ASSIGNMENT AND NOVATION
AGREEMENT
THIS
ASSIGNMENT AND NOVATION AGREEMENT (this "Agreement") is made as of April 16,
2008 by and among Shire Limited (“NewShire”), a public company limited by shares
incorporated under the laws of Jersey, Shire
plc ("OldShire"), a public limited company incorporated
under the laws of England and Wales, and JPMorgan Chase Bank, N.A., (the
"Depositary").
WHEREAS, OldShire has entered into a
Deposit Agreement dated as of November 21, 2005 (the "Deposit Agreement") with
the Depositary and all holders from time to time of American Depositary Receipts
issued thereunder;
WHEREAS, OldShire will undergo a scheme
of arrangement (the "Scheme of Arrangement") pursuant to which a new listed
holding company of OldShire, NewShire, will be put in place through a court
approved scheme of arrangement under sections 895 to 899 of the Companies
Act
2006;
WHEREAS, in connection with the Scheme
of Arrangement, American Depositary Shares (“ADSs”) of OldShire issued under the
Deposit Agreement will become ADSs of NewShire without any action
required on the part of the holders thereof;
WHEREAS, in connection with the Scheme
of Arrangement, OldShire desires to transfer and assign to NewShire its rights,
duties and obligations under the Deposit Agreement and to cause the Deposit
Agreement to be novated in favor of NewShire;
WHEREAS, NewShire agrees that the
Deposit Agreement shall be novated in its favor and is willing to acquire the
rights and assume the duties and obligations of OldShire under the Deposit
Agreement on the terms and conditions set forth herein; and
WHEREAS, the Depositary agrees to the
novation of the Deposit Agreement in favor of NewShire on the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. OldShire hereby assigns, transfers and
conveys to NewShire, effective immediately prior to the time at which the Scheme
of Arrangement becomes effective in accordance with its terms (the "Effective
Time"), all of OldShire's rights, duties and obligations under the Deposit
Agreement and the Depositary consents to such assignment, transfer and
conveyance.
2. NewShire hereby accepts such assignment
and covenants and agrees with OldShire and the Depositary that it will, from and
including the Effective Time:
(i) perform and discharge all
of OldShire’s duties and obligations under the Deposit Agreement and otherwise
observe and perform all of the provisions of the Deposit Agreement binding on
OldShire; and
(ii) be liable to the Depositary for any
breach, non-observance or non-performance by NewShire or OldShire of their
respective obligations under the Deposit Agreement whether occurring on, prior
to, or following the Effective Time;
in each case as if NewShire had been a
party to the Deposit Agreement in place of OldShire from the date on which the
Deposit Agreement was entered into and the Depositary accepts the performance
and liability of NewShire in place of OldShire.
3. With effect from and including the
Effective Time, OldShire shall:
(i) be released from the further
performance of its duties and obligations under the Deposit Agreement;
and
(ii) cease to have any rights under the
Deposit Agreement, including without limitation any rights to indemnification or
in respect of any breach, non-observance or non-performance by the Depositary of
its obligations under the Deposit Agreement, whether past, present or
future.
4. OldShire, NewShire and the Depositary
hereby agree that this Agreement shall constitute a novation of the rights and
obligations of OldShire under the Deposit Agreement and, accordingly, with
effect from and including the Effective Time all of the rights, duties and
obligations of OldShire under the Deposit Agreement are hereby assumed by
NewShire and the Depositary shall perform its obligations under the Deposit
Agreement and be bound by its terms in every way as if NewShire had at all times
been a party to the Deposit Agreement.
5. Each of OldShire, NewShire and the
Depositary represents and warrants to each other party that:
(i) it has full power,
authority and legal right to enter into and perform this
Agreement;
(ii) it has taken all
necessary legal and corporate action to authorize the execution and performance
of this Agreement; and
(iii) this Agreement
constitutes a legal, valid and binding obligation of such
party.
6. Each of NewShire and the Depositary
agree that in the Deposit Agreement (i) the terms "
deliver", "
execute", "
issue", "
register
", "surrender
", "transfer
" or "
cancel" are meant to also refer to entries or
electronic transfers in the direct registration system (which is the system for
the uncertificated registration of ownership of securities established by The
Depository Trust Company and utilized by the Depositary pursuant to which the
Depositary may record the ownership of ADRs without the issuance of a
certificate, which ownership shall be evidenced by periodic statements issued by
the Depositary to the holders entitled thereto), (ii) "ADRs" as such term is
defined in the Deposit Agreement, may either be in physical certificated form or
in book-
entry form through such direct
registration system and (iii) references in the Deposit Agreement to such ADRs
shall include certificated ADRs as well as those issued through the direct
registration system, unless the context otherwise requires.
7. OldShire and NewShire hereby instruct
the Depositary that, in relation to dividends on Deposited Securities (as
defined in the Deposit Agreement), to the extent that holders of Shares of
NewShire are permitted to elect to receive dividends from OldShire (a company
resident for tax purposes in the United Kingdom) or from Shire Limited (a
company resident for tax purposes in the Republic of Ireland), the Depositary
shall elect to receive all such dividends from OldShire and shall be entitled to
any and all protections afforded to the Depositary under the Deposit Agreement
in connection with abiding by such instructions. The Depositary
agrees to abide by such instruction.
8. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns.
9. The parties hereto agree that they will
take all actions reasonably necessary to carry out the matters contemplated by
this Agreement.
10. This Agreement constitutes the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
11. No amendment, modification or waiver of
any provision of this Agreement, nor consent to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto, and then such amendment, modification or waiver shall be
effective only in the specific instance and for the specific purpose for which
given. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege.
12. If any term or provision of this
Agreement should be declared invalid by a court of competent jurisdiction, the
remaining terms and provisions of this Agreement shall be unimpaired and the
invalid term or provision shall be replaced by such valid term or provision as
comes closest to the intention underlying the invalid term or
provision.
13. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard to its conflict of laws
principles.
14.
This Agreement may be executed in
several counterparts each of which will be deemed to be an original and together
will constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have
executed this Agreement as of the date first written above.
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SHIRE
LIMITED
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By:
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/s/Tatjana
May
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Name:
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Tatjana May
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Title:
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Company Secretary and General
Counsel
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SHIRE PLC
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By:
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/s/Tatjana
May
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Name:
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Tatjana May
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Title:
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Company Secretary and General
Counsel
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JPMORGAN CHASE BANK,
N.A.
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By:
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/s/Melinda L.
VanLuit
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Name:
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Melinda L.
VanLuit
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Title:
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Vice
President
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