proceedings or, following an Article 9 reference to the CMA, because of a Phase 2 CMA Reference in respect of the Merger or (b) the Scheme or the Offer as the case may be, has not so lapsed but AbbVie has invoked Condition 3(d) so as to cause the Merger not to proceed.

 

7.3                              AbbVie shall pay the Break Fee to Shire within seven days of the occurrence of a Break Fee Payment Event.

 

7.4                              In the event that a Break Fee Payment Event or a Cost Reimbursement Event has occurred, Shire’s right to receive the Break Fee or Cost Reimbursement Payment, as the case may be, shall be the sole and exclusive remedy of Shire against AbbVie for any and all losses and damages suffered in connection with this Agreement and the transactions and other actions contemplated by this Agreement.  In no event shall AbbVie be required to pay the Break Fee or Cost Reimbursement Payment more than once.  For the avoidance of doubt, in the event the Break Fee is paid or payable, the Cost Reimbursement Payment

 

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shall not be payable, and in the event the Cost Reimbursement Payment is paid or payable, the Break Fee shall not be payable.

 

8.                                     DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE

 

8.1                              At and after the Effective Date, New AbbVie shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director or officer of Shire or any of its Subsidiaries and each person who, while a director or officer of Shire and any of its Subsidiaries, served at the request of Shire or any of its Subsidiaries as a director, officer, trustee, employee or agent of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by Shire or any of its Subsidiaries (each, together with his or her respective heirs, executors and administrators, an “Indemnified Party”), against all costs and expenses (including advancing attorneys’ fees and expenses in advance of the final disposition of any actual or threatened claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any actual or threatened action, suit or proceeding (whether arising before, at or after the Effective Date), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in such person’s capacity as a director or officer of Shire or any of its Subsidiaries or, while a director or officer of Shire or any of its Subsidiaries, serving at the request of Shire or any of its Subsidiaries as a director, officer, trustee, employee or agent of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by Shire or any of its Subsidiaries (including actions or omissions arising out of the transactions contemplated by the Delaware Merger Agreement or this Agreement).  It is expressly agreed that the rights of each Indemnified Party under this clause 8 shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the certificates of incorporation, articles of association and bylaws (or similar governing documents) of Shire or any of its Subsidiaries.

 

8.2                              For six years after the Effective Date, New AbbVie shall honour and fulfill provisions in New AbbVie’s and each Subsidiary of New AbbVie’s certificates of incorporation, articles of association and bylaws (or in such documents of any successor to the business of the New AbbVie) existing as of the date hereof regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses with respect to matters existing or occurring at or prior to the Effective Date.

 

8.3                              With effect from the Effective Date, New AbbVie shall purchase directors’ and officers’ liability insurance cover “tail” policies for both current and former directors and officers of Shire and any of its Subsidiaries, including directors or officers who retire or whose employment is terminated as a result of the Acquisition, for acts or omissions up to and including the Effective Date, in the form of runoff cover for a period of six years following the Effective Date. Such “tail” policies shall be with reputable insurer(s) and provide cover, in terms of amount and breadth, at least as much as that provided under Shire’s directors’ and officers’ liability insurance as at the date of this Agreement; provided, however, that in no event shall New AbbVie spend or commit to spend for such “tail” policies an amount in aggregate in excess of the 300% of the annual premiums paid as of the date hereof by Shire for directors’ and officers’ liability insurance (the “Base Premium”), and if the cost of such “tail” policies exceeds such amount, New AbbVie shall obtain a policy with the greatest coverage available for an aggregate cost not exceeding the Base Premium

 

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9.                                     SWITCHING TO AN OFFER

 

9.1                              AbbVie shall be entitled, with the consent of the Panel, to implement the Acquisition by way of the Offer rather than the Scheme (such an election, a “Switch”) only where:

 

9.1.1                              Shire provides its prior written consent, in which case clause 9.2 shall apply (an “Agreed Switch”); or

 

9.1.2                              Shire makes a Shire Adverse Recommendation Change.

 

9.2                              In the event of an Agreed Switch:

 

9.2.1                              the acceptance condition to the Offer (the “Acceptance Condition”) shall be set at 90 per cent. (or such lesser percentage as may be agreed between the Parties after, to the extent necessary, consultation with the Panel, being in any case more than fifty per cent. of the Shire Shares) of the Shire Shares to which the Offer relates;

 

9.2.2                              AbbVie shall not take any actions which would cause the Offer not to proceed, to lapse or to be withdrawn in each case for non-fulfilment of the Acceptance Condition prior to the 60th day after publication of the Offer Document and AbbVie shall ensure that the Offer remains open until such time;

 

9.2.3                              AbbVie shall not waive, treat as fulfilled or otherwise amend the Acceptance Condition without the prior written consent of Shire where to do so would result in Shire Shareholders holding equal to or less than of 20% of New AbbVie upon completion of the Merger;

 

9.2.4                              AbbVie shall ensure that the only conditions of the Offer shall be the Conditions (unless the parties agree otherwise);

 

9.2.5                              AbbVie shall keep Shire informed, on a regular basis and in any event by the next Business Day following a request from Shire of the number of Shire Shareholders that have validly returned their acceptance or withdrawal forms or incorrectly completed their withdrawal or acceptance forms and the identity of such shareholders; and

 

9.2.6                              as soon as reasonably practicable following such event or circumstance, provide reasonable details of the event which has occurred or circumstance which has arisen which AbbVie considers is sufficiently material for the Panel to permit AbbVie to invoke any of the Conditions.

 

9.3                              In the event of any Switch, the Parties agree that this Agreement shall be construed as far as possible to give effect to the intentions of the Parties under this Agreement.

 

10.                              TERMINATION

 

10.1                       Subject to clause 10.4 and without prejudice to the rights of any Party that may have arisen prior to termination and except where expressly stated to the contrary the provisions of this Agreement shall terminate with immediate effect and all rights and obligations of the Parties under this Agreement shall cease forthwith, if:

 

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10.1.1                       the Scheme (or the Offer as the case may be) is withdrawn or lapses (other than where such lapse or withdrawal is a result of the exercise by AbbVie of its right to elect to implement the Acquisition by way of the Offer in compliance with clause 9 or has otherwise been followed within 2 Business Days by a Rule 2.7 announcement made by AbbVie or a person acting in concert with AbbVie to implement the Acquisition by a different offer or scheme on substantially the same or improved terms); or

 

10.1.2                       as agreed in writing between the Parties.

 

10.2                       Subject to clause 10.4 and without prejudice to the rights of any Party that may have arisen prior to termination and except where expressly stated to the contrary, AbbVie may elect to terminate this Agreement (and if it so elects the provisions of this Agreement shall terminate with immediate effect and all rights and obligations of the Parties under this Agreement shall cease forthwith) if:

 

10.2.1                       either Condition 1(a) or 1(b) has been invoked by AbbVie in accordance with the terms of this Agreement;

 

10.2.2                       Shire makes a Shire Adverse Recommendation Change; or

 

10.2.3                       the adoption of the Delaware Merger Agreement by the holders of AbbVie Shares shall not have occurred at the AbbVie Shareholders Meeting or any adjournment or postponement thereof at which a vote on the adoption of the Delaware Merger Agreement is taken.

 

10.3                       In consideration of Shire incurring substantial costs and expenses in considering, negotiating and implementing this Agreement and the transactions and other actions contemplated by this Agreement, AbbVie undertakes that if, prior to the termination of this Agreement, an Adverse Shareholder Vote occurs in circumstances where the Break Fee is not payable (a “Cost Reimbursement Event”), then AbbVie will make a payment (the “Cost Reimbursement Payment”) to Shire in order to reimburse and compensate Shire for all of its and its subsidiaries’ reasonable out-of-pocket expenses, and its and their costs, fees, losses and charges incurred directly or indirectly in connection with the consideration, negotiation and implementation of this Agreement and the transactions and other actions contemplated by this Agreement (together “Costs”) in an amount in cash in US Dollars that is equal to the aggregate of the Costs up to a maximum amount of one per cent of the product of the indicative value of the cash and shares to be delivered per Shire Share multiplied by the number of issued Shire shares all as set forth in Annex A and converted pursuant to the exchange rate in Annex B; provided that the parties agree that the Costs shall be deemed to be no less than $500 million and a payment of $500 million in cash in respect of Costs shall be due to Shire within seven days of the occurrence of a Cost Reimbursement Event without any action being required of Shire.

 

10.4                       Clauses 7, 10.4, 11 and 12 shall survive termination of this Agreement.

 

11.                              WARRANTIES

 

11.1                       Each Party warrants to the other on the date of this Agreement that:

 

11.1.1                       it has the requisite power and authority to enter into and perform its obligations under this Agreement;

 

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11.1.2                       this Agreement constitutes its binding obligations in accordance with its terms; and

 

11.1.3                       the execution and delivery of, and performance of its obligations under, this Agreement will not:

 

(A)                              result in a breach of any provision of its constitutional documents;

 

(B)                              save as fairly disclosed to the other, result in a breach of, or constitute a default under, any instrument to which it is a party or by which it is bound; or

 

(C)                              result in a breach of any order, judgment or decree of any court or governmental agency to which it is a party or by which it is bound.

 

11.2                       AbbVie shall not have any claim against Shire and Shire shall not have any claim against AbbVie for breach of warranty after the Effective Date (without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement).

 

12.                              MISCELLANEOUS PROVISIONS

 

12.1                       Assignment

 

No Party may assign (whether absolutely or by way of security and whether in whole or in part), transfer, mortgage, charge, declare itself a trustee for a third party of, or otherwise dispose of (in any manner whatsoever) the benefit of this Agreement or sub contract or delegate in any manner whatsoever its performance under this Agreement (each of the above a “dealing”) and any such purported dealing in contravention of this clause 12.1 shall be ineffective.

 

12.2                       Severance/unenforceable provisions

 

If any provision or part of this Agreement is void or unenforceable due to any applicable Law, it shall be deemed to be deleted and the remaining provisions of this Agreement shall continue in full force and effect.

 

12.3                       Variation

 

No variation to this Agreement shall be effective unless made in writing (which for this purpose, does not include email) and executed by each of the Parties.  The expression “variation” includes any variation, amendment, supplement, deletion or replacement, however effected.

 

12.4                      Time of essence

 

Except as otherwise expressly provided, time is of the essence in this Agreement.

 

12.5                       No Partnership

 

Nothing in this Agreement or in any document referred to in it or any action taken by the Parties under it or any document referred to in it shall constitute any of the Parties a partner of any other.

 

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12.6                       Entire Agreement

 

12.6.1                       This Agreement, together with the Delaware Merger Agreement, represents the entire understanding, and constitutes the whole agreement, in relation to its subject matter and supersedes any previous agreement between the Parties with respect thereto and, without prejudice to the generality of the foregoing, excludes any warranty, condition or other undertaking implied at Law or by custom.

 

12.6.2                       Each Party confirms that, except as provided in this Agreement, no Party has relied on any undertaking, representation or warranty by a Party which is not contained in this Agreement or the Delaware Merger Agreement and, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, no Party shall be under any liability or shall have any remedy in respect of any misrepresentation or untrue statement unless and to the extent that a claim lies under this Agreement.

 

12.7                       Counterparts

 

This Agreement may be executed in any number of counterparts and by the different Parties on separate counterparts, each of which when executed and delivered shall constitute an original, but all the counterparts shall together constitute one instrument.

 

12.8                       Notices

 

A notice, approval, consent or other communication in connection with this Agreement must be in writing and must be left at the address of the addressee, or sent by pre-paid registered post to the address of the addressee or sent by email or facsimile to the email address or facsimile number of the addressee which is specified in this Clause 12.8 or to such other address, email address or facsimile number as may be notified by such addressee by giving notice in accordance with this Clause 12.8. The address, email address and facsimile number of each Party is:

 

12.8.1                       in the case of AbbVie:

 

Address: 0 Xxxxx Xxxxxxxx Xxxx, X000, Xxxxx Xxxxxxx, XX 00000

Email address: xxxxx.xxxxxxxxxx@xxxxxx.xxx

Fax number: (000) 000-0000

 

For the attention of: Xxxxx Xxxxxxxxxx, Executive Vice President, Business Development, External Affairs and General Counsel

 

With a copy to: Xxxxx Xxxxxx and Xxxxxxx Xxxxxxxxx at Xxxxxxx Xxxxx Freehills LLP, Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX and to email addresses: xxxxx.xxxxxx@xxx.xxx and xxxxxxx.xxxxxxxxx@xxx.xxx and Xxxxxxx X. Xxxx at Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 and to email address xxxxx@xxxxxxxx.xxx.

 

12.8.2                       in the case of Shire:

 

Address: Riverwalk, Xxxxxxxx Xxxxxxxx Xxxxxx, Xxxxxx 00, Xxxxxxx

Email address: xxxx@xxxxx.xxx

Fax number:x000 (0) 0 000 0000

 

For the attention of:           Tatjana May, General Counsel

 

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With a copy to: Xxxxxx Hattrell and Xxxx Xxxxxxx at Xxxxxxxxx and May, Xxx Xxxxxxx Xxx, Xxxxxx XX0X 0XX and to email addresses: xxxxxx.xxxxxxxx@xxxxxxxxxxxxxxx.xxx and xxxx.xxxxxxx@xxxxxxxxxxxxxxx.xxx and Xxxxxx X. Xxxxx, Xx. and Xxxxxxx X. Xxxxx at Xxxxx Xxxx and Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 and to email addresses xxxxxx.xxxxx@xxxxxxxxx.xxx and xxxxxxx.xxxxx@xxxxxxxxx.xxx.

 

12.9                       A notice given under Clause 12.8 shall conclusively be deemed to have been received on the next working day in the place to which it is sent, if sent by fax, at the time of delivery if delivered personally and one Business Day after posting if sent by registered mail.

 

12.10                Costs and expenses

 

Without prejudice to Clause 6, each Party shall bear all costs incurred by it in connection with the preparation, negotiation and entry into this Agreement and the documents to be entered into pursuant to it.

 

12.11                Rights of Third Parties

 

12.11.1                Clause 8 (the “Third Party Rights Clause”) confers a benefit on the Indemnified Parties and, subject to the remaining provisions of this clause, is intended to be enforceable by each Indemnified Party by virtue of the Contracts (Rights of Third Parties) Xxx 0000.

 

12.11.2                The parties to this agreement do not intend that any term of this agreement, apart from the Third Party Rights Clause, should be enforceable, by virtue of the Contracts (Rights of Third Parties) Xxx 0000, by any person who is not a party to this agreement.

 

12.11.3                Notwithstanding the provisions of sub-clause 12.11.1, this agreement may be rescinded or varied in any way and at any time by the parties to this agreement without the consent of any Indemnified Party.

 

12.11.4                In any proceedings by the Indemnified Party against AbbVie to enforce the terms of the Third Party Rights Clause, AbbVie shall not be entitled to:

 

(A)                              any defences or rights of set-off which would have been available had any other party to this agreement brought those proceedings; or

 

(B)                              any defences, rights of set-off or counterclaim which would have been available had the Indemnified Party been a party to this agreement.

 

12.12                Breach

 

Without prejudice to terms of Clauses 7 and 10.3, for the avoidance of doubt, neither Party shall be liable for any default under the terms of this Agreement to the extent that such default is attributable to the default or delay on the part of the other Party to provide assistance, information or co-operation under the terms hereof.

 

12.13               Undertaking to procure compliance by New AbbVie

 

AbbVie undertakes that where its obligations under this Agreement require the compliance or assistance of New AbbVie, then AbbVie shall procure such compliance or assistance.

 

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13.                              GOVERNING LAW AND JURISDICTION

 

13.1                       This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) shall be governed by and construed in accordance with English Law; provided, however, that matters related to the exercise of, and compliance by the Shire Directors with, their fiduciary duties to Shire and its shareholders shall be governed by, and construed in accordance with, Jersey Law; and provided further, that the Delaware Merger Agreement and matters related thereto (and the exercise of, and compliance by the AbbVie Directors with, their fiduciary duties to AbbVie and its stockholders) shall be governed by, and construed in accordance with, Delaware Law.

 

13.2                       Subject to Section 7.5 of the Delaware Merger Agreement, each Party irrevocably agrees that the Courts of England shall have exclusive jurisdiction in relation to any dispute or claim arising out of or in connection with this Agreement or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims).

 

13.3                       Each Party irrevocably waives any right that it may have to object to an action being brought in those Courts, to claim that the action has been brought in an inconvenient forum, or to claim that those Courts do not have jurisdiction.

 

14.                              AGENT FOR SERVICE OF PROCESS

 

14.1                       AbbVie hereby appoints AbbVie Ltd (attention: Xxxx Xxxxx, General Manager), Xxxxxx House, Vanwall Business Park, Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx XX0 0XX, Xxxxxx Xxxxxxx to be its agent for service of process in England and Wales in connection with any notice, writ, summons, order, judgment or other document relating to or in connection with any proceedings connected to this Agreement.

 

14.2                       Shire hereby appoints Shire Pharmaceuticals Group of Lime Tree Way, Hampshire Int Business Park, Chineham, Xxxxxxxxxxx, Xxxxxxxxx, XX00 0XX to be its agent for service of process in England and Wales in connection with any notice, writ, summons, order, judgment or other document relating to or in connection with any proceedings connected to this Agreement.

 

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SCHEDULE 1

 

DEFINITIONS AND INTERPRETATION

 

In this Agreement (including the Recitals and the Schedules), unless the context otherwise requires, each of the following terms and expressions shall have the following meanings:

 

“1933 Act” means the Securities Act of 1933;

 

“AbbVie Adverse Recommendation Change” means any withdrawal or modification in a manner adverse to the consummation of the Merger of the AbbVie Recommendation by the board of the AbbVie Directors, or the failure to include the AbbVie Recommendation in the definitive Proxy Statement/Prospectus;

 

“AbbVie Directors” means the directors of AbbVie from time to time and “AbbVie Director” and “Directors of AbbVie” shall be construed accordingly;

 

“AbbVie Group” means AbbVie and its subsidiary undertakings from time to time and “member of the AbbVie Group” shall be construed accordingly;

 

“AbbVie Information” means information relating to AbbVie, the AbbVie Group or any a member of the AbbVie Group or any of the AbbVie Directors;

 

“AbbVie Option” means an option to acquire AbbVie shares granted or outstanding under the AbbVie Stock Plans;

 

“AbbVie Share Award” means an award outstanding under the AbbVie Stock Plans other than an AbbVie Option;

 

“AbbVie Shareholder Approval” means the adoption of the Delaware Merger Agreement by the affirmative vote of the holders of a majority of the outstanding AbbVie shares entitled to vote on such matter;

 

“AbbVie Shareholders Meeting” shall have the meaning given in Clause 2.1(B);

 

“AbbVie Shares” means the shares of common stock, par value $0.01 per share, of AbbVie;

 

“AbbVie Stock Plans” means the AbbVie 2013 Incentive Stock Program, the AbbVie 2013 Employee Stock Purchase Plan for Non-U.S. Employees and the AbbVie Non-Employee Directors’ Fee Plan.

 

“Acquisition” means the direct or indirect acquisition of the entire issued and to be issued share capital of Shire by New AbbVie to be implemented by way of the Scheme or (should New AbbVie so elect, subject to the consent of the Panel where necessary) by way of the Offer;

 

“Break Fee” shall have the meaning given in Clause 7.1;

 

“Break Fee Payment Event” shall have the meaning given in Clause 7.2;

 

“Business Day” a day (not being a Saturday) on which banks are open for general banking business in Jersey and the City of London;

 

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“Clearance(s)” means all consents, clearances, permissions, waivers and/or filings that are necessary or desirable in order to satisfy the Conditions and all waiting periods that may need to have expired, from or under the Laws or practices applied by any relevant Regulatory Authority in connection with the implementation of the Merger, and any reference to Clearances having been “satisfied” shall be construed as meaning that the foregoing have been obtained or, where appropriate, made or expired in accordance with the relevant Condition;

 

“Code” means the City Code on Takeovers and Mergers;

 

“Conditions” means the conditions to the implementation of the Acquisition which are set out in Appendix 1 to the Press Announcement and “Condition” shall be construed accordingly;

 

“Court” means the Royal Court of Jersey;

 

“Delaware Merger Agreement” the Agreement and Plan of Merger between AbbVie, New AbbVie and Merger Sub dated as of the date hereof and in the form attached at Appendix A;

 

“Effective Date” means the date upon which either:

 

(A)                              the Scheme becomes effective in accordance with its terms; or

 

(B)                     if AbbVie elects to implement the Acquisition by means of the Offer, the Offer becoming or being declared unconditional in all respects and having closed; and

 

“Effective” shall be construed accordingly;

 

“Indemnified Party” has the meaning given in Clause 8.1;

 

“Jersey Companies Law” means the Companies (Jersey) Law 1991;

 

“Law” means any federal, state, local or foreign laws or regulations (whether civil, criminal or administrative), common law, statutory instruments, treaties, conventions, directives, regulations or rules made thereunder, ordinance, bylaws, judgments, orders, injunctions, decrees, resolutions, arbitration awards, agency requirements, writs, franchises, variances, exemptions, approvals, licences or permits in any applicable jurisdiction (including the United States, the United Kingdom, the European Union, Jersey or elsewhere), including any rules of any relevant governmental entity.

 

“Long Stop Dates” means the dates set out in the Press Announcement by which, the Shire Meetings must be held, the Sanction Hearing must be held and the Scheme must  become Effective (or such other later dates, in respect of any of such dates, as may be agreed by AbbVie, New AbbVie and Shire in accordance with the Code);

 

“Merger” means the Acquisition and the US Merger;

 

“Merger Sub” means AbbVie Ventures LLC, a Delaware limited liability company that is currently an indirect wholly owned subsidiary of New AbbVie;

 

“New AbbVie” means AbbVie Private Limited, a company incorporated in Jersey (registered number 116202 ) and whose registered office is at Xxxxx Xxxxx, xxx Xxxxxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX;

 

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“New AbbVie Shares” means the ordinary shares in New AbbVie, to be allotted pursuant to the Scheme (of the Offer) or the US Merger, as the context requires;

 

“Offer” means, where AbbVie has elected to implement the Acquisition by way of a takeover offer within the meaning of Article 116 of the Jersey Companies Law, rather than the Scheme, such offer (provided such offer is made in accordance with the terms and conditions set out in the Press Announcement) including any subsequent revision, amendment, variation, extension or renewal;

 

“Offer Document” means the offer document published by or on behalf of AbbVie in connection with the Offer, including any revised offer document;

 

“Panel” means the Panel on Takeovers and Mergers in the UK;

 

“Press Announcement” means the press announcement in the agreed form set out in Schedule 2;

 

“Regulatory Authority” means any court or competition, antitrust, national, supranational or supervisory body or other government, governmental, trade or regulatory agency or body, in each case in any jurisdiction, including the European Commission but excluding the Panel;

 

“Regulatory Conditions” means Conditions 3(d) to 3(j) inclusive;

 

“Sanction Hearing” means the Court hearing to sanction the Scheme under Article 125(2) of the Jersey Companies Law, at which the Scheme Order is expected to be granted;

 

“Scheme” means the scheme of arrangement proposed to be made under Article 125 of the Jersey Companies Law in order to implement the Acquisition, including any subsequent revision, modification or amendment either agreed upon between the Parties, or approved or imposed by the Court and agreed to on behalf of AbbVie;

 

“Scheme Document” means the circular relating to the Scheme to be dispatched to the shareholders of Shire, setting out, among other things, the full terms and conditions to the implementation of the Scheme as well as the Scheme itself, the explanatory statement required under Article 126 of the Jersey Companies Law and containing the notices of the Shire Meetings;

 

“Scheme Order” means the order of the Court sanctioning the Scheme pursuant to Article 125(2) of the Jersey Companies Law;

 

“Shire Adverse Recommendation Change” means any failure to include the Shire Recommendation in the Scheme Document, or any withdrawal or modification in a manner adverse to the consummation of the Merger of the Shire Recommendation (it being understood that the mere issuance of a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Securities Exchange Act of 1934, as amended, or similar disclosure or communication will not constitute an Shire Adverse Recommendation Change);

 

“Shire Directors” means the directors of Shire from time to time and “Shire Director” shall be construed accordingly;

 

“Shire Group” means Shire and its subsidiary undertakings, from time to time and “member of the Shire Group” shall be construed accordingly;

 

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“Shire Information” means information relating to Shire, any member of Shire Group or any of the Shire Directors and all other information in the Scheme Document that is not AbbVie Information;

 

“Shire Meetings” means the Scheme meeting to be convened pursuant to an order of the Court pursuant to Article 125(1) of the Jersey Companies Law, and the general meeting of Shire Shareholders to be held on the same day in connection with the implementation of the Scheme, including any adjournment of either of them, notice of which will be set out in the Scheme Document; and

 

“Shire Recommendation” means the recommendation of the Shire Directors that Shire Shareholders vote in favour of the Scheme or, as the case may be, the recommendation of the Shire Directors that Shire Shareholders accept the Offer;

 

“Shire Shares” means ordinary shares of 5 xxxxx each in the capital of Shire;

 

“Shire Shareholders” means holders of ordinary shares of 5 xxxxx each in the capital of Shire; and

 

“US Merger” means the merger of Merger Sub with and into AbbVie pursuant to the Delaware General Corporation Law and the Delaware Limited Liability Act, with AbbVie being the surviving corporation of such merger, pursuant to the Delaware Merger Agreement.

 

The following shall apply to this Agreement (but not to the Press Announcement):

 

(A)    terms and expressions used but not expressly defined in this Agreement shall, unless the context otherwise requires, have the meanings given in the Press Announcement;

 

(B)    terms and expressions defined in the Companies Xxx 0000 and not expressly defined in this Agreement, including the expressions “subsidiary” and “subsidiary undertaking”, shall, unless the context otherwise requires, have the meanings given in that Act;

 

(C)    when used in this Agreement, the expressions “acting in concert” and “offer” shall have the meanings given in the Code;

 

(D)    any reference to this Agreement includes the Schedules to it, each of which forms part of this Agreement for all purposes;

 

(E)    a reference to an enactment or statutory provision shall be construed as a reference to any subordinate legislation made under the relevant enactment or statutory provision and shall be construed as a reference to that enactment, statutory provision or subordinate legislation as from time to time amended, consolidated, modified, re enacted or replaced;

 

(F)     words in the singular shall include the plural and vice versa;

 

(G)    references to one gender include other genders;

 

(H)    references to a “company” shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established;

 

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(I)     a reference to a Recital, Clause, Schedule (other than to a schedule to a statutory provision) shall be a reference to a Recital, Clause, Schedule (as the case may be) of or to this Agreement;

 

(J)     a reference to “includes” or “including” shall mean “includes without limitation” or “including without limitation”;

 

(K)    references to documents “in the agreed form” or any similar expression shall be to documents agreed between the Parties, annexed to this Agreement and initialled for identification by or on behalf of Shire and AbbVie;

 

(L)    the headings in this Agreement are for convenience only and shall not affect its interpretation;

 

(M)   a reference to any other document referred to in this Agreement is a reference to that other document as amended, varied, novated or supplemented at any time; and

 

(N)    references to this Agreement include this Agreement as amended or supplemented in accordance with its terms.

 

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SCHEDULE 3

 

EMPLOYEE AND SHARE PLAN ARRANGEMENTS

 

General

 

1.             Subject to applicable confidentiality, legal and regulatory requirements, Shire agrees to co-operate with and provide such details to AbbVie in relation to the Shire employee incentive arrangements as AbbVie may reasonably request in order to plan and make appropriate proposals to the participants in the Shire employee incentive arrangements, as provided for in Rule 15 of the Code, including the proposals as set out in paragraphs 4 to 12 below (the “Proposals”).  The parties agree that such Proposals will be sent to participants as soon as practicable after the Scheme Document (or Offer Document, as applicable) is published.  AbbVie agrees that the terms of such communications will be agreed with Shire before they are despatched (such agreement not to be unreasonably withheld).  If requested by Shire, the Proposals (or some of them) will take the form of a joint proposal to participants from Shire and AbbVie.

 

2.             Shire agrees that, save for

 

(i)            exercise of the discretion referred to in paragraph 6 below; and

 

(ii)           exercise of any discretion to treat any person as a good leaver (however defined) on termination of their employment prior to the Effective Date,

 

in advance of the exercise of any discretion provided for under any of the Shire employee incentive arrangements by the Shire Directors or Shire’s Remuneration Committee, Shire shall notify AbbVie that such discretion is being considered by the Shire Directors or Shire’s Remuneration Committee, as appropriate, and Shire agrees that AbbVie shall be entitled to make representations to the relevant body, which the relevant body shall consider prior to exercising any discretion.  AbbVie agrees that neither the Shire Directors nor Shire’s Remuneration Committee shall be bound to act in accordance with AbbVie’s representation.

 

3.            AbbVie and Shire agree that Shire shall propose an amendment to the Shire articles of association by the adoption and inclusion of a new article (to be set out in the notice of the Shire general meeting) under which, with effect from the Scheme becoming effective, Shire Shares which are issued after the record date in respect of the Scheme as a result of the exercise of rights under the Shire employee incentive arrangements will, to the extent not otherwise acquired under the Scheme, be transferred to New AbbVie for the same consideration as is payable to shareholders under the Scheme.

 

Shire Portfolio Share Plan (“PSP”)

 

4.             The Proposals to participants in the PSP will take the form of their PSP awards vesting at the Effective Date on a pro rata basis, calculated in accordance with the PSP rules applicable on a change of control, but with those PSP awards that do not so vest being rolled over into replacement awards over shares in New AbbVie of equivalent value (“Rollover Awards”).  These replacement awards will continue to vest in future on the same time schedule and otherwise, save as referred to below, subject to the same terms as the Shire awards which they replace.

 

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5.            In circumstances where (i) the employment of the holder of a Rollover Award is terminated by Shire (or his/her relevant employer within the Shire Group or the New AbbVie Group, as appropriate) for any reason other than for Cause, or (ii) the employee terminates his or her employment for Good Reason, within 12 months after the Effective Date, his/her Rollover Awards will vest in full (without time pro-rating). Dr Ornskov’s Rollover Awards will also vest in full (without time pro-rating) on or following 30 June 2015 on the day upon which notice of termination of Dr Ornskov’s employment is given by Shire (or his employer within the Shire Group or the New AbbVie Group, as appropriate) or on the date upon which notice is given by Dr Ornskov to terminate his employment for any reason.

 

6.            The parties agree that the Remuneration Committee of Shire may, if it so decides in respect of any PSP vesting which occurs in connection with the Scheme sanction (or Offer becoming effective), determine that all performance conditions attaching to awards under the PSP have been satisfied.  No such determination may be made where a vesting occurs otherwise than in connection with the Scheme sanction (or Offer becoming effective).  Where the existing award was subject to performance conditions, Rollover Award will be subject to equivalent performance conditions.  Those performance conditions will be based on parameters which are appropriate for New AbbVie and will be set on the basis that they are expected to be no easier and no more difficult to achieve than the performance conditions applying to the equivalent existing award and will be tested on the same timetable as the performance conditions applying to the existing award.

 

Deferred Shares

 

7.             One-off deferred share awards made on appointment or promotion of individuals (none of which are subject to performance conditions) will vest in accordance with their terms.

 

Shire Sharesave Scheme (“Sharesave”)

 

8.             The Proposals to Sharesave optionholders will be to either exercise their options on or following the change of control of Shire in accordance with the Sharesave rules or to exchange their Sharesave options for replacement options over shares in New AbbVie, in accordance with the standard rollover rules of the Sharesave plan.

 

Shire Employee Stock Performance Plan (“ESPP”)

 

9.             To the extent offering periods have not concluded prior to the Scheme (or Offer) becoming effective, such offering periods will be terminated prior to completion and options will be exercised prior to, but conditional upon, Scheme (or Offer) becoming effective such that Shire Shares will be purchased in accordance with the ESPP plan terms.  Participants in the French Sub-Plan will be treated, to the extent practicable, consistently with US participants in the ESPP.

 

Irish Employee Stock Purchase Plan (“Irish ESPP”)

 

10.          Participants in the Irish ESPP will be treated, to the extent practicable, consistently with participants in the Sharesave plan.

 

Executive Annual Incentive Plan (“EAIP”)

 

11.          Deferred shares held under the EAIP will be released to participants immediately prior to the Effective Date.

 

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Legacy option arrangements

 

12.          All options under the Shire Pharmaceuticals Group plc 2000 Executive Share Option Scheme are already exercisable.  They will lapse if not exercised within a period (likely to be one month) following the Effective Date.  Optionholders will have the opportunity prior to, or during this exercise window following, the Scheme (or Offer) becoming effective to exercise their options. A cashless exercise facility will be made available to optionholders exercising their options.

 

2014 Incentive Plans

 

13.             (i)            To the extent not previously paid by the Shire Group prior to the Effective Date, no later than fifteen (15) Business Days following the Effective Date, Shire or the relevant member of the Shire Group shall make a cash payment to each employee of the Shire Group who is a participant in the Shire Executive Annual Incentive Plan or the Shire Annual Incentive Plan (each, an “Annual Bonus Plan”) as at the Effective Date, in full satisfaction of each such employee’s rights under such plan, in an amount equal to the amount determined by Shire prior to the Effective Date to be payable to such employee with respect to the 2014 calendar year under the Annual Bonus Plans, based on Shire’s actual performance through the December 31, 2014 or a best estimate of Shire’s performance to the Effective Date (if earlier).

 

(ii)              To the extent not previously paid prior to the Effective Date, each employee of the Shire Group who participates in a cash incentive plan other than the Annual Bonus Plans (each, an “Incentive Plan”) as at the Effective Date will be eligible to receive a payment under the terms of such Incentive Plan for the performance period in which the Effective Date falls, if the employee remains employed by the New AbbVie Group through the required date set forth in such Incentive Plan or, where the employment of such employee has been terminated by Shire (or his/her relevant employer within the Shire Group or the New AbbVie Group, as appropriate) for any reason other than for Cause, such employee shall receive any accrued benefits under the relevant Incentive Plan to the date of termination.

 

(iii)             In the event the Effective Date occurs prior to December 31, 2014, each Incentive Plan will continue to be maintained in accordance with the terms thereof through December 31, 2014. Payments under the Incentive Plans will in all cases be determined in accordance with the terms of the Incentive Plans and Shire’s historical practices for making such payments and will reflect a participant’s individual targets (as applicable).

 

Excise Tax

 

14.          To the extent any Shire “disqualified individual” (as defined in Section 4985 of the U.S. Code) becomes subject to an excise tax under Section 4985 of the U.S. Code on the value of “specified stock compensation” (as defined in Section 4985 of the U.S. Code) in connection with the Merger, Shire will provide each such individual with a payment with respect to the excise tax, so that, on a net after-tax basis, he or she would be in the same position as if no such excise tax had applied.  These amounts would be paid following the Effective Date, prior to the date the excise tax becomes due and payable.

 

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Employee Trust

 

15.          Shire agrees to recommend to the trustee of the Shire Employee Benefit Trust that the trustee will, in priority to the issue of Shares by Shire, use the Shares currently comprised in the trust to satisfy any vesting and/or exercise of options and/or awards under any of the Shire employee incentive arrangements which occurs following the date of this agreement.

 

Retention Arrangements

 

16.          The parties agree that Shire shall be permitted to implement employee retention arrangements on the terms herein and as may otherwise be agreed between Shire and AbbVie for such key Shire employees (the “Key Shire Employees”) as have been agreed in advance between Shire and AbbVie (the “Key Retention Award Arrangements”).  The Key Retention Award Arrangements shall prescribe that, to be eligible to receive the award, the relevant Key Shire Employee must, subject to the terms set out in paragraph 17 below, remain in the active employment of Shire (or an appropriate alternative employer within the New AbbVie Group) until 30 June 2015 (the “Retention Date”).  Where due, such awards will be payable (less any legally required deductions) within 30 days after the Retention Date.

 

17.          In circumstances where the employment of a Key Shire Employee:

 

(i)               is terminated by Shire (or his/her relevant employer within the Shire Group or the New AbbVie Group, as appropriate) for any reason other than for Cause;

 

(ii)              terminates by reason of death or disability; or

 

(iii)             is terminated by the Key Shire Employee for a Good Reason,

 

(each a “Permitted Acceleration Event”), in any which case prior to the Retention Date, then the applicable award shall instead be payable in full within 30 days after the Permitted Acceleration Event.  In all other circumstances where the employment of a relevant Key Shire Employee terminates prior to the Retention Date, the relevant Key Shire Employee shall immediately forfeit the right to receive any payment under or in respect of the Key Retention Award Arrangements.

 

18.          Shire agrees to consult with AbbVie in connection with the content of any submission made to the Panel on Takeovers and Mergers in connection with the arrangements set out in paragraphs 16 to 17 and that no such submission shall be made without AbbVie’s prior approval (such approval not to be unreasonably withheld).

 

19.          AbbVie and Shire agree that New AbbVie shall, in due course, consider implementing employee retention arrangements in respect of such other employees of the New AbbVie Group as New AbbVie shall consider appropriate and necessary, to take effect after the Effective Date.

 

Maintenance of Compensation and Benefits

 

20.          AbbVie agrees that New AbbVie shall, at a minimum, for the 12-month period immediately following the Effective Date:

 

(i)               in respect of each employee of the Shire Group (as identified immediately preceding the Scheme (or Offer) becoming effective) who remains in employment

 

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within the New AbbVie Group, maintain base salary and bonus opportunity at existing levels; and

 

(ii)              (subject to the below) provide a benefits package which is substantially comparable in the aggregate to the existing benefits available to the employees of Shire as at the date of this Agreement.

 

For the avoidance of doubt, for the purposes of (ii) above, the terms of any separation or severance pay plan or arrangement which may apply in respect of any such employee shall not be considered to be a “benefit” for these purposes.

 

Definitions

 

21.          “Cause” means the following: (A) material breach by the employee of the terms and conditions of the employee’s employment, including, but not limited to: (i) material breach by the employee of Shire’s or New AbbVie’s (as applicable) code of business conduct; (ii) material breach by the employee of the employee’s employment agreement (if any); (iii) commission by the employee of an act of fraud, embezzlement or theft in connection with the employee’s duties or in the course of the employee’s employment; (iv) wrongful disclosure by the employee of secret processes or confidential information of the Shire Group or the New AbbVie Group; or (v) failure by the employee to substantially perform the duties of the employee’s employment (other than any such failure resulting from the employee’s disability); or (B) to the extent permitted by applicable law, engagement by the employee, directly or indirectly, for the benefit of the employee or others, in any activity, employment or business which is competitive with the Shire Group, AbbVie Group or New AbbVie Group.

 

22.          “Good Reason” means as a result of (i) any material reduction in an employee’s base salary or target incentive opportunity, or (ii) a relocation in the principal place of an employee’s employment that increases his or her daily commute by more than 50 miles from that immediately prior to the Effective Date.

 

23.          “New AbbVie Group” means New AbbVie and its subsidiaries from time to time.

 

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IN WITNESS of which this Agreement has been entered into on the date first above written.

 

 

For and on behalf of

 

/s/ Xxxxxxx Xxxxx

 

 

 

ABBVIE INC

 

Name: Xxxxxxx Xxxxx

by a duly authorized officer

 

Title: Executive Vice President, Chief Financial Officer

 

 

 

 

 

 

Signed by

 

 

 

 

 

For and on behalf of

 

/s/ Xxxxxxxx Ornskov

 

 

Name: Xxxxxxxx Ornskov

SHIRE PLC

 

Title: Chief Executive Officer

 

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EXHIBIT A

 

AGREEMENT AND PLAN OF MERGER

 

AGREEMENT AND PLAN OF MERGER, dated as of July 18, 2014 (this “Agreement”), among AbbVie Private Limited, a private company limited by shares and incorporated and existing under the laws of Jersey with registered address at Xxxxx Xxxxx, Xxx Xxxxxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX (“AbbVie Limited”) and a wholly owned subsidiary of AbbVie Inc., AbbVie Inc., a Delaware corporation (“AbbVie”) and AbbVie Ventures LLC, a Delaware limited liability company and a wholly owned indirect subsidiary of AbbVie Limited (“Merger Sub”).

 

RECITALS

 

WHEREAS, AbbVie Limited, AbbVie and Shire plc, a public company limited by shares and incorporated and existing under the laws of Jersey with registered address at 00 Xxxxxxxxx Xxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX (“Shire”), have entered into that certain Co-Operation Agreement, dated as of July 17, 2014 (the “Co-Operation Agreement”);

 

WHEREAS, on the terms and subject to the conditions set forth in the Press Announcement (as defined in the Co-Operation Agreement), AbbVie Holdings Limited, a private company limited by shares and incorporated and existing under the laws of Jersey with registered address at Xxxxx Xxxxx, Xxx Xxxxxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX and a wholly owned subsidiary of AbbVie Limited, will acquire all of the issued and to be issued ordinary shares of £0.05 each in the capital of Shire pursuant to a scheme of arrangement under Article 125 of the Jersey Companies Law, as such scheme of arrangement may be revised, amended or extended from time to time (the “Shire Acquisition”);

 

WHEREAS, the Shire Acquisition is conditioned upon, among other things, this Agreement being duly adopted by the affirmative vote of the holders of a majority of the outstanding Shares (as defined below) entitled to vote on such matter at a meeting of holders of Shares duly called and held for such purpose in accordance with applicable laws and the certificate of incorporation and bylaws of AbbVie;

 

WHEREAS, Merger Sub is a wholly owned direct subsidiary of AbbVie US Holdings LLC, a Delaware limited liability company (“US Holdings”), and US Holdings is a wholly owned direct subsidiary of AbbVie Limited;

 

WHEREAS, in connection with the Shire Acquisition, Merger Sub shall be merged with and into AbbVie (the “Merger”), and AbbVie shall become a wholly owned subsidiary of US Holdings, on the terms and subject to the conditions set forth in this Agreement;

 

WHEREAS, the board of directors of AbbVie has approved the Merger, approved and declared advisable this Agreement, and resolved to recommend to its stockholders the adoption of this Agreement;

 


 

WHEREAS, the sole manager of Merger Sub has determined that the Merger and the other transactions contemplated by this Agreement are in the best interests of Merger Sub; and

 

WHEREAS, promptly following the execution of this Agreement, the sole member of Merger Sub shall approve this Agreement and the Merger.

 

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements contained herein and in the Co-Operation Agreement, the parties hereto agree as follows:

 

ARTICLE I

 

The Merger

 

Section 1.1            The Merger.  Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, Merger Sub shall be merged with and into AbbVie and the separate corporate existence of Merger Sub shall thereupon cease.  AbbVie shall be the surviving corporation in the Merger (sometimes hereinafter referred to as the “Surviving Corporation”), and the separate corporate existence of AbbVie with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger, except as set forth in Article II.  The Merger shall have the effects specified in the Delaware General Corporation Law, as amended (the “DGCL”) and the Delaware Limited Liability Company Act, as amended (the “DLLCA”).

 

Section 1.2            Closing.  Subject to Section 7.4, unless otherwise mutually agreed in writing between AbbVie and AbbVie Limited, the closing for the Merger (the “Closing”) shall take place at the offices of AbbVie at 0 Xxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxx, Xxxxxxxx 00000-0000, on the day (the “Closing Date”) that is as soon as reasonably practicable following (and to the extent possible, the same day as) the satisfaction of the condition set forth in Section 6.1 in accordance with this Agreement.

 

Section 1.3            Effective Time.  As soon as practicable following the Closing, AbbVie and Merger Sub will cause a Certificate of Merger with respect to the Merger (the “Certificate of Merger”) to be executed, acknowledged and filed with the Secretary of State of the State of Delaware as provided in the DGCL and the DLLCA.  The Merger shall become effective at the time when the Delaware Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such later time as may be agreed upon by the parties hereto in writing and set forth in the Delaware Certificate of Merger in accordance with the DGCL and the DLLCA (the “Effective Time”).

 

Section 1.4            Approval by Merger Sub.  Immediately following the execution and delivery of this Agreement by the parties hereto, the sole member of Merger Sub shall adopt this Agreement and approve the Merger, in accordance with the DGCL and the DLLCA, by written consent, and deliver a copy of such written consent to each of the parties hereto.

 

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Section 1.5            Capitalization of AbbVie Limited.  Immediately prior to the Shire Acquisition becoming Effective, the number of issued and outstanding shares of AbbVie Limited (the “AbbVie Limited Shares”) shall not exceed 30,000.

 

ARTICLE II

 

Certificate of Incorporation of Surviving Corporation; Bylaws

 

Section 2.1            Certificate of Incorporation.  At the Effective Time, the certificate of incorporation of AbbVie in effect immediately prior to the Effective Time shall be the certificate of incorporation of the Surviving Corporation (the “Charter”) until thereafter amended as provided therein or by applicable Law.

 

Section 2.2            Bylaws.  The parties hereto shall take all actions necessary so that the bylaws of AbbVie in effect immediately prior to the Effective Time in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Corporation (the “Bylaws”) until thereafter amended as provided therein or by applicable Law.

 

ARTICLE III

 

Directors and Officers

 

Section 3.1            Directors.  The parties hereto shall take all actions necessary so that the managers of Merger Sub at the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their death, resignation or removal in accordance with the terms of the Charter and the Bylaws.

 

Section 3.2            Officers.  The officers of AbbVie at the Effective Time shall be the officers of the Surviving Corporation, and shall continue to hold such positions until their resignation or removal in accordance with the terms of the Charter and the Bylaws.

 

ARTICLE IV

 

Effect of the Merger on Capital Stock; Exchange of Certificates

 

Section 4.1            Merger Consideration. At the Effective Time, as a result of the Merger and without any action on the part of any holder of capital stock of AbbVie, (a) each share of common stock, par value $0.01 per share, of AbbVie (each a “Share”) issued and outstanding immediately prior to the Effective Time (other than Treasury Shares), and all rights in respect thereof, shall be converted into, and become exchangeable for, one ordinary share of AbbVie Limited (such shares, “AbbVie Limited Common Shares,” and such consideration per Share, collectively with the right to receive cash in lieu of fractional shares pursuant to Section 4.10, the “Merger Consideration”), (b) each Share (other than Treasury Shares) shall cease to be outstanding, shall be cancelled and shall cease to exist, (c) each Treasury Share shall be cancelled or redeemed without payment of any consideration therefor and (d) each certificate (each, a “Certificate”) formerly representing any of the Shares (other than Treasury Shares) and each uncertificated Share (each, an “Uncertificated Share”) registered to a holder on the stock

 

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transfer books of AbbVie (other than Treasury Shares) shall, in each case, thereafter represent only the right to receive the Merger Consideration and the right, if any, to receive any distribution or dividend payable pursuant to Section 4.5.  The entire membership interest in Merger Sub issued and outstanding immediately prior to the Effective Time (1) shall be converted into one share of common stock, par value $0.01 per share, of the Surviving Corporation, and (2) shall be cancelled and shall cease to exist.

 

Section 4.2            Exchange Agent.  At the Effective Time, AbbVie Limited shall deposit, or shall cause to be deposited, with an exchange agent selected by AbbVie Limited (the “Exchange Agent”) for the benefit of holders of Shares (other than Treasury Shares), certificates (or, at AbbVie Limited’s option, uncertificated shares) representing an aggregate number of AbbVie Limited Common Shares equal to the number of AbbVie Limited Common Shares required to be delivered pursuant to Section 4.1.  In addition, AbbVie Limited shall deposit, or cause to be deposited, with the Exchange Agent, as necessary from time to time from and after the Effective Time, any dividends or other distributions payable pursuant to Section 4.5 with respect to the AbbVie Limited Common Shares with a record and payment date prior to the surrender of such Shares and cash in lieu of any fractional shares payable pursuant to Section 4.10 (such certificates for shares of AbbVie Limited Common Shares, together with the amount of any dividends or other distributions payable with respect thereto and cash in lieu of fractional shares, being hereinafter referred to as the “Exchange Fund”).

 

Section 4.3            Certificated Shares. Promptly after the Effective Time (and in any event within three (3) business days thereafter), the Surviving Corporation shall cause the Exchange Agent to mail to each holder of record of a Certificate, (a) a letter of transmittal (which shall notify holders of the effectiveness of the Merger and specify that delivery shall be effected, and that risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates (or affidavit of loss in lieu thereof as provided in Section 4.8) to the Exchange Agent), and (b) instructions for effecting the surrender of the Certificates (or affidavit of loss in lieu thereof as provided in Section 4.8) to the Exchange Agent in exchange for delivery of the Merger Consideration therefor.  Upon surrender of Certificates (or affidavit of loss in lieu thereof as provided in Section 4.8) for cancellation to the Exchange Agent, together with such letter of transmittal, duly completed and validly executed in accordance with such instructions, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificates shall be entitled to receive in exchange therefor:  (x) certificates (or, at AbbVie Limited’s option, uncertificated shares) representing the AbbVie Limited Common Shares into which the Shares represented by such holder’s Certificates were converted pursuant to Section 4.1, and the Certificates so surrendered shall forthwith be cancelled, and (y) a check in an amount of United States dollars equal to (i) any cash in lieu of fractional Shares pursuant to Section 4.10 plus (ii) cash dividends or other distributions that such holder has the right to receive pursuant to Section 4.5, in each case, after giving effect to any required Tax withholdings as provided in Section 4.9 and without interest thereon.

 

Section 4.4            Uncertificated Shares.  Promptly after the Effective Time, AbbVie Limited shall cause the Exchange Agent to (a) mail to each holder of Uncertificated Shares materials advising such holder of the effectiveness of the Merger and the conversion of their Shares into the right to receive the Merger Consideration and (b) deliver (i) in registered form to each holder of Uncertificated Shares that number of AbbVie Limited Common Shares that such

 

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holder is entitled to receive in respect of each such Uncertificated Share pursuant to Section 4.1 and (ii) a check in an amount of United States dollars equal to (A) any cash in lieu of fractional Shares pursuant to Section 4.10, plus (B) cash dividends or other distributions that such holder has the right to receive pursuant to Section 4.5 below, in each case, after giving effect to any required Tax withholdings as provided in Section 4.9 and without interest thereon.

 

Section 4.5            Dividends and Distributions with Respect to Unexchanged Shares; Voting.

 

(a)           All AbbVie Limited Common Shares to be issued pursuant to the Merger shall be issued and outstanding as of the Effective Time and whenever a dividend or other distribution is declared by AbbVie Limited in respect of the AbbVie Limited Common Shares, the record date for which is after the Effective Time, that declaration shall include dividends or other distributions in respect of all AbbVie Limited Common Shares issued in the Merger.  The Exchange Agent shall hold any AbbVie Limited Common Shares in respect of unsurrendered Certificates in trust for the holder of such Certificate until such Certificate (or affidavit of loss in lieu thereof as provided in Section 4.8) has been surrendered for exchange in accordance with this Article IV.  No dividends or other distributions in respect of the AbbVie Limited Common Shares shall be paid to any holder of any unsurrendered Certificate until such Certificate (or affidavit of loss in lieu thereof as provided in Section 4.8) has been surrendered for exchange in accordance with this Article IV.  Subject to applicable Law and the provisions of this Article IV, following surrender of any such Certificate (or affidavit of loss in lieu thereof as provided in Section 4.8), there shall be delivered to the record holder of the certificates representing whole shares of AbbVie Limited Common Shares in exchange therefore, and, after giving effect to any required Tax withholdings as provided in Section 4.9 and without interest thereon, (i) at the time of such surrender, the dividends or other distributions with a record date after the Effective Time with respect to such AbbVie Limited Common Shares and not theretofore paid and any cash in lieu of fractional Shares pursuant to Section 4.10 and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such AbbVie Limited Common Shares with a record date after the Effective Time, but with a payment date subsequent to such surrender.

 

(b)           Registered holders of unsurrendered Certificates shall be entitled to direct the Exchange Agent how to vote the AbbVie Limited Common Shares represented by such unsurrendered Certificates at any meeting of AbbVie Limited stockholders with a record date at or after the Effective Time the number of whole AbbVie Limited Common Shares represented by such Certificates, regardless of whether such holders have exchanged their Certificates.

 

Section 4.6            Transfers.  From and after the Effective Time there shall be no transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time.

 

Section 4.7            Termination of Exchange Fund.  Any portion of the Exchange Fund (including the proceeds of any investments of the Exchange Fund and any AbbVie Limited Common Shares) which has not been transferred to the holders of Shares as of the one year anniversary of the Effective Time shall be delivered to AbbVie Limited or its designee, upon demand.  Any holder of Certificates (as applicable) who has not theretofore complied with this

 

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Article IV prior to the one year anniversary of the Effective Time shall thereafter look only to AbbVie Limited for delivery of any certificates for AbbVie Limited Common Shares and payment of any dividends and other distributions in respect thereof, in each case, without any interest thereon.  Notwithstanding the foregoing, none of the Surviving Corporation, AbbVie Limited, the Exchange Agent or any other Person shall be liable to any former holder of Shares for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.

 

Section 4.8            Transferred Certificates; Lost, Stolen or Destroyed Certificates.  In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and compliance with the replacement requirements established by the Exchange Agent including, if required by the Exchange Agent, the posting by such Person of a bond in customary amount and upon such terms as may be required by AbbVie Limited as indemnity against any claim with respect to such Certificate that may be made against it, the Exchange Agent or the Surviving Corporation, the Exchange Agent shall deliver to such Person (or its designee) in exchange for such lost, stolen or destroyed Certificate, the AbbVie Limited Common Shares and any dividends and other distributions in respect of the AbbVie Limited Common Shares that would have been delivered pursuant to the provisions of this Article IV (after giving effect to any required Tax withholdings as provided in Section 4.9) had such lost, stolen or destroyed Certificate been surrendered.  If delivery of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition of delivery that the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such delivery shall have paid to the Exchange Agent any transfer and other Taxes required by reason of the delivery of the Merger Consideration to a Person other than the record holder of the Certificate surrendered or shall have established to the satisfaction of the Exchange Agent that such Tax either has been paid or is not applicable.

 

Section 4.9            Withholding Rights.  Each of AbbVie Limited and the Surviving Corporation shall be entitled to deduct and withhold from any consideration otherwise payable pursuant to this Agreement to any Person who was a holder of Shares immediately prior to the Effective Time such amounts as it is required to deduct and withhold with respect to the making of such payment under any applicable Tax Law.  To the extent that amounts are so withheld by AbbVie Limited or the Surviving Corporation, as the case may be, such withheld amounts (a) shall be remitted by AbbVie Limited or the Surviving Corporation, as applicable, to the applicable Governmental Entity, and (b) shall be treated for all purposes of this Agreement as having been paid to the holder of such Shares (which have been converted into AbbVie Limited Common Shares) in respect of which such deduction and withholding was made by the Surviving Corporation or AbbVie Limited, as the case may be.

 

Section 4.10          Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of AbbVie Limited Common Shares will be issued and any holder of Shares entitled to receive a fractional share of AbbVie Limited Common Shares but for this Section 4.10 shall be entitled to receive a cash payment in lieu thereof, which payment shall be calculated by the Exchange Agent and shall represent such holder’s proportionate interest in a share of AbbVie Limited Common Shares based on net proceeds from the sale by the Exchange

 

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Agent on behalf of such holder of the aggregate fractional shares of AbbVie Limited Common Stock that such holder otherwise would be entitled to receive.  Any such sale shall be made by the Exchange Agent within five business days after the date upon which the Certificate(s) (or affidavit(s) of loss in lieu of the Certificates(s) as provided in Section 4.8) that would otherwise result in the delivery of such fractional shares of AbbVie Limited Common Shares have been received by the Exchange Agent or, in the case of Uncertificated Shares, promptly after the Effective Time.

 

ARTICLE V

 

Treatment of AbbVie Stock Plan Awards

 

Section 5.1            Treatment of Options.  Each option to acquire Shares granted or outstanding under the AbbVie Stock Plans (each, an “AbbVie Option”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall, as of the Effective Time, cease to represent an option to acquire Shares and shall be converted, at the Effective Time, into an option to acquire that number of AbbVie Limited Common Shares equal to the number of Shares subject to such AbbVie Option immediately prior to the Effective Time, at a price per share equal to the per share exercise price specified in such AbbVie Option immediately prior to the Effective Time (as converted, an “AbbVie Limited Option”).  Subject to applicable Law, the AbbVie Limited Options shall be subject to material terms (including vesting conditions) substantially similar to those applied to the original AbbVie Options immediately prior to the Effective Time.

 

Section 5.2            Treatment of Restricted Shares.  Each restricted Share granted or outstanding under the AbbVie Stock Plans (each, an “AbbVie Restricted Share”), that is outstanding immediately prior to the Effective Time shall, as of the Effective Time, cease to be a Share and shall be converted into a restricted AbbVie Limited Common Share (as converted, an “AbbVie Limited Restricted Share”).  Subject to applicable Law, the AbbVie Limited Restricted Shares shall be subject to material terms (including vesting conditions) substantially similar to those applied to the original AbbVie Restricted Shares immediately prior to the Effective Time.

 

Section 5.3            Treatment of Restricted Stock Units.  Each restricted stock unit granted or outstanding under the AbbVie Stock Plans (each, an “AbbVie RSU”) that is outstanding immediately prior to Effective Time shall, as of the Effective Time, cease to represent an award based on Shares and shall be converted into an award based on that number of AbbVie Limited Common Shares equal to the number of Shares subject to the AbbVie RSU immediately prior to the Effective Time (as converted, an “AbbVie Limited RSU”).  Subject to applicable Law, the AbbVie Limited RSUs shall be subject to material terms (including vesting conditions) substantially similar to those applied to the original AbbVie RSUs immediately prior to the Effective Time.

 

Section 5.4            Treatment of Other Share-Based Awards.  Each award (other than AbbVie Options, AbbVie Restricted Shares and AbbVie RSUs) based on Shares and granted or outstanding under the AbbVie Stock Plans (each, an “AbbVie Share-Based Award”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall, as of the Effective Time, cease to represent an award based on Shares and shall be converted into an

 

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award based on that number of AbbVie Limited Common Shares equal to the number of Shares subject to such AbbVie Share-Based Award immediately prior to the Effective Time (as converted, an “AbbVie Limited Share-Based Award”).  Subject to applicable Law, the AbbVie Limited Share-Based Awards shall be subject to material terms (including vesting conditions) substantially similar to those applied to the original AbbVie Share-Based Awards immediately prior to the Effective Time.

 

Section 5.5            Notice of Rights.  As soon as practicable after the Effective Time, AbbVie Limited shall deliver to the holders of AbbVie Options, AbbVie Restricted Shares, AbbVie RSUs and AbbVie Share-Based Awards (collectively, the “AbbVie Equity Awards”) appropriate notices setting forth such holders’ rights pursuant to the respective AbbVie Stock Plans and agreements evidencing the grant of such AbbVie Equity Awards and stating, as applicable, that such AbbVie Equity Awards have been assumed or replaced by AbbVie Limited and shall (subject to applicable Law) continue in effect subject to material terms substantially similar to those applied to the original AbbVie Equity Award immediately prior to the Effective Time.

 

Section 5.6            Corporate Actions.  At or prior to the Effective Time, AbbVie, the board of directors of AbbVie and the compensation committee of the board of directors of AbbVie, as applicable, shall adopt any resolutions and take any actions which are necessary to effectuate the provisions of Sections 5.1, 5.2, 5.3 and 5.4.  AbbVie shall take all actions necessary to ensure that, from and after the Effective Time, AbbVie Limited will not be required to deliver Shares or other capital stock of AbbVie to any Person pursuant to or in settlement of AbbVie Equity Awards.  AbbVie Limited shall reserve for issuance a number of AbbVie Limited Common Shares at least equal to the number of AbbVie Limited Common Shares that will be subject to AbbVie Limited Options, AbbVie Limited Restricted Shares, AbbVie Limited RSUs and AbbVie Limited Share-Based Awards (collectively, the “AbbVie Limited Equity Awards”) as a result of the actions contemplated by Sections 5.1, 5.2, 5.3 and 5.4.  Subject to applicable Law, AbbVie Limited shall take all corporate action necessary to assume the AbbVie Stock Plans or to adopt share plans having material terms substantially similar to the AbbVie Stock Plans and covering the AbbVie Limited Equity Awards resulting from the application of this Section 5.6.

 

ARTICLE VI

 

Condition, Termination and Amendments

 

Section 6.1            Condition.  The respective obligation of each party to effect the Merger is subject to the Shire Acquisition having become Effective prior to the Effective Time.

 

Section 6.2            Termination.  Subject to Section 7.4, this Agreement may be terminated at any time prior to the Effective Time by a written instrument executed by each of the parties hereto, whether before or after adoption of this Agreement by the holders of Shares and the sole member of Merger Sub.

 

Section 6.3            Amendment.  Subject to Section 7.4, and subject to the provisions of applicable Law, at any time prior to the Effective Time, this Agreement may be amended,

 

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modified or supplemented in writing by the parties hereto, if such action has been approved by action of the board of directors (or equivalent governing body) of each the respective parties.

 

ARTICLE VII

 

Miscellaneous Provisions

 

Section 7.1            Certain Definitions.  Terms capitalized but not defined herein have the meanings ascribed to them in the Co-Operation Agreement.  As used in this Agreement, the following terms have the meanings set forth below:

 

(a)           “AbbVie Stock Plans” means the AbbVie 2013 Incentive Stock Program, the AbbVie 2013 Employee Stock Purchase Plan for Non-U.S. Employees and the AbbVie Non-Employee Directors’ Fee Plan.

 

(b)           “business day” means any day ending at 11:59 p.m. (Eastern Time) other than a Saturday or Sunday or a day on which banks are required or authorized to close in the County of New York or in Jersey.

 

(c)           “Effective” means that the Shire Acquisition shall have become effective in accordance with its terms and AbbVie Limited Common Shares shall have been issued to Shire Shareholders (as such terms are defined in the Press Announcement) and such persons shall have been registered as the owners of such shares in the register of members of AbbVie Limited in accordance with the Scheme Order or, in the event AbbVie has elected to implement the Shire Acquisition by way of a takeover offer in accordance with Part 18 of the Jersey Companies Law and the Press Announcement, such takeover offer shall have been declared unconditional in all respects and shall have closed and AbbVie Limited Common Shares shall have been issued to Shire Shareholders who have accepted the takeover offer and such persons shall have been registered as the owners of such shares in the register of members of AbbVie Limited.

 

(d)           “Governmental Entity” means any domestic or foreign governmental or regulatory authority, agency, commission, body, court or other legislative, executive or judicial governmental entity.

 

(e)           “Jersey Companies Law” means the Companies (Jersey) Law 1991, as amended.

 

(f)            “Law” means any federal, state, local or foreign laws or regulations (whether civil, criminal or administrative), common law, statutory instruments, treaties, conventions, directives, regulations or rules made thereunder, ordinance, bylaws, judgments, orders, injunctions, decrees, resolutions, arbitration awards, agency requirements, writs, franchises, variances, exemptions, approvals, licenses or permits in any applicable jurisdiction (including the United States, the United Kingdom, the European Union, Jersey or elsewhere), including any rules of any relevant Governmental Entity.

 

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(g)           “Person” means any individual, corporation, general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Entity, or other entity of any kind or nature.

 

(h)           “Press Announcement” has the meaning given to such term in the Co-Operation Agreement.

 

(i)            “Shire Adverse Recommendation Change” has the meaning given to such term in the Co-Operation Agreement.

 

(j)            “Tax” means all United States federal, state, local and non-United States income, gain, profits, windfall profits, franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions.

 

(k)           “Treasury Shares” means Shares held in treasury by AbbVie.

 

Section 7.2            Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.

 

Section 7.3            Interpretation.  The headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.  Where a reference in this Agreement is made to a Section, such reference shall be to a Section of to this Agreement unless otherwise indicated.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”

 

Section 7.4            Rights of Shire.  Unless the Co-Operation Agreement has been terminated or a Shire Adverse Recommendation Change has occurred, without the prior written consent of Shire (which shall not be unreasonably withheld, conditioned or delayed):

 

(a)           neither the Closing Date nor the time or place of Closing shall be changed;

 

(b)           this Agreement shall not be terminated; and

 

(c)           except for de minimis amendments to Article V or amendments required to add one or more wholly owned subsidiaries within the chain of ownership of the entities referred to in the Recitals to this Agreement, this Agreement may not be amended, modified or supplemented.

 

It is expressly agreed that, unless the Co-Operation Agreement has been terminated or a Shire Adverse Recommendation Change has occurred, Shire shall be a third party beneficiary of this Agreement and shall be entitled to enforce the covenants contained in this Section 7.4 and the obligations of AbbVie and its Subsidiaries set forth in this Agreement to the fullest extent as though Shire were a party hereto.

 

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Section 7.5            No Third Party Beneficiaries.  Except as provided in Sections 7.4 and 7.6, the parties hereto agree that this Agreement is solely for the benefit of the parties hereto, in accordance with and subject to the terms of this Agreement, and nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon any Person other than the parties hereto any right, remedy or claim under or by reason of this Agreement.

 

Section 7.6            Indemnification.  At and after the Effective Time, AbbVie Limited shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director or officer of AbbVie or Merger Sub and each Person who, while a director or officer of AbbVie or Merger Sub, served at the request of AbbVie as a director, officer, trustee, employee or agent of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by AbbVie (each, together with his or her respective heirs, executors and administrators, an “Indemnified Party”), against all costs and expenses (including advancing attorneys’ fees and expenses in advance of the final disposition of any actual or threatened claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any actual or threatened action, suit or proceeding (whether arising before, at or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in such Person’s capacity as a director or officer AbbVie or Merger Sub or, while a director or officer of AbbVie or Merger Sub, serving at the request of AbbVie as a director, officer, trustee, employee or agent of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by AbbVie (including actions or omissions arising out of the transactions contemplated by the Shire Acquisition or this Agreement).  It is expressly agreed that the Indemnified Parties shall be third party beneficiaries of this Section 7.5 and shall be entitled to enforce the covenants contained in this Section 7.5, and the rights of each Indemnified Party under this Section 7.5 shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the certificates of incorporation and bylaws (or similar governing documents) of AbbVie or Merger Sub.

 

Section 7.7            Governing Law.

 

(a)           THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN, AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF, THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF TO THE EXTENT THAT SUCH PRINCIPLES WOULD DIRECT A MATTER TO ANOTHER JURISDICTION.

 

(b)           Any suit, claim, action, hearing, charge, or other procedure of any nature (an “Action”) involving the parties hereto, arising out of or relating to this Agreement or the transactions contemplated hereby shall be brought solely and exclusively in the Court of Chancery in the State of Delaware, or in any direct appellate court therefrom; provided that if (and only after) such courts determine that they lack subject matter jurisdiction over any such Action, such Action shall be brought solely and exclusively in the Federal courts of the United States located in the State of Delaware, or any direct appellate court therefrom.  Each of the parties hereto agrees that a final judgment (subject to any appeals therefrom) in any such Action

 

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shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.  Each party hereby irrevocably submits to the exclusive jurisdiction of such courts in respect in any Action between the parties arising out of or relating to this Agreement or the transactions contemplated hereby, and hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objections which it may now or hereafter have to the laying of venue of any Action between the parties arising out of or relating to this Agreement or the transactions contemplated hereby in any such court in accordance with the provisions of this Section 7.3(b).  Each of the parties hereto irrevocably waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Action in any such court.  Nothing in this Agreement will affect the right of any party to this Agreement.

 

(c)           EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.3(c).

 

Section 7.8            Specific Performance.  The parties agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof.  It is accordingly agreed that if the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with Section 7.7, this being in addition to any other remedy to which such party is entitled at law or in equity.

 

[Remainder of Page Intentionally Left Blank.]

 

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date hereof.

 

 

 

ABBVIE PRIVATE LIMITED

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

 

 

ABBVIE INC.

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

 

 

 

 

 

ABBVIE VENTURES LLC

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

[Signature Page — Agreement and Plan of Merger]

 


 

ANNEX A

 

Indicative Value for Clauses 7.1 and 7.3

 

Indicative Value of Cash and Shares to be delivered:

£

53.20

 

 

Number of Issued Shire Shares:

598,420,949

 


 

ANNEX B

 

Exchange Rate

 

Exchange Rate $1 = £0.5840

 

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Filed: July 18th, 2014
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