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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
(1)
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SHIRE PLC, a
company incorporated in
England and Wales under the Companies Act 1985 with registered number
05492592 (the “Original
Issuer”);
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(2)
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SHIRE LIMITED, a
company incorporated in
Jersey under the Companies (Jersey) Law 1991 with registered number 99854
(the “New
Issuer”);
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(3)
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THE BANK OF NEW YORK
(the “Principal
Paying and Conversion Agent” and, together with any other paying
and conversion agents appointed from time to time in accordance with the
Agency Agreement, the “Paying and Conversion
Agents”); and
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(4)
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BNY CORPORATE TRUSTEE SERVICES
LIMITED (the “Trustee”, which
expression, where the context so admits, includes any other trustee for
the time being under the Trust
Deed).
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(A)
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The Original
Issuer issued U.S.$1,100,000,000 2.75 per cent. Convertible Bonds due 2014
which are constituted under the Trust Deed. The terms of the
appointment of the Principal Paying and Conversion Agent (and any other
Paying and Conversion Agents from time to time) in respect of the Bonds
are set out in the Agency
Agreement.
|
(B)
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The New Issuer
is currently a wholly owned Subsidiary of the Original Issuer, but will,
pursuant to the 2008 Newco Scheme, be interposed between the Original
Issuer and its then shareholders so as to become the new ultimate holding
company of the Shire group.
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(C)
|
Immediately
prior to the 2008 Newco Scheme becoming effective, it is proposed that the
New Issuer will, with the consent of the Trustee and pursuant to Clause
14.2 (Substitution) of the
Trust Deed and the Conditions of the Bonds, be substituted in place of the
Original Issuer as principal obligor under the Bonds, on the terms, and
subject to the conditions, of the Supplemental Trust
Deed.
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(D)
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On and from
the substitution of the New Issuer in place of the Original Issuer as
principal obligor under the Bonds, it is proposed that the New Issuer will
accede to the Agency Agreement, the Original Issuer will cease to be party
to the Agency Agreement and the Agency Agreement will be amended and
restated, on the terms, and subject to the conditions, of this
Agreement.
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1.1
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Definitions: Capitalised
terms defined in the Trust Deed, the Conditions or the Agency Agreement
but not herein shall, when used herein (including in the paragraphs
above), have the meaning given to them in the Trust Deed, the Conditions
or the Agency Agreement. In addition, the following expressions
shall have the following meanings:
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1.2
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Construction: Clause
1.2 (Contracts (Rights
of Third Parties) Act 1999) of the Agency Agreement shall have
effect, mutatis mutandis, as if set out in full in this
Agreement.
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2.1
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Accession: On
and from the Effective Time, and provided that the New Issuer shall have
complied with its obligations under Clause 5.1 (Conditions precedent)
of the Supplemental Trust Deed:
|
|
(B)
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the Agency
Agreement shall be amended and restated in the form set out in Schedule 1
(Form of Amended and
Restated Agency Agreement)
hereto.
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2.2
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Release: On
and from the Effective Time, the Original Issuer shall cease to be a party
to, and shall be released from all its obligations under, the Agency
Agreement.
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4.1
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Effective
Time: The New Issuer shall promptly inform the Trustee
and the Principal Paying and Conversion Agent of the occurrence of the
Effective Time.
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4.2
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2008 Newco Scheme and related
matters: The Principal Paying and Conversion Agent
hereby agrees to provide such reasonable co-operation as the Original
Issuer and the New Issuer may request in relation to the implementation of
the 2008 Newco Scheme and related matters, including, without limitation,
providing its consent to any capital reduction to be undertaken by the New
Issuer (so long as such capital reduction complies with paragraph (e) of
Condition 10 (Undertakings), as
amended and restated pursuant to the Supplemental Trust Deed), provided
that nothing in this Clause 4.2 shall require the Principal Paying and
Conversion Agent to act in a way that is in breach of any duty which it
owes under the Agency Agreement.
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7.1
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Governing
law: This Agreement shall be governed by and construed
in accordance with English law.
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7.2
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Jurisdiction: The
courts of England are to have jurisdiction to settle any dispute arising
out of or in connection with this Agreement. Accordingly, any
proceeding, suit or action arising out of or in connection with this
Agreement (“Proceedings”) may be
brought in the courts of England. Each party to this Agreement
hereby:
|
|
(A)
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waives (and
agrees not to raise) any objection, on the ground of forum non conveniens or
on any other ground, to the taking of proceedings in the courts of
England;
|
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(B)
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agrees that a
judgment against it in Proceedings brought in England shall be conclusive
and binding upon it and may be enforced in any other jurisdiction;
and
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EXECUTED
by
|
)
|
||
SHIRE
PLC
|
)
|
............................................Attorney
|
|
acting by its
duly authorised attorney
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)
|
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EXECUTED
by
|
)
|
||
SHIRE
LIMITED
|
)
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............................................Attorney
|
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acting by its
duly authorised attorney
|
)
|
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EXECUTED
by
|
)
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............................................Attorney
|
|
THE
BANK OF NEW YORK
|
)
|
||
acting by its
lawful attorney
|
)
|
||
EXECUTED
by
|
)
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............................................Attorney
|
|
BNY
CORPORATE TRUSTEE SERVICES LIMITED
|
)
|
||
acting by two
of its lawful attorneys
|
)
|
............................................Attorney
|
|