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As Of Filer Filing For·On·As Docs:Size Issuer Agent 5/23/08 Shire plc 8-K:1,2,8,9 5/23/08 17:3.9M Davis Polk & … LLP 01/FA |
Document/Exhibit Description Pages Size 1: 8-K Current Report HTML 73K 2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 629K 3: EX-4.1 Instrument Defining the Rights of Security Holders HTML 30K 4: EX-4.2 Instrument Defining the Rights of Security Holders HTML 108K 5: EX-4.3 Instrument Defining the Rights of Security Holders HTML 20K 6: EX-4.4 Instrument Defining the Rights of Security Holders HTML 64K 7: EX-10.1 Material Contract HTML 1.29M 8: EX-10.2 Material Contract HTML 75K 9: EX-10.3 Material Contract HTML 51K 10: EX-10.4 Material Contract HTML 25K 11: EX-10.5 Material Contract HTML 18K 12: EX-10.6 Material Contract HTML 32K 13: EX-10.7 Material Contract HTML 88K 14: EX-99.1 Miscellaneous Exhibit HTML 62K 15: EX-99.2 Miscellaneous Exhibit HTML 50K 16: EX-99.3 Miscellaneous Exhibit HTML 20K 17: EX-99.4 Miscellaneous Exhibit HTML 20K
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(1)
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SHIRE LIMITED, a company
incorporated in Jersey (registered number 99854) whose registered office
is at 22 Grenville Street, St Hellier, Jersey JE4 8PX (the “Company”);
and
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(2)
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«NAMEOFDIRECTOR»,
of Hampshire
International Business Park, Basingstoke, Hampshire RG24 8EP (the “Director”).
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(B)
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The Company
has agreed to indemnify the Director, and the Director has agreed to give
certain undertakings to the Company, in each case on the terms of and
subject to the conditions of this
Agreement.
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(A)
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“Associated
Company”
means any Subsidiary of the Company, any holding company of the
Company (if created) and any Subsidiary of that holding company (if
created);
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(F)
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a reference to
any statute or statutory provision shall be construed as a reference to
the same as it may have been, or may from time to time be, amended,
modified or re-enacted; and
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(G)
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headings and
titles are inserted for convenience only and are to be ignored in the
interpretation of this Agreement.
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1.2
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If there is
any inconsistency between the provisions of this Agreement and the
provisions of any contract of employment or terms of appointment in effect
on the date of this Agreement between the Director and the Company, the
provisions of this Agreement shall
prevail.
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(A)
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in respect of
the Director’s acts or omissions (whether before, on or after the date of
this Agreement) while, or in the course of acting as, a director or
employee of the Company or a director or employee of any Subsidiary;
and/or
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(B)
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to pay a sum
payable to a regulatory authority by way of a penalty in respect of
non-compliance with any requirement of a regulatory
nature;
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(D)
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in connection
with any application made under Article 212 of the Companies Law in
connection with which the court refuses to grant him relief;
and
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(E)
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unless, in
connection with the matters giving rise to the liability, the Director
acted in good faith with a view to the best interests of the Company, or
in connection only with any liability incurred in defending civil
proceedings (regardless of whether the Director has acted in good faith
with a view to the best interests of the Company), judgment is given in
favour of the Director.
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(C)
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incurred by
the Director in defending any civil proceedings in which judgment is given
against him; and
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(D)
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incurred by
the Director in connection with any application made under Article 212 of
the Companies Law in which the court refuses to grant him
relief.
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(A)
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Subject to the
provisions of this Agreement, the Company agrees to loan to the Director,
on an interest free basis, such funds as may be required to meet any
expenditure incurred or to be incurred by him, in defending any claim,
action or proceedings falling within the scope of such claims, actions, or
proceedings as are covered by the provisions of Clause 2.1 and
2.3.
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(B)
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Subject to
Clause 2.5(C) below, if the Company loans funds to the Director pursuant
to Clause 2.5(A) then such loan shall become due and repayable upon any
conviction of, judgment given against, or refusal of relief to, the
Director becoming final or the claim, action, or proceeding otherwise
being settled or terminating.
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(C)
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In the event
that the liability to which the loan relates can properly be discharged by
way of indemnity in accordance with Clause 2, the obligation to repay such
loan will be discharged by way of indemnity in accordance with this Clause
2.
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3.1
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Without
prejudice to the sub-clause 3.2, if the Director becomes aware of any
claim, action or demand against him which could give rise to any claim,
action or demand by him against the Company under Clause 2.1 (referred to
herein as a “Third
Party Claim”), the Director
shall:
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(A)
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within 20 days
of becoming so aware, notify the Company in writing of the existence of
such Third Party Claim, giving reasonable details in that notification
(or, to the extent that such details are not available to the Director at
that time, as soon as possible thereafter) of the person(s) making such
Third Party Claim, the circumstances leading to, and the grounds for, that
Third Party Claim and the quantum or possible quantum of the Third Party
Claim;
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(B)
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subject to the
Company agreeing to pay the reasonable out-of-pocket expenses of the
Director, give such access to premises, chattels, documents and records to
the Company and its professional advisers as the Company may reasonably
request;
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(C)
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take such
action and give such information and assistance in order to avoid,
dispute, resist, mitigate, settle, compromise, defend or appeal any Third
Party Claim or judgment or adjudication with respect thereto as the
Company may reasonably request;
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(D)
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at the request
of the Company, allow the Company to take the sole conduct of such actions
as the Company may deem appropriate in connection with any such Third
Party Claim in the name of the Director and in that connection the
Director shall give or cause to be given to the Company all such
assistance as the Company may reasonably require in avoiding, disputing,
resisting, mitigating, settling, compromising, defending or appealing any
such Third Party Claim and shall instruct such solicitors or other
professional advisers as the Company may nominate to act on behalf of the
Director in relation thereto but to act in accordance with the Company’s
sole instructions;
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(E)
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make no
admission of liability, agreement, settlement or compromise with any
person in relation to any such Third Party Claim without the prior written
consent of the
Company; and
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(F)
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take all
reasonable action to mitigate any loss suffered by him in respect of such
Third Party Claim.
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3.2
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In any event,
the Company shall be entitled at any stage and at its sole discretion to
settle any Third Party Claim and shall be under no obligation in this
respect to notify the Director of its decision so to settle such Third
Party Claim.
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3.3
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If the
Director intends to make a claim, action or demand against the Company
under Clause 2.3 (referred to herein as a “Costs
Claim”) the Director shall:
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(A)
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promptly
notify the Company in writing of his intention to make such a Costs Claim,
giving reasonable details in that notification (or, to the extent that
such details are not available to the Director at that time, as soon as
possible thereafter) of the grounds for that Costs Claim and the quantum
or possible quantum of the Costs
Claim;
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(B)
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subject to the
Company agreeing to pay the reasonable out-of-pocket expenses of the
Director, take such action and give such information and access to
premises, chattels, documents and records to the Company and its
professional advisers as the Company may reasonably
request;
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4.1
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A notice under
this Agreement shall only be effective if it is in
writing. Faxes are permitted. E-mail is not
permitted.
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4.2
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Notices under
this Agreement shall be sent to a party at its address or number and, in
the case of the Company, for the attention of the individual, set out
below:
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Party and title of
individual
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Address
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Fax number
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Company
Attention:
Global General Counsel
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22 Grenville
Street,
St
Hellier,
Jersey JE4
8PX
with a copy
to:
Hampshire
International Business Park, Basingstoke, Hampshire RG24
8EP
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+44 1256 894
710
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Director
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Hampshire
International Business Park, Basingstoke, Hampshire RG24
8EP
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4.3
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Either party
may change its notice details on giving notice to the other party of the
change in accordance with this Clause. That notice shall only
be effective on the date falling two Business Days after the notification
has been received or on such later date as may be specified in the
notice.
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4.4
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Subject to
sub-clause 4.5 and without prejudice to sub-clause 4.6, any notice given
under this Agreement shall not be effective until it is received by the
intended recipient.
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4.5
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Any notice
which is received by its intended recipient under this Agreement outside
normal working hours in the place to which it is addressed shall be deemed
to have been given at the start of the next period of normal working hours
in such place.
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4.6
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No notice
given under this Agreement may be withdrawn or revoked except by notice
given in accordance with this
Clause.
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5.1
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No delay or
omission by either party to this Agreement in exercising any right, power
or remedy provided by law or under this Agreement
shall:
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5.2
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The single or
partial exercise of any right, power or remedy provided by law or under
this Agreement shall not preclude any other or further exercise of it or
the exercise of any other right, power or
remedy.
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5.3
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The rights,
powers and remedies provided in this Agreement are cumulative and not
exclusive of any rights, powers and remedies provided by
law.
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(A)
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the legality,
validity or enforceability in that jurisdiction of any other provision of
this Agreement; or
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(B)
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the legality,
validity or enforceability under the law of any other jurisdiction of that
or any other provision of this
Agreement.
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8.1
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This
Agreement, the Company’s Articles of Association and, subject to Clause
1.2, any provision of any employment contract or terms of appointment
under which the Director is, or is entitled to be, indemnified by the
Company, constitute the whole and only agreement between the parties
relating to the indemnification of the Director by the Company and the
obligations of the parties in relation to Third Party Claims and Costs
Claims.
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9.1
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The Company
may at any time assign all or any part of the benefit of, or its rights or
benefits under, this Agreement to any
Subsidiary.
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9.2
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The Director
shall not assign, or purport to assign, all or any part of the benefit of,
or his rights or benefits under, this Agreement, provided that the benefit
of, and rights under, this Agreement shall ensure to the benefit of, and
be enforceable by, the successors, heirs and personal representatives of
the Director.
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10.1
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Subject to
Clause 11.3, each party shall treat as confidential all information
obtained as a result of entering into or performing this Agreement which
relates to:
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(A)
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not disclose
any Confidential Information to any person other than any of its
professional advisers and, in the case of the Company, directors and
employees and directors and employees of any Subsidiary who need to know
such information in order to discharge their respective
duties; and
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(B)
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procure that
any person to whom any Confidential Information is disclosed by it
complies with the restrictions contained in this Clause as if such person
were a party to this Agreement.
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10.3
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Notwithstanding
the other provisions of this Clause, either party may disclose
Confidential Information:
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(B)
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in the case of
the Company, if and to the extent required by any securities exchange or
regulatory or governmental body to which the Company is subject or
submits, wherever situated, including (amongst other bodies) the Stock
Exchange, the Jersey Financial Services Commission, the Financial Services
Authority or The Panel on Takeovers and Mergers, whether or not the
requirement for information has the force of
law;
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(D)
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if and to the
extent the Confidential Information has come into the public domain
through no fault of that
party; or
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(E)
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if and to the
extent the other party has given prior written consent to the disclosure,
such consent not to be unreasonably withheld or
delayed.
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10.4
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The
restrictions contained in this Clause shall continue to apply after the
Director ceases to be a director of the Company, without limit in
time.
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11.1
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This Agreement
may be executed in any number of counterparts, and by the parties on
separate counterparts, but shall not be effective until each party has
executed at least one counterpart.
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11.2
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Each
counterpart shall constitute an original of this Agreement, but all the
counterparts shall together constitute but one and the same
instrument.
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(A)
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irrevocably
appoints Mourant & Co Secretaries Limited of 22 Grenville Street, St
Helier, Jersey JE4 8PX, as its agent for service of process in relation to
any proceedings before the Jersey courts in connection with this
Agreement;
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(B)
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agrees that,
if a process agent ceases to act as process agent or no longer has an
address in Jersey, it shall appoint a substitute process agent acceptable
to the Company within ten Business Days and to deliver to the Company a
copy of the new process agent's acceptance of that appointment, and
failing this, the Company may appoint another agent for this purpose;
and
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(C)
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agrees that
the failure by a process agent to notify him of any process will not
invalidate the proceedings
concerned.
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14.2
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The Company
shall send by post to the Director a copy of any document served on his
agent for service of process. However no failure or delay in so
doing shall prejudice the effectiveness of service of such document or
give rise to any claim by the Director against the
Company.
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Company
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SIGNED for and on behalf
of
SHIRE
LIMITED
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)
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Director
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SIGNED by
«NAMEOFDIRECTOR»
in the
presence of:
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………………………………………………………
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Witness
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………………………………………………………
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Address
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Dated
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,
2008
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