SHAREHOLDER’S AGREEMENT BY AND AMONG ELAN CORPORATION, PLC ELAN SCIENCE THREE LIMITED AND ALKERMES, PLC DATED AS OF [•], 2011
Exhibit
2.2
EXHIBIT A
SHAREHOLDER’S AGREEMENT
BY AND AMONG
ELAN CORPORATION, PLC
ELAN SCIENCE THREE LIMITED
AND
ALKERMES, PLC
DATED AS OF [•], 2011
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I |
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| DEFINITIONS |
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| Section 1.1 | Definitions |
2 | ||||
| Section 1.2 | Other Definitional Provisions |
8 | ||||
| ARTICLE II |
||||||
| REPRESENTATIONS AND WARRANTIES |
||||||
| Section 2.1 | Representations and Warranties of the Company |
9 | ||||
| Section 2.2 | Representations and Warranties of the Shareholder and the Shareholder Parent |
10 | ||||
| ARTICLE III |
||||||
| CORPORATE GOVERNANCE |
||||||
| Section 3.1 | Board Representation |
11 | ||||
| Section 3.2 | Use of Information |
13 | ||||
| ARTICLE IV |
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| STANDSTILL; VOTING |
||||||
| Section 4.1 | Standstill Restrictions |
14 | ||||
| Section 4.2 | Attendance at Meetings |
17 | ||||
| Section 4.3 | Voting |
17 | ||||
| Section 4.4 | Preemption Rights |
17 | ||||
| ARTICLE V |
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| TRANSFER RESTRICTIONS |
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| Section 5.1 | Transfer Restrictions |
18 | ||||
| Section 5.2 | Legends on Shareholder Shares; Securities Act Compliance |
20 | ||||
| Section 5.3 | Change of Control of the Shareholder Parent |
22 | ||||
| ARTICLE VI |
||||||
| REGISTRATION RIGHTS |
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| Section 6.1 | Demand Request |
23 | ||||
| Section 6.2 | Piggy-Back Registration |
26 | ||||
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| Page | ||||||
| Section 6.3 | Termination of Registration Obligation |
28 | ||||
| Section 6.4 | Registration Procedures |
28 | ||||
| Section 6.5 | Registration Expenses |
33 | ||||
| Section 6.6 | Indemnification; Contribution |
34 | ||||
| Section 6.7 | Indemnification Procedures |
36 | ||||
| Section 6.8 | Shelf Take-Down |
37 | ||||
| Section 6.9 | Rule 144; Rule 144A |
37 | ||||
| Section 6.10 | Holdback |
37 | ||||
| ARTICLE VII |
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| MISCELLANEOUS |
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| Section 7.1 | Termination |
38 | ||||
| Section 7.2 | Injunctive Relief |
38 | ||||
| Section 7.3 | Assignments |
38 | ||||
| Section 7.4 | Amendments; Waiver |
38 | ||||
| Section 7.5 | Notices |
39 | ||||
| Section 7.6 | Governing Law; Submission to Jurisdiction;
Selection of Forum; Waiver of Trial by Jury |
40 | ||||
| Section 7.7 | Interpretation |
41 | ||||
| Section 7.8 | Entire Agreement; No Other Representations |
41 | ||||
| Section 7.9 | No Third-Party Beneficiaries |
41 | ||||
| Section 7.10 | Severability |
41 | ||||
| Section 7.11 | Counterparts |
41 | ||||
| Section 7.12 | Effectiveness |
41 | ||||
| Section 7.13 | Relationship of the Parties |
41 | ||||
| Section 7.14 | Accounting Matters |
42 | ||||
| Section 7.15 | Further Assurances |
42 | ||||
| Section 7.16 | Rights and Obligations of Parties |
42 | ||||
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SHAREHOLDER’S AGREEMENT, dated as of [•], 2011 (this “Agreement”), by and among
Alkermes, plc, a public limited company incorporated in Ireland (registered number [•]), whose
registered address is [•] (the “Company”), Elan Corporation, plc, a public limited company
incorporated in Ireland (registered number 30356), whose registered address is Xxxxxxxx Xxxxxxxx,
Xxxxx Xxxxx Xxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx (the “Shareholder Parent”), and Elan Science
Three Limited, a private limited company incorporated in Ireland (registered number 477401) and a
wholly-owned Subsidiary (as defined below) of Shareholder Parent, whose registered address is
Xxxxxxxxx, Xxxxxxx, Xx. Xxxxxxxxx, Xxxxxxx (the “Shareholder”).
W I T N E S S E T H:
WHEREAS, the Shareholder Parent, the Company, Antler Acquisition Corp., a corporation
organized and existing under the laws of the Commonwealth of Pennsylvania and an indirect
wholly-owned Subsidiary of the Company (“Merger Sub”), Alkermes, Inc., a corporation
organized and existing under the laws of the Commonwealth of Pennsylvania (“Alkermes”), and
certain other parties entered into a Business Combination Agreement and Plan of Merger, dated as of
May [9], 2011 (the “Merger Agreement”), pursuant to which, among other things, Merger Sub
will merge with and into Alkermes (the “Merger”), and Alkermes, as the surviving company of
the Merger, shall become an indirect wholly-owned Subsidiary of the Company upon the terms and
conditions set forth in the Merger Agreement;
WHEREAS, pursuant to the Merger Agreement and immediately following the Closing (as defined
below), the Shareholder will directly own and the Shareholder Parent will Beneficially Own (as
defined below) 31,900,000 of the outstanding Ordinary Shares (as defined below), constituting
approximately twenty-five percent (25%) of the total then outstanding Ordinary Shares, and the
former public shareholders of Alkermes will own the remaining approximately seventy-five percent
(75%) of the outstanding Ordinary Shares;
WHEREAS, the Company, the Shareholder Parent and the Shareholder desire to establish in this
Agreement certain terms and conditions concerning the Ordinary Shares to be owned by the
Shareholder as and from the Closing and related provisions concerning the Shareholder’s
relationship with and investment in the Company as and from the Closing;
WHEREAS, the execution and delivery of this Agreement is a condition to the obligations of the
Shareholder Parent and Alkermes to consummate the transactions contemplated by the Merger
Agreement; and
WHEREAS, this Agreement shall take effect at and as of the Closing.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms shall have the meanings indicated below:
“Affiliate” shall mean, with respect to any Person, any other Person that directly, or
indirectly through one or more intermediaries, Controls, is Controlled by or is under Common
Control with that Person; provided that the Shareholder Parent and the Shareholder shall
not be deemed to be an Affiliate of the Company and vice versa.
“Agreement” shall have the meaning set forth in the Preamble.
“Alkermes” shall have the meaning set forth in the Recitals.
“Automatic Shelf Registration” shall have the meaning set forth in Section 6.1(e).
“Beneficially Own” shall mean, with respect to any securities, (i) having “beneficial
ownership” of such securities for purposes of Rule 13d-3 or 13d-5 under the Exchange Act (as in
effect on the date of this Agreement); (ii) having the right to become the Beneficial Owner of such
securities (whether such right is exercisable immediately or only after the passage of time or the
occurrence of conditions) pursuant to any agreement, arrangement or understanding, or upon the
exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise; or (iii)
having an exercise or conversion privilege or a settlement payment or mechanism with respect to any
option, warrant, right, convertible security, stock appreciation, swap agreement or other security,
contract right or derivative position, whether or not currently exercisable, at a price related to
the value of the securities for which Beneficial Ownership is being determined or (A) having a
value determined in whole or part with reference to, or derived in whole or in part from, the value
of the securities for which Beneficial Ownership is being determined and (B) that increases in
value as the value of the securities for which Beneficial Ownership is being determined increases
or that provides to the holder an opportunity, directly or indirectly, to profit or share in any
profit derived from any increase in the value of the securities for which Beneficial Ownership is
being determined (excluding any interests, rights, options or other securities set forth in Rule
16a-1(c)(1)-(5) or (7) promulgated pursuant to the Exchange Act (as in effect on the date of this
Agreement). The terms “Beneficial Owner” and “Beneficial Ownership” shall have a
correlative meaning.
“Blackout Period” shall have the meaning set forth in Section 6.1(f).
“Board” shall mean, as of any date, the Board of Directors of the Company in office on
that date.
“Board Right Termination Event” shall be deemed to have occurred at such time, if any,
after the Closing, as the Shareholder shall cease to Beneficially Own Voting Securities
representing at least the Ownership Threshold.
“Board Right Period” shall have the meaning set forth in Section 3.1(a).
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“Business Day” shall mean any day other than a Saturday, Sunday, U.S. federal or Irish
public holiday or a day on which banks in New York, New York or Dublin, Ireland are authorized or
obligated by law to close.
“Change of Control” shall mean, with respect to any specified Person, any of the
following: (i) the sale, lease, transfer, conveyance or other disposition (including by way of
liquidation or dissolution of such specified Person or one or more of its Subsidiaries), in a
single transaction or in a related series of transactions, of all or substantially all of the
assets of such specified Person and its Subsidiaries, taken as a whole, to any other Person (or
Group) which is not, immediately after giving effect thereto, a Subsidiary of such specified
Person; (ii) any Person or Group becomes, in a single transaction or in a related series of
transactions, whether by way of purchase, acquisition, tender, exchange or other similar offer or
recapitalization, reclassification, consolidation, merger, share exchange, scheme of arrangement or
other business combination transaction, the Beneficial Owner of more than fifty percent (50%) of
the combined voting power of the outstanding voting capital stock entitled to vote generally in the
election of directors (or Persons performing a similar function) of such specified Person; or (iii)
the consummation of any recapitalization, reclassification, consolidation, merger, share exchange,
scheme of arrangement or other business combination transaction immediately following which the
Beneficial Owners of the voting capital stock of such specified Person immediately prior to the
consummation of such transaction do not Beneficially Own more than fifty percent (50%) of the
combined voting power of the outstanding voting capital stock entitled to vote generally in the
election of directors (or Persons performing a similar function) of the entity resulting from such
transaction (including an entity that, as a result of such transaction, owns such specified Person
or all of substantially all of the assets of such specified Person and its Subsidiaries, taken as a
whole, either directly or indirectly through one or more Subsidiaries of such entity) in
substantially the same proportion as their Beneficial Ownership of the voting capital stock of such
specified Person immediately prior to such transaction.
“Change of Control Purchase Price” shall have the meaning set forth in Section 5.3(b).
“Claim Notice” shall have the meaning set forth in Section 6.7(a).
“Claims” shall have the meaning set forth in Section 6.6(a).
“Closing” shall mean the consummation of the Merger.
“Closing Date” shall mean the date on and as of which the Merger and this Agreement
shall be effective.
“Companies Acts” shall mean the Irish Companies Acts 1963 to 2009.
“Company” shall have the meaning set forth in the Preamble.
“Control” (including, with correlative meanings, “Controlled by” and “under
Common Control with”) shall mean the possession, direct or indirect, of the power to direct
or cause the direction of management or policies of a Person, whether through ownership of
securities, by contract or otherwise.
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“Demand Registration” shall have the meaning set forth in Section 6.1(a).
“Demand Registration Statement” shall have the meaning set forth in Section 6.1(a).
“Demand Request” shall have the meaning set forth in Section 6.1(a).
“Directed Offering” shall mean any so-called “registered direct” sale, block trade or
other similar offering or Transfer made pursuant to an effective registration statement filed under
the Securities Act, but in which the Shareholder Shares Transferred are not widely distributed.
“Director” shall mean any member of the Board.
“Election Notice” shall have the meaning set forth in Section 5.3(a).
“Encumbrance” shall mean any lien, pledge, charge, claim, encumbrance, security
interest, option, hypothecation, mortgage, easement, encroachment or other restriction or
third-party right of any kind, including any right of first refusal or restriction on voting, in
each case other than pursuant to this Agreement.
“Exchange Act” shall mean the United States Securities Exchange Act of 1934.
“FINRA” shall mean the Financial Industry Regulatory Authority.
“Free Writing Prospectus” shall have the meaning set forth in Section 6.4(a).
“Group” shall mean two or more Persons acting together, pursuant to any agreement,
arrangement or understanding, for the purpose of acquiring, holding, voting or disposing of
securities or as otherwise contemplated by Rule 13d-5(b) of the Exchange Act.
“Holdback Period” means (i) with respect to any registered offering covered by this
Agreement, 90 days (or such shorter period as the managing underwriter(s) permit) after and 10 days
before, the effective date of the related Registration Statement; or (ii) in the case of a takedown
from a Shelf Registration Statement, 90 days (or such shorter period as the managing underwriter(s)
permit) after the date of the Prospectus supplement filed with the SEC in connection with such
takedown and during such prior period (not to exceed 10 days) as the Company has given reasonable
written notice to the Shareholder.
“Ireland” shall mean the island of Ireland, excluding the counties of Antrim, Armagh,
Derry, Down, Fermanagh and Xxxxxx.
“Market Value” shall mean, with respect to any Voting Securities as at any date of
determination, the volume weighted average of the daily market prices of such Voting Securities
over the twenty (20) consecutive trading days immediately preceding, but not including, such date
of determination. For purposes of this definition, the “daily market price” for any trading day
shall be (i) the volume weighted average sale price of all sales of such Voting Securities during
the principal trading session on such trading day, on NASDAQ (or if no sale was made on NASDAQ on
such trading day, the national stock exchange that experienced the highest volume of trades in such
Voting Securities on such trading day); (ii) if such Voting Securities are not
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then admitted for trading on NASDAQ or listed on a national stock exchange, the average of the
last reported closing bid and ask prices of such Voting Securities on such trading day in the
over-the-counter market, as furnished by the National Quotation Bureau, Incorporated (or similar
organization or agency succeeding to its function of reporting security prices); or (iii) if there
is no such organization or agency, the average of the last reported closing bid and ask prices of
such Voting Securities on such trading day as furnished by any member of the National Association
of Securities Dealers, Inc. mutually selected by the Company and the Shareholder or, if they cannot
agree on such selection, as selected by two such members of the National Association of Securities
Dealers, Inc., one of which shall be selected by the Company and one of which shall be selected by
the Shareholder.
“Merger” shall have the meaning set forth in the Recitals.
“Merger Agreement” shall have the meaning set forth in the Recitals.
“Merger Sub” shall have the meaning set forth in the Recitals.
“Nominating Committee” shall have the meaning set forth in Section 3.1(b).
“NASDAQ” shall mean The NASDAQ Stock Market LLC.
“Ordinary Shares” shall mean ordinary shares, par value $0.01 per share, of the
Company.
“Organizational Documents” shall mean, with respect to any Person, such Person’s
memorandum and articles of association, articles or certificate of incorporation, formation or
organization, by-laws, limited liability company agreement, partnership agreement or other
constituent document or documents, each in its currently effective form as amended from time to
time.
“Other Shares” shall mean shares of any class of capital stock of the Company (other
than Ordinary Shares) that are entitled to vote generally in the election of Directors.
“Ownership Threshold” shall mean, at any time of determination, the Beneficial
Ownership of ten percent (10%) of the Voting Securities outstanding at such time.
“Parent Public Filings” shall have the meaning set forth in Section 7.14.
“Permitted Transferee” shall mean the Shareholder Parent and any direct or indirect
wholly-owned Subsidiary of the Shareholder Parent.
“Person” shall mean any individual, private or public company, corporation (including
not-for-profit), general or limited partnership, limited liability company, joint venture, estate,
trust, association, organization, governmental entity or other entity of any kind or nature.
“Piggy-Back Registration” shall have the meaning set forth in Section 6.2(a).
“Proceedings” shall have the meaning set forth in Section 7.6.
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“Prospectus” shall mean the prospectus or prospectuses (whether preliminary or final)
included in any Registration Statement and relating to Registrable Shares, as amended or
supplemented and including all material, if any, incorporated by reference in such prospectus or
prospectuses.
“Registrable Shares” shall mean, at any time of determination, the Shareholder Shares
that are Beneficially Owned by the Shareholder at such time.
“Registration Expenses” shall have the meaning set forth in Section 6.5(a).
“Registration Rights Termination Date” shall have the meaning set forth in Section
6.3.
“Registration Statement” shall mean any registration statement of the Company which
covers any of the Registrable Shares pursuant to the provisions of this Agreement, including any
Prospectus, amendments and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all documents, if any, incorporated by reference in such Registration
Statement.
“Representatives” shall, with respect to any designated Person, mean such designated
Person’s Affiliates and the respective directors, officers, employees, accountants, counsel,
consultants and other agents and advisors of such designated Person and its Affiliates;
provided, however, that, with respect to the Shareholder, no underwriter,
broker-dealer or placement agent shall be deemed to be a Representative of the Shareholder solely
as a result of such underwriter, broker-dealer or placement agent participating in the distribution
of any Registrable Shares, unless such underwriter, broker-dealer or placement agent is otherwise
an Affiliate of the Shareholder.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities Act” shall mean the United States Securities Act of 1933.
“Selling Expenses” shall have the meaning set forth in Section 6.5(a).
“Shareholder” shall have the meaning set forth in the Preamble or, in the event that
the Shareholder Shares are Transferred to any Permitted Transferee in accordance with Section
5.1(f)(i), shall mean such Permitted Transferee.
“Shareholder Designee” shall have the meaning set forth in Section 3.1(a).
“Shareholder Parent” shall have the meaning set forth in the Preamble.
“Shareholder Parent Change of Control Event” shall mean with respect to the
Shareholder Parent, any of the following: (i) the Shareholder Parent enters into definitive
documentation providing for or contemplating any transaction or series of related transactions that
would, if consummated, constitute a Change of Control with respect to the Shareholder Parent; (ii)
the board of directors of the Shareholder Parent approves, accepts or recommends to the
shareholders of the Shareholder Parent, or the shareholders of the Shareholder Parent approve, (A)
any recapitalization, reclassification, consolidation, merger, share exchange,
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scheme of arrangement or other business combination transaction, (B) any sale, lease,
transfer, conveyance or other disposition (including by way of liquidation or dissolution of the
Shareholder Parent or one or more of its Subsidiaries) of all or substantially all of the assets of
the Shareholder Parent and its Subsidiaries (taken as a whole) or (C) any other similar
transaction, in any case that would, if consummated, constitute a Change of Control with respect to
the Shareholder Parent; or (iii) a tender, takeover, exchange or other similar offer that would, if
consummated, constitute a Change of Control with respect to the Shareholder Parent is commenced or
the subject of an announcement of a firm intention to be made or commenced by any Person or Group
and the board of directors of the Shareholder Parent either (A) publicly recommends that
shareholders of the Shareholder Parent tender their shares to the Person or Group making such offer
or (B) fails to recommend that the shareholders of the Shareholder Parent reject such offer, in
either case within ten (10) Business Days after the date of commencement or posting of the offer
document in respect of such offer.
“Shareholder Shares” shall mean (i) all Ordinary Shares Beneficially Owned by the
Shareholder Parent on the Closing Date, immediately after giving effect to the Closing; and (ii)
all Ordinary Shares or Other Shares issued to the Shareholder in respect of any such Securities or
into which any such Securities shall be converted or exchanged in connection with stock splits,
reverse stock splits, stock dividends or distributions, combinations or any similar
recapitalizations, reclassifications or capital reorganizations occurring after the Closing.
“Shelf Registration Statement” shall have the meaning set forth in Section 6.1(c).
“Shelf Underwritten Offering” shall have the meaning set forth in Section 6.8(a).
“Short-Form Registration” shall have the meaning set forth in Section 6.1(c).
“Similar Securities” shall have the meaning set forth in Section 6.2(a).
“Special Registration” shall mean the registration of (i) equity securities and/or
options or other rights in respect thereof solely registered on Form X-0, Xxxx X-0 or any successor
forms thereto; or (ii) shares of equity securities and/or options or other rights in respect
thereof to be offered solely in connection with an employee benefit or dividend reinvestment plan.
“Standstill Period” shall have the meaning set forth in Section 4.1(a).
“Subsidiary” shall mean, with respect to any Person, any other entity (i) whose
securities or other ownership interests, having by their terms the power to elect a majority of the
board of directors or other Persons performing similar functions, are Beneficially Owned or
Controlled, directly or indirectly, by such Person, (ii) whose business and policies such Person
has the power, directly or indirectly, to direct, or (iii) of which 50% or more of the securities,
partnership or other ownership interests are owned, directly or indirectly, by such Person.
“Take-Down Notice” shall have the meaning set forth in Section 6.8(a).
“Transfer” shall mean any direct or indirect sale, transfer, assignment, pledge,
hypothecation, mortgage, license, gift, creation of a security interest in or lien on, placement in
trust (voting or otherwise), encumbrance or other disposition of any kind to any Person,
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including those by way of hedging or derivative transactions; provided,
however, that, any Change of Control described in clauses (ii) or (iii) of the definition
thereof with respect to the Shareholder Parent shall not constitute a Transfer of any Shareholder
Shares Beneficially Owned by the Shareholder. The term “Transferred” shall have a
correlative meaning.
“Transfer Limitation Period” shall mean the period from and after the Closing until
the date that is ninety (90) calendar days after, and conditioned upon, the completion of the
Transfer contemplated by and in accordance with Section 5.1(b)(ii) (and irrespective of the number
of Shareholder Shares theretofore actually Transferred by the Shareholder under Section 5.1(b)(i)
and Section 5.1(b)(ii)).
“U.S. GAAP” shall have the meaning set forth in Section 7.14.
“Voting Securities” shall mean the Ordinary Shares together with any Other Shares.
“WKSI” shall have the meaning set forth in Section 6.1(e).
Section 1.2 Other Definitional Provisions. Except as expressly set forth in this Agreement or unless the express context otherwise
requires:
(a) the words “hereof”, “herein”, and “hereunder” and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement;
(b) the terms defined in the singular have a comparable meaning when used in the
plural, and vice versa;
(c) any references herein to a specific Section shall refer, respectively, to Sections
of this Agreement;
(d) any reference herein to “USD” and “$” are to United States Dollars;
(e) wherever the word “include”, “includes” or “including” is used in this Agreement,
it shall be deemed to be followed by the words “without limitation”;
(f) references herein to any gender includes the other gender;
(g) a reference to a Person (including a party to this Agreement) includes a reference
to that Person’s legal personal representatives and permitted successors and assigns;
(h) a reference to a document is a reference to that document as may be supplemented,
amended or modified from time to time;
(i) any reference in this Agreement to any statute or statutory provision shall be
deemed to include any statute or statutory provision that amends, extends, consolidates,
re-enacts or replaces same, or which has been amended, extended, consolidated, re-enacted or
replaced (whether before or after the date of this Agreement)
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by same and shall include any orders, regulations, instruments or other subordinate
legislation made under the relevant statute;
(j) words and phrases the definitions of which are contained or referred to in the
Companies Acts shall be construed as having the meanings thereby attributed to them; and
(k) any reference to an Irish legal term for any action, remedy, method of judicial
proceeding, legal document, legal status, court, official or any legal concept or thing
shall, in respect of any jurisdiction other than Ireland, be deemed to include a reference
to what most nearly approximates in that jurisdiction to the Irish legal term.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Company. The Company represents and warrants to the Shareholder and the Shareholder Parent as of the
date hereof that:
(a) The Company is a public limited company duly incorporated and validly existing
under the laws of Ireland.
(b) The Company has all requisite power and authority and has taken all action
necessary in order to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery by the Company of this Agreement and the performance
of its obligations hereunder have been duly authorized by all necessary action of the
Company, including the approval of the Board. This Agreement has been duly executed and
delivered by the Company and, assuming the due authorization, execution and delivery of this
Agreement by the Shareholder and the Shareholder Parent, constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance with its
terms, except as limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights
generally and, as to enforceability, by general equitable principles.
(c) The execution and delivery of this Agreement by the Company and the performance of
its obligations hereunder will not constitute or result in (i) a breach or violation of, or
a default under, the Organizational Documents of the Company; (ii) a breach or violation of,
a termination (or right of termination) or default under, the creation or acceleration of
any obligations under, or the creation of an Encumbrance on any of the assets of the Company
(with or without notice, lapse of time or both) pursuant to, any agreement, lease, license,
contract, note, mortgage, indenture, arrangement or other obligation binding upon the
Company; or (iii) conflict with, breach or violate any law applicable to the Company or by
which its properties are bound or affected, except, in the case of clauses (ii) and (iii)
above, for any breach, violation, termination, default, creation, acceleration or conflict
that would not, individually or in the aggregate,
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reasonably be expected to impair the ability of the Company to perform its obligations
under this Agreement.
Section 2.2 Representations and Warranties of the Shareholder and the Shareholder
Parent. The Shareholder and the Shareholder Parent jointly and severally represent and warrant to
the Company as of the date hereof that:
(a) The Shareholder is (i) a private limited company incorporated and validly existing
under the laws of Ireland and (ii) an indirect wholly-owned Subsidiary of the Shareholder
Parent.
(b) The Shareholder Parent is a public limited company incorporated and validly
existing under the laws of Ireland.
(c) Each of the Shareholder and the Shareholder Parent has all requisite power and
authority and has taken all action necessary in order to execute and deliver this Agreement
and to perform their respective obligations hereunder. The execution and delivery by the
Shareholder and the Shareholder Parent of this Agreement and the performance of their
respective obligations hereunder have been duly authorized by all necessary action of the
Shareholder and the Shareholder Parent, including the approval of their respective boards of
directors. This Agreement has been duly executed and delivered by the Shareholder and the
Shareholder Parent and, assuming the due authorization, execution and delivery of this
Agreement by the Company, constitutes the legal, valid and binding obligation of the
Shareholder and the Shareholder Parent, enforceable against the Shareholder and the
Shareholder Parent in accordance with its terms, except as limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws affecting the
enforcement of creditors’ rights generally and, as to enforceability, by general equitable
principles.
(d) The execution and delivery of this Agreement by the Shareholder and the Shareholder
Parent and the performance of their respective obligations hereunder will not constitute or
result in (i) a breach or violation of, or a default under, the Organizational Documents of
the Shareholder or the Shareholder Parent; (ii) a breach or violation of, a termination (or
right of termination) or default under, the creation or acceleration of any obligations
under, or the creation of an Encumbrance on any of the assets of the Shareholder or the
Shareholder Parent (with or without notice, lapse of time or both) pursuant to, any
agreement, lease, license, contract, note, mortgage, indenture, arrangement or other
obligation binding upon the Shareholder or the Shareholder Parent; or (iii) conflict with,
breach or violate any law applicable to the Shareholder or the Shareholder Parent or by
which their respective properties are bound or affected, except, in the case of clauses (ii)
and (iii) above, for any breach, violation, termination, default, creation, acceleration or
conflict that would not, individually or in the aggregate, reasonably be expected to impair
the ability of the Shareholder or the Shareholder Parent to perform its obligations under
this Agreement.
(e) Immediately prior to the execution hereof, none of the Shareholder Parent or any of
its Affiliates Beneficially Own any shares of common stock of Alkermes.
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ARTICLE III
CORPORATE GOVERNANCE
Section 3.1 Board Representation.
(a) From and after the Closing Date until a Board Right Termination Event occurs (the
“Board Right Period”), the Shareholder shall have the right (but not the obligation), upon
written notice to the Company, to designate one individual to serve on the Board (the
“Shareholder Designee”); provided, however, that such Shareholder Designee
shall satisfy the applicable requirements set forth in Section 3.1(b); provided,
further, that if a Board Right Termination Event occurs, the Shareholder shall promptly
cause the Shareholder Designee, if any, then serving on the Board to resign, effective immediately,
from the Board and from any committees or subcommittees thereof to which the Shareholder Designee
is then appointed or on which he or she is then serving, and the right of the Shareholder to
designate a Shareholder Designee shall terminate.
(b) Notwithstanding anything to the contrary set forth in this Agreement, any Shareholder
Designee designated by the Shareholder pursuant to Section 3.1(a) (i) shall be resident in Ireland
for so long as such Shareholder Designee serves as a Director; (ii) shall qualify as an
“independent director” under applicable provisions of the Exchange Act and under applicable NASDAQ
rules and regulations, or the applicable rules and regulations of the principal securities exchange
on which the Ordinary Shares are then listed; (iii) would not, at the time of such designation, be
required to disclose any information pursuant to Item 2(d) or (e) of Schedule 13D (as in effect on
the date of this Agreement) if such Shareholder Designee were the “person filing” such Schedule
13D; (iv) shall not, at the time of such designation, be prohibited or disqualified from serving as
a director of a public company pursuant to any applicable rule or regulation of the SEC or NASDAQ
or pursuant to applicable law, including the Companies Acts; and (v) shall, in the good faith
judgment of the Nominating and Corporate Governance Committee of the Board (the “Nominating
Committee”), satisfy the requirements set forth in the Company’s Organizational Documents and
Corporate Governance Guidelines (as in effect from time to time), in each case as are applicable to
all non-employee Directors generally. The Shareholder Designee shall, upon appointment or
election, as the case may be, to the Board, execute such agreements as are required to be executed
by all non-employee Directors generally and shall otherwise abide by the provisions of all codes
and policies of the Company that are applicable to all non-employee Directors generally, including,
as applicable, the Company’s Xxxxxxx Xxxxxxx Policy, policies requiring the pre-clearance of all
securities trading activity, the Company’s Code of Conduct and the Company’s stock ownership
policy.
(c) During the Board Right Period, the Company shall use reasonable endeavors to procure, (i)
at the next scheduled meeting of the Board, which shall be validly noticed, the appointment of the
Shareholder Designee to the Board; and (ii) thereafter, at each annual general meeting of
shareholders of the Company occurring during the Board Right Period at which the term of the
Shareholder Designee will expire in accordance with the Company’s Organizational Documents (whether
by rotation or otherwise), the election or re-election, as the case may be, of the applicable
Shareholder Designee to the Board, including by (A) nominating such Shareholder Designee for
election to serve as a Director as provided in this Agreement, (B) subject to
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compliance by the Shareholder with Section 3.1(f), including such nomination and other
required information regarding such Shareholder Designee in the Company’s proxy materials for such
meeting of shareholders and (C) soliciting or causing the solicitation of proxies in favor of the
election of such Shareholder Designee as a Director, in the case of each of clauses (i) and (ii),
for a term expiring at the next annual general meeting of shareholders at which members of the
class of Directors to which the Shareholder Designee belongs are to be elected or re-elected, as
the case may be, or until such Shareholder Designee’s successor shall have been elected and
qualified, or at such earlier time, if any, as such Shareholder Designee may resign, retire, die or
be removed (for any reason) as a Director.
(d) Notwithstanding the foregoing, the Company shall not be obligated to procure the
appointment of any individual to the Board pursuant to Section 3.1(c)(i) or to procure the election
or re-election of any individual pursuant to Section 3.1(c)(ii) if such individual shall have
previously been designated by the Shareholder pursuant to Section 3.1(a) and nominated by the
Company for election or re-election, as the case may be, as a Director as provided in Section
3.1(c)(ii) (and provided that the Company shall have complied with its obligations set forth in
Section 3.1(c)(ii) in respect thereof), and, following the vote of shareholders at the annual
general meeting of shareholders, shall have failed to be elected or re-elected, as the case may be,
as a Director by the requisite vote of the Company’s shareholders.
(e) In furtherance of, and not in limitation to, the Shareholder’s rights in this Section 3.1,
during the Board Right Period, (i) the Shareholder shall have the right (but not the obligation),
upon written notice to the Company as provided in Section 3.1(a), to designate a Shareholder
Designee to replace any Shareholder Designee who shall have resigned, retired, died or been removed
from office (for any reason) or who, following the voting of shareholders at a meeting of
shareholders of the Company shall have failed to be elected or re-elected, as the case may be, by
the requisite vote of the Company’s shareholders; and (ii) the provisions of Sections 3.1(c) and
3.1(d) shall apply to, and the Company shall comply with its obligations contained therein in
respect of, any such replacement Shareholder Designee.
(f) Not less than one hundred twenty (120) days prior to the anniversary of the prior year’s
annual general meeting of shareholders of the Company occurring during the Board Right Period at
which members of the class of Directors to which the Shareholder Designee belongs are to be
elected, the Shareholder shall (i) notify the Company in writing of the name of the Shareholder
Designee to be nominated for election at such meeting and (ii) provide, or cause such Shareholder
Designee to provide, to the Company, all information concerning such Shareholder Designee and his
or her nomination to be elected as a Director at such meeting as shall reasonably be required to
(A) comply with applicable securities laws, the rules of NASDAQ or any other stock exchange on
which securities of the Company are then quoted or listed for trading and the Companies Acts and
(B) enable the Nominating Committee to make determinations with respect to such Shareholder
Designee’s satisfaction of the requirements set forth in Section 3.1(b)(v); provided that
the Nominating Committee shall make such determinations as promptly as practicable following
receipt by the Company of the notification and information contemplated in clauses (i) and (ii) of
this Section 3.1(f) and shall promptly provide the Shareholder with written notice if the
Nominating Committee determines that such Shareholder Designee does not satisfy such requirements
(together with a reasonably detailed
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description of the basis on which the Nominating Committee shall have made such
determination).
(g) During the Board Right Period, the Company agrees that any Shareholder Designee serving as
a Director shall be entitled to the same rights, privileges and compensation applicable to all
other non-employee Directors generally or to which all such non-employee Directors are entitled,
including any rights with respect to such Shareholder Designee’s term of office, and with respect
to indemnification arrangements, directors and officers insurance coverage and other similar
protections and expense reimbursement.
(h) Notwithstanding anything in this Section 3.1 to the contrary, (i) the Company will not be
obligated to take any action in respect of any Shareholder Designee pursuant to Sections 3.1(c)(ii)
if the Shareholder shall have failed, in any material respect, to provide, or cause to be provided,
the notice and information required by clauses (i) and (ii) of Section 3.1(f); and (ii) in the
event that a breach of Article IV or Article V by the Shareholder Parent or the
Shareholder shall have occurred and be continuing, in addition to any other remedies that the
Company may have, the Shareholder’s right to designate a Shareholder Designee shall be suspended;
provided, however, that such right shall be reinstated and become effective from
and after the date on which any such default shall have been cured or remedied until a Board Right
Termination Event occurs.
(i) During the Board Right Period and except as required by applicable law, the Company shall
not take any action to cause the removal (without cause) of a Shareholder Designee serving as a
Director. The Shareholder shall cause the Shareholder Designee to resign or, if reasonably
sufficient, recuse himself or herself any time the presence of such individual as a Shareholder
Designee on the Board shall, in the reasonable judgment of the Board, reasonably be likely to
violate applicable law or otherwise compromise the Board’s exercise of its fiduciary duties.
Section 3.2 Use of Information.
(a) Notwithstanding anything in this Agreement to the contrary, the Shareholder Designee shall
not communicate or convey to the Shareholder or the Shareholder Parent (or to any Affiliate of
either of them), directly or indirectly, any non-public information received or obtained in his or
her capacity as a Director of the Company, including materials distributed to Directors and any
information regarding the process or substance of any Board deliberations.
(b) The Shareholder Parent shall, and shall cause its Representatives and Affiliates to, use
non-public information obtained under, in connection with or in performance of this Agreement
(including, for the avoidance of doubt, any information obtained pursuant to Section 4.1(e)) only
in connection with the Shareholder’s investment in the Company and in compliance with this
Agreement and the Merger Agreement, and not for any other purpose; provided,
however, that nothing in this Section 3.2(b) shall, in any way, prevent, restrict, encumber
or limit the Shareholder Parent or any of its Affiliates from exercising its rights or performing
its obligations, or asserting or defending any claim by or against the Company or any of its
Affiliates, in any such case under this Agreement, the Merger Agreement or any other agreement
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contemplated by the Merger Agreement. Notwithstanding the foregoing, the Shareholder Parent
shall not, and shall cause its Representatives and Affiliates not to, use any such information in a
manner prohibited by applicable law, including trading any securities of the Company while in
possession of such non-public information to the extent such trading would violate applicable law,
or expressly prohibited by this Agreement or the Merger Agreement.
ARTICLE IV
STANDSTILL; VOTING
Section 4.1 Standstill Restrictions.
(a) From and after the Closing Date until the later of (x) the ten (10) year anniversary of
the Closing Date and (y) the three (3) year anniversary of the date on which the Shareholder shall
cease to Beneficially Own Voting Securities representing at least the Ownership Threshold (the
“Standstill Period”), without the prior written consent of the Company, the Shareholder
Parent shall not, and shall cause each of its Affiliates not to, directly or indirectly, alone or
in concert with any other Person, except as otherwise expressly set forth in this Section 4.1:
(i) offer to acquire or agree to acquire Beneficial Ownership of any Voting Securities
in addition to the Shareholder Shares, except (A) pursuant to stock splits, reverse stock
splits, stock dividends or distributions, combinations, reclassifications or any similar
recapitalizations or (B) acquisitions or purchases of Voting Securities pursuant to and in
accordance with Section 4.4;
(ii) acquire, offer to acquire or agree to acquire any assets of the Company or any of
its Subsidiaries that are material to the operations, financial condition or prospects of
the Company and its Subsidiaries, taken as a whole;
(iii) induce or attempt to induce any third party to propose or offer to acquire
Beneficial Ownership of Voting Securities (other than the Shareholder Shares as and to the
extent permitted in accordance with Article V);
(iv) initiate or make a proposal for any scheme of arrangement, merger, tender,
takeover or exchange offer, business combination, reorganization, restructuring,
recapitalization or other extraordinary transaction that would, if consummated, result in a
Change of Control with respect to the Company;
(v) seek the election, appointment or removal of any Directors (other than any
Shareholder Designee) or seek a change in the composition or size of the Board;
(vi) except as otherwise required by applicable law, rule or regulation as set forth in
an opinion of reputable U.S. counsel, make or cause to be made any press release or similar
public announcement or public communication relating to the way it intends to, or does, vote
its Shareholder Shares at any meeting of the shareholders of the Company or in connection
with any action by written consent at or in which Voting Securities are entitled to vote;
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(vii) deposit any Shareholder Shares into a voting trust or subject any Shareholder
Shares to any proxy, arrangement or agreement with respect to the voting of such any
Shareholder Shares or other agreement having a similar effect (other than as recommended by
the Board);
(viii) initiate, propose or otherwise solicit shareholders for the approval of any
shareholder proposal or solicit proxies or consents, or in any way participate in, directly
or indirectly, any “solicitation” of “proxies” to vote, or seek to influence any Person with
respect to the voting of, any Voting Securities, or become a “participant” in a
“solicitation” (as such terms are defined in Regulation 14A under the Exchange Act, as in
effect on the date of this Agreement, whether or not such Regulation is applicable to the
Company) with respect to any Voting Securities;
(ix) publicly call or requisition a call for any general, special or extraordinary
meeting of the Company’s shareholders;
(x) form, join or in any way participate in a Group with respect to any Voting
Securities;
(xi) make any public statement or disclosure inconsistent with the foregoing;
(xii) assist, advise, induce or attempt to induce (or provide any confidential
information of the Company or any of its Subsidiaries for the purpose of assisting,
advising, inducing or attempting to induce) any third party with respect to, or take any
affirmative action to do, any of the foregoing; or
(xiii) propose or seek an amendment or waiver of any of the provisions of this Section 4.1.
(b) This Section 4.1 shall not, in any way, prevent, restrict, encumber or limit (i) the
Shareholder Parent and its Affiliates (including the Shareholder) from exercising their respective
rights, performing their respective obligations or otherwise consummating the transactions
contemplated by this Agreement, the Merger Agreement and any other contract or agreement
contemplated by the Merger Agreement, in each case in accordance with the terms hereof or thereof,
including exercising the Shareholder’s rights pursuant to Article III, Section 4.3, Section
4.4, Article V (including Section 5.1(d)(i)(B)) and Article VI or (ii) any
Shareholder Designee then serving as a Director from exercising and performing his or her duties
(fiduciary and otherwise) as a Director in accordance with the Company’s Organizational Documents,
all codes and policies of the Company and all laws, rules, regulations and codes of practice, in
each case as may be applicable and in effect from time to time.
(c) If, at any time during the Standstill Period, (i) the Company enters into definitive
documentation providing for a transaction that, if consummated, would constitute a Change of
Control with respect to the Company; (ii) the Board publicly announces its determination that (A)
it will sell or dispose of, or has commenced a process by which it proposes to sell or dispose of,
the Company or all or substantially all of the assets of the Company and its Subsidiaries, taken as
a whole, (B) will consider offers or proposals for a transaction that, if consummated, would result
in a Change of Control with respect to the Company, or (C) the Company or all or
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substantially all of the assets of the Company and its Subsidiaries, taken as a whole, is for
sale; or (iii) a tender, takeover, exchange or similar offer that, if consummated, would constitute
a Change of Control with respect to the Company is commenced or the subject of an announcement of a
firm intention to be made or commenced by any Person or Group and either (A) the Shareholder Parent
Beneficially Owns Voting Securities representing less than fifteen percent (15%) of the then
outstanding Voting Securities or (B) the Board either (x) publicly recommends that shareholders of
the Company tender their Voting Securities to the Person or Group making such offer or (y) fails to
recommend that the shareholders of the Company reject such offer, in each case within ten (10)
Business Days after the date of commencement or posting of such offer, then, in any such case the
provisions of Section 4.1(a) shall terminate immediately and all other provisions of this Agreement
shall remain in full force and effect; provided, however, that if, (x) with respect
to clause (i) of this sentence, such transaction is terminated without being consummated, (y) with
respect to clause (ii) of this sentence, the Board has publicly announced that it has rescinded
such determination or (z) with respect to clause (iii) of this sentence, such offer or similar
transaction is withdrawn, terminated or expires without being consummated or, if the Shareholder
Parent Beneficially Owns Voting Securities representing at least fifteen percent (15%) of the then
outstanding Voting Securities and the Board publicly recommends that the shareholders of the
Company reject such offer, then, in any such case all provisions of Section 4.1(a) previously
terminated shall be reinstated and shall be in full force and effect in accordance with their terms
from and after the date of such termination, public announcement, withdrawal or expiration, as the
case may be; provided, further, that such reinstatement shall not prevent the
Shareholder Parent or any of its Affiliates from continuing to pursue any activities described in
this Section 4.1(c) that were definitively commenced after the date of such termination, but at or
prior to the date of such reinstatement.
(d) Notwithstanding anything to the contrary in this Section 4.1, nothing herein shall
prohibit or prevent the Shareholder Parent or any of its Affiliates from acquiring securities of,
or from entering into any merger or other business combination with, another Person that
Beneficially Owns any Voting Securities or the securities of any successor to, or Person in control
of, the Company; provided, however, that (i) such Person shall have acquired such
Voting Securities or other securities other than in contemplation of the Shareholder Parent or any
of its Affiliates acquiring the securities of, or entering into any such merger or other business
combination with, such Person; (ii) the Beneficial Ownership of such Voting Securities or other
securities by such Person shall not be a primary reason for the Shareholder Parent or any of its
Affiliates acquiring the securities of, or entering into any such merger or other business
combination with, such Person; and (iii) the Beneficial Ownership by the Shareholder or the
Shareholder Parent or such Person of the Voting Securities held by such Person following the
acquisition, merger or other business combination would not, when combined with the Beneficial
Ownership by the Shareholder or the Shareholder Parent or such Person of Voting Securities held by
the Shareholder Parent or one of its Affiliates, result in the Shareholder Parent or any of its
Affiliates or such Person being required, pursuant to the Companies Acts, to commence an offer to
acquire additional Voting Securities.
(e) Notwithstanding anything to the contrary in this Section 4.1, nothing herein shall prevent
the Chairman and/or the Chief Executive Officer of the Shareholder Parent from communicating with
the Chairman and/or the Chief Executive Officer of the Company (including for purposes of
requesting permission to make any proposal or to take any action
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prohibited by this Section 4.1); provided that (i) such communication is made
confidentially, does not reasonably require public disclosure by the Company, the Shareholder
Parent or any of their respective Affiliates and does not reasonably require the issuance of a
public response by the Company or any of its Affiliates; and (ii) neither the fact that such
communication or request has been made or any of the terms thereof or facts with respect thereto
are publicly disclosed, directly or indirectly, by the Shareholder Parent or any of its Affiliates.
Section 4.2 Attendance at Meetings. For so long as the Shareholder Parent Beneficially Owns Voting Securities representing at
least the Ownership Threshold, the Shareholder Parent shall cause the Shareholder to, and the
Shareholder shall, cause all Shareholder Shares then owned by the Shareholder to be present, in
person or by proxy, at any meeting of the shareholders of the Company occurring at which an
election of Directors is to be held, so that all such Shareholder Shares shall be counted for the
purpose of determining the presence of a quorum at such meeting.
Section 4.3 Voting.
(a) At each meeting of shareholders of the Company occurring during the period from the
Closing Date until the one (1) year anniversary of the Closing Date, the Shareholder Parent shall
cause the Shareholder to, and the Shareholder shall, vote all Shareholders Shares then owned by it
(to the extent entitled to vote thereon) in accordance with the recommendation of the Board with
respect to any business or proposal on which the shareholders of the Company are entitled to vote.
(b) Following the one (1) year anniversary of the Closing Date, the Shareholder Parent shall
cause the Shareholder to, and the Shareholder shall, continue to vote as described in paragraph (a)
immediately above, except that, if, at any date following the one (1) year anniversary of the
Closing Date, either (i) the Shareholder Parent Beneficially Owns Voting Securities representing
fifteen percent (15%) or less of the then outstanding Voting Securities of the Company or (ii) the
volume weighted average of the daily market prices (determined in accordance with the definition of
Market Value) of the Ordinary Shares over the thirty (30) consecutive trading days immediately
preceding, but not including, such date is not at least equal to $[insert dollar amount that equals
fifty percent (50%) of the closing price of Alkermes’ common stock on the date of announcement of
the Merger Agreement], as appropriately adjusted for any stock split or other similar
recapitalization or reclassification of the Ordinary Shares after the Closing Date, the Shareholder
shall thereafter be free to vote or abstain from voting any or all Shareholder Shares then owned by
it in any manner it shall determine, in its absolute and sole discretion, in respect of, any
business or proposal (whether initiated by any shareholder or otherwise) coming before any meeting
of shareholders of the Company.
Section 4.4 Preemption Rights. Except as expressly set forth in this Section 4.4, each of the Shareholder and the
Shareholder Parent hereby irrevocably waives, and the Shareholder Parent shall cause any subsequent
Permitted Transferee to which any Shareholder Shares are Transferred after the Closing Date to
waive, at all times during the Board Right Period (but not at any time thereafter), any preemption
rights to which it would otherwise be entitled as a result of its ownership or holding of
Shareholder Shares under the Companies Acts or the Organizational Documents of the Company in
respect of any issuance or offering of equity securities by the
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Company; provided, however, that, none of the Shareholder, the Shareholder
Parent or any subsequent Permitted Transferee of any Shareholder Shares hereby waives, by virtue of
this Section 4.4 or any other provision of this Agreement, and nothing in this Section 4.4 or any
other provision of this Agreement shall constitute a waiver of, or otherwise operate to waive, any
preemption right if and solely to the extent that (i) other shareholders of the Company have any
preemption rights in respect of such issuance or offering; and (ii) such issuance or offering is
made or completed for consideration per security that is, at such time, less than the Market Value
thereof or, if there is no Market Value, the fair market value thereof.
ARTICLE V
TRANSFER RESTRICTIONS
Section 5.1 Transfer Restrictions.
(a) The right of the Shareholder to Transfer any Shareholder Shares is subject to the
restrictions set forth in this Article V. No Transfer of Shareholder Shares by the
Shareholder may be effected except in compliance with the restrictions set forth in this
Article V and with the requirements of the Securities Act and any other applicable
securities laws. Any attempted Transfer in violation of this Agreement shall be of no effect and
null and void, regardless of whether the purported transferee has any actual or constructive
knowledge of the Transfer restrictions set forth in this Agreement, and shall not be recorded on
the stock transfer books of the Company.
(b) During the Transfer Limitation Period, the Shareholder shall not, and the Shareholder
Parent shall cause the Shareholder not to, Transfer any Shareholder Shares without the prior
written consent of the Company, except:
(i) following the six (6) month anniversary of the Closing Date, the Shareholder may
Transfer up to but no more than forty and three-quarters percent (40.75%) of the Shareholder
Shares in a marketed underwritten registered offering pursuant to Article VI;
(ii) from and after the date that is ninety (90) calendar days after, and conditioned
upon, the completion of its Transfer under clause (i) of this Section 5.1(b) (and
irrespective of the number of Shareholder Shares actually Transferred thereunder), the
Shareholder may Transfer up to but no more than thirty-one and one-half percent (31.5%) of
the Shareholder Shares in a marketed underwritten registered offering pursuant to
Article VI.
(c) Following the Transfer Limitation Period, the Shareholder may, subject to Section 5.1(e)
and Section 5.2(c), Transfer the Shareholder Shares, in whole at any time or in part from time to
time, without the prior consent of the Company and without restriction; provided,
however, that:
(i) any Transfer of Shareholder Shares effected pursuant to an SEC-registered offering
(including an underwritten registered offering) shall be subject to the requirements of
Article VI;
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(ii) in connection with any Transfer of Shareholder Shares (A) effected pursuant to a
Directed Offering or a privately-negotiated transaction not subject to the registration
requirements of the Securities Act, in each case in which the Shareholder (or any of its
Representatives) negotiates the terms of such Transfer directly with the third party
purchasers of such Shareholder Shares or (B) effected in accordance with Rule 144 under the
Securities Act, in each case the Shareholder shall not knowingly Transfer to any Person or
Group (whether such Person or Group is purchasing Shareholder Shares for its or their own
account(s) or as fiduciary on behalf of one or more accounts) in a single Transfer or series
of related Transfers, Shareholder Shares representing more than six and one-quarter percent
(6.25%) of the Voting Securities then outstanding (calculated on the basis of the aggregate
number of Voting Securities outstanding, as contained in the then most recently-available
filing by the Company with the SEC) and the Shareholder shall, to the extent reasonably
practicable, (x) request that each Person to which any such Shareholder Shares were
Transferred provide (but the Shareholder shall not be obligated to obtain) reasonable
confirmation thereof and (y) inform any underwriters or brokers engaged by the Shareholder
in connection with any such Transfer of the provisions of this Section 5.1(c)(ii); and
(iii) in connection with any Transfer of Shareholder Shares (A) effected pursuant to a
Directed Offering or a privately-negotiated transaction not subject to the registration
requirements of the Securities Act, in each case in which the Shareholder (or any of its
Representatives) negotiates the terms of such Transfer directly with the third party
purchasers of such Shareholder Shares or (B) effected in accordance with Rule 144 under the
Securities Act, in each case the Shareholder shall not knowingly Transfer to any Person or
Group (whether such Person or Group is purchasing Shareholder Shares for its or their own
account(s) or as fiduciary on behalf of one or more accounts) that (x) is not a Person of
the type described in Rule 13d-1(b)(1)(ii) under the Exchange Act (as in effect on the date
of this Agreement), other than a hedge fund, unless such Person is a private equity fund or
an affiliate of a private equity fund and has duly certified in writing that it is has no
intent to change or influence the control of the Company or participate in any transaction
having that effect as described in Rule 13d-1(c)(1) under the Exchange Act or (y) is a
Person that has engaged in a proxy contest or has otherwise filed a Schedule 13D that
disclosed any plan or proposal or other intent to change or influence control over an
issuer, in either case described in this clause (y) during the two (2) year period
immediately preceding the date of such Transfer.
(d) Notwithstanding the foregoing, (i) for the avoidance of doubt, none of Section 5.1(b),
Section 5.1(c)(ii) or Section 5.1(c)(iii) shall apply to, and nothing therein shall directly or
indirectly prohibit, restrict or otherwise limit, to the extent otherwise permitted by law, (A) any
Transfer of Shareholder Shares made in accordance with Section 5.1(f) or (B) at any time after the
Transfer Limitation Period, (x) the establishment of any “put equivalent position” (as defined
under Rule 16a-1 of the Exchange Act) or any “short” position (including through swaps, options,
other derivative positions, whether cash or physically settled, or otherwise), (y) any decrease in
any such “put equivalent position” or “short” position or (z) the establishment of any contract,
arrangement, agreement or understanding pursuant to which the Shareholder has the right or
opportunity to profit or share in any profit derived from any decrease in the value of Shareholder
Shares; and (ii) the restrictions set forth in Section 5.1(b), Section 5.1(c)(ii) and
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Section 5.1(c)(iii) shall terminate at such time as the Shareholder shall cease to
Beneficially Own Voting Securities representing at least the Ownership Threshold.
(e) Notwithstanding the foregoing, except for Transfers made pursuant to Section 5.1(b) or
Section 5.1(f), the Shareholder shall not, and the Shareholder Parent shall cause the Shareholder
not to, effect any Transfer of Shareholder Shares in any manner that would result in the failure of
the Shareholder to comply with its obligations under Section 6.10 in respect of any Holdback
Period.
(f) Notwithstanding anything to the contrary set forth in this Article V, the
Shareholder may, at any time (during or after the Transfer Limitation Period), (i) Transfer all,
but not less than all, of the Shareholder Shares to any Permitted Transferee; provided
that, prior to any such Transfer, such Permitted Transferee agrees in writing to acquire and hold
such Transferred Shareholder Shares subject to and in accordance with, and otherwise to be bound by
the terms of, this Agreement as if such Permitted Transferee were the Shareholder hereunder;
provided, further, that if, at any time after such Transfer, such Permitted Transferee (other than
the Shareholder Parent) ceases to be a wholly-owned Subsidiary of the Shareholder Parent, the
Shareholder Parent shall cause all Shareholder Shares held by such Permitted Transferee to be
Transferred to a Person that is, at such time, a Permitted Transferee and that, prior to such
Transfer, agrees in writing to acquire and hold such Transferred Shareholder Shares subject to and
in accordance with this Agreement as if such Permitted Transferee were the Shareholder hereunder;
(ii) Transfer the Shareholder Shares, in whole or in part, to the Company or any Subsidiary of the
Company, including pursuant to any redemption, share repurchase program, self tender offer or
otherwise; or (iii) Transfer the Shareholder Shares, in whole or in part, pursuant to any (A)
recapitalization, reclassification, consolidation, merger, share exchange, scheme of arrangement or
other business combination transaction involving the Company, in any case approved, accepted, or
recommended to the Shareholders of the Company by the Board or approved by the shareholders of the
Company or (B) tender, exchange or other similar offer for any Voting Securities that is commenced
by any Person or Group and the Board either (x) publicly recommends that shareholders of the
Company tender their Voting Securities to the Person or Group making such offer or (y) fails to
recommend that the shareholders of the Company reject such offer, in either case within ten (10)
Business Days after the date of commencement thereof.
Section 5.2 Legends on Shareholder Shares; Securities Act Compliance.
(a) Each share certificate representing Shareholder Shares shall bear the following legend
(and a comparable notation or other arrangement will be made with respect to any uncertificated
Shareholder Shares):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED.
SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE
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REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.”
(b) In addition, for so long as any restrictions set forth in Section 5.1 remain in effect,
such legend or notation shall include the following language:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF A
SHAREHOLDER’S AGREEMENT, DATED AS OF [•], 2011, AMONG THE ISSUER AND THE OTHER
PARTIES THERETO, A COPY OF WHICH MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF THE
ISSUER OR OBTAINED FROM THE ISSUER WITHOUT CHARGE.”
(c) The Shareholder agrees that it will, if requested by the Company, deliver at its expense
to the Company an opinion of reputable U.S. counsel selected by the Shareholder and reasonably
acceptable to the Company, in form and substance reasonably satisfactory to the Company and counsel
for the Company, that any Transfer made, other than in connection with an SEC- registered offering
by the Company, does not require registration under the Securities Act.
(d) In connection with any Transfer pursuant to this Article V, the Company shall
remove such portion of the legend (or eliminate or terminate such portion of the notation or
arrangement) described in Sections 5.2(a) and 5.2(b) as is appropriate under the circumstances. At
such time as the Shareholder delivers at its expense to the Company an opinion of reputable U.S.
counsel selected by the Shareholder and reasonably acceptable to the Company, in form and substance
reasonably satisfactory to the Company and counsel for the Company, that all of the Shareholder
Shares may be freely sold without registration under the Securities Act, the Company agrees that it
will promptly after the later of the delivery of such opinion and, in the case of certificated
Shareholder Shares, the delivery by the Shareholder to the Company or its transfer agent of a
certificate or certificates (in the case of a Transfer, in the proper form for Transfer)
representing such Shareholder Shares issued with the legend set forth in Section 5.2(a), deliver or
cause to be delivered to the Shareholder a replacement stock certificate or certificates
representing such Shareholder Shares that is free from the legend set forth in Section 5.2(a) (or
in the case of uncertificated Shareholder Shares, free of any notation or arrangement set forth in
Section 5.2(a)). At such time as no restrictions set forth in Section 5.1 remain in effect, the
Company agrees that it will, promptly upon the request of the Shareholder and, in the case of
certificated Shareholder Shares, the delivery by the Shareholder to the Company or its transfer
agent of a certificate or certificates (in the case of a Transfer, in the proper form for Transfer)
representing Shareholder Shares issued with the legend set forth in Section 5.2(b), deliver or
cause to be delivered to the Shareholder a replacement stock certificate or certificates
representing such Shareholder Shares that is free from the legend set forth in Section 5.2(b) (or
in the case of uncertificated Shareholder Shares, free of any notation or arrangement set forth in
Section 5.2(b)).
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Section 5.3 Change of Control of the Shareholder Parent.
(a) In the event that, during the period from the Closing Date until the occurrence of a Board
Right Termination Event, a Change of Control with respect to the Shareholder Parent is consummated
that results from a Shareholder Parent Change of Control Event, to the extent permitted by Irish
law, the Company shall have the right, but not the obligation, to purchase (by way of redemption or
otherwise) from the Shareholder all, but not less than all, of the Shareholder Shares held by the
Shareholder on the date of consummation of such Change of Control. The Shareholder Parent shall
give the Company written notice of the occurrence of such Change of Control within ten (10)
Business Days after its consummation and the Company’s right under this Section 5.3 shall be
exercisable by delivering a written election notice to the Shareholder (such notice, an
“Election Notice”) within ten (10) Business Days after the date of receipt by the Company
of such notice from the Shareholder Parent (or at an earlier time following the consummation of
such Change of Control). The delivery of an Election Notice by the Company shall irrevocably bind
the Company to purchase, and the Shareholder to sell, all of the Shareholder Shares held by the
Shareholder on the date of consummation of such Change of Control in accordance with this Section
5.3. In the event that the Company fails to deliver an Election Notice within such ten (10)
Business Day period following notice by the Shareholder Parent of the consummation of the Change of
Control, the Company shall be deemed to have irrevocably elected not to exercise its right to
purchase such Shareholder Shares in respect of such Change of Control pursuant to this Section 5.3.
(b) The purchase price for the Shareholder Shares shall equal the product of (i) the aggregate
number of Shareholder Shares held by the Shareholder on the date of consummation of such Change of
Control multiplied by (ii) the Market Value of each such Shareholder Share, determined as at the
date of consummation of such Change of Control (the “Change of Control Purchase Price”).
(c) Subject to the receipt by the parties hereto of all necessary shareholder, antitrust and
other governmental, regulatory and third party approvals, the closing of the purchase of the
Shareholder Shares shall take place at the executive offices of the Company at 10:00 a.m., local
time, on the fifth (5th) Business Day after the date the Election Notice is delivered to the
Shareholder, or on such later Business Day reasonably designated by the Company or the Shareholder,
as applicable, in order to permit (i) any necessary antitrust waiting period to expire; (ii) any
other necessary governmental, regulatory or third party approvals to be obtained; and (iii) the
Shareholder Parent to seek the requisite approval of its shareholders for such sale if and to the
extent that the Listing Rules of the Irish Stock Exchange (as in effect at such time) would require
such approval. At the closing, the Shareholder shall deliver to the Company the share certificate
or certificates representing all certificated Shareholder Shares held by the Shareholder on the
date of consummation of such Change of Control, in exchange for the payment in full of the Change
of Control Purchase Price by wire transfer of immediately available funds to an account or accounts
that shall be designated by the Shareholder in writing to the Company at least two (2) Business
Days prior to such closing.
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ARTICLE VI
REGISTRATION RIGHTS
Section 6.1 Demand Request.
(a) Until the Registration Rights Termination Date, in connection with any Transfer of
Registrable Shares permitted under Section 5.1(b), the Shareholder shall, and in connection with
any other Transfer of Registrable Shares after the Transfer Limitation Period, the Shareholder may,
request in writing that the Company effect a registration under the Securities Act of all or such
part of the Registrable Shares as the Shareholder requests to Transfer, subject in each case to the
minimum threshold requirements applicable to such registration pursuant to Section 5.1(b), Section
6.1(b) or Section 6.1(c) (such request, a “Demand Request”) (it being understood that the
Demand Request in respect of the marketed underwritten offering to be effected under Section
5.1(b)(i) may be made no sooner than 45 days before the six (6) month anniversary of the Closing
Date, but may be made at any time thereafter). Upon receipt of any Demand Request, the Company
shall use reasonable endeavors to file, as promptly as practicable but in any event not later than
the date that is thirty (30) calendar days after receipt by the Company of such Demand Request, in
accordance with the provisions of this Agreement, a Registration Statement with the SEC (a
“Demand Registration Statement”) covering all such Registrable Shares, in accordance with
the method or methods of distribution thereof elected by the Shareholder (which, for the avoidance
of doubt, shall be limited to marketed underwritten registered offerings in the case of Transfers
under Section 5.1(b)). Each Demand Request shall specify the aggregate number of Registrable
Shares to be registered and the intended method or methods of distribution thereof. Any
registration requested by the Shareholder under this Section 6.1(a), Section 6.1(c) or Section
6.1(e) is referred to in this Agreement as a “Demand Registration.”
(b) The Shareholder shall be entitled to initiate no more than six (6) Demand Registrations,
including Shelf Underwritten Offerings, in the aggregate; provided, however, that
the Company shall not be obligated to effect such Demand Registration (i) unless the number of
Registrable Shares requested to be registered by the Shareholder is at least five million
(5,000,000) (or the equivalent thereof as of the Closing Date in the event of any stock splits);
and (ii) during the ninety (90) calendar day period following the effective date of a Registration
Statement pursuant to any other Demand Registration. No request for registration shall count for
the purposes of the limitations in this Section 6.1(b) if (v) the Shareholder determines in good
faith to withdraw (prior to the effective date of the Registration Statement relating to such
request) the proposed registration, upon written notice to the Company, due to marketing conditions
or regulatory reasons prior to the execution of an underwriting agreement or purchase agreement
relating to such request; provided that the Shareholder reimburses the Company for all
Registration Expenses incurred in good faith by the Company in connection with such Demand
Registration prior to the date of such withdrawal, (w) the Registration Statement relating to a
Demand Request is not declared effective within one hundred eighty (180) calendar days after the
date such Registration Statement is filed with the SEC (other than by reason of the Shareholder
having refused to proceed or a misrepresentation or an omission by the Shareholder), (x) prior to
the sale of at least fifty percent (50%) of the Registrable Shares included in the applicable
registration relating to a Demand Request, such registration is
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adversely affected by any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court for any reason and the Company fails to have such stop order,
injunction, or other order or requirement removed, withdrawn or resolved to the reasonable
satisfaction of the Shareholder within thirty (30) calendar days after the date of such order, (y)
the Shareholder withdraws its request in the circumstances described in Section 6.1(f) or (z) the
conditions to closing specified in any underwriting agreement or purchase agreement entered into in
connection with the registration relating to such request are not satisfied as a result of a
default or breach thereunder by the Company that proximately and primarily caused the failure of
such conditions.
(c) Following the twelve (12) month anniversary of the Closing Date, the Company shall use
reasonable endeavors to qualify for registration on Form S-3 or any comparable or successor form or
forms or any similar short-form registration (a “Short-Form Registration”), and, if
requested by the Shareholder and available to the Company, such Short-Form Registration shall be a
“shelf” registration statement providing for the registration, and the sale on a continuous or
delayed basis, of the Registrable Shares, pursuant to Rule 415 under the Securities Act or
otherwise (a “Shelf Registration Statement”). Following the twelve (12) month anniversary
of the Closing Date and prior to the Registration Rights Termination Date, the Shareholder may
request no more than five (5) Short-Form Registrations, if available to the Company, with respect
to the Registrable Shares, which shall count toward the six (6) Demand Registrations to which the
Shareholder is entitled pursuant to Section 6.1(b); provided that the Company shall not be
obligated to effect any Short-Form Registration pursuant to this Section 6.1(c), (x) unless the
number of Registrable Shares requested to be registered by the Shareholder is at least five million
(5,000,000) (or the equivalent thereof as of the Closing Date in the event of any stock splits) and
(y) during the ninety (90) calendar day period following the effective date of a Registration
Statement pursuant to any other Demand Registration, including any Shelf Registration Statement.
In no event shall the Company be obligated to effect any shelf registration other than pursuant to
a Short-Form Registration. If any Demand Registration is proposed to be a Short-Form Registration
and an underwritten offering, if the managing underwriter(s) shall advise the Company and the
Shareholder that, in its good faith opinion, it is of material importance to the success of such
proposed offering to include in such Registration Statement information not required to be included
in a Short-Form Registration, then the Company shall supplement the Short-Form Registration as
reasonably requested by such managing underwriter(s).
(d) Upon filing any Short-Form Registration, the Company shall use reasonable endeavors to
keep such Short-Form Registration effective with the SEC, to re-file such Short-Form Registration
upon its expiration, and to cooperate in any shelf take-down, whether or not underwritten, by
amending or supplementing the Prospectus related to such Short-Form Registration as may be
reasonably requested by the Shareholder, or as otherwise required, until the earlier of (i) such
time as all Registrable Shares that could be sold in such Short-Form Registration have been sold or
are no longer outstanding and (ii) the Registration Rights Termination Date.
(e) To the extent that the Company is a well-known seasoned issuer (as defined in Rule 405
under the Securities Act) (a “WKSI”) at the time any Demand Request for a Short-Form
Registration is submitted to the Company and, pursuant to such Demand Request, the
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Shareholder requests that the Company file a Shelf Registration Statement, the Company shall
file an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) on
Form S-3 (an “Automatic Shelf Registration Statement”) in accordance with the requirements
of the Securities Act and the rules and regulations of the SEC thereunder, which covers those
Registrable Shares which are requested to be registered. At the written request of the
Shareholder, the Company shall pay the registration fee in respect of a take-down from an Automatic
Shelf Registration Statement promptly and, in any event, within one (1) Business Day of receiving
such written request. The Company shall use reasonable endeavors to remain a WKSI (and not to
become an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period in
which any Automatic Shelf Registration Statement is effective. If, at any time following the
filing of an Automatic Shelf Registration Statement when the Company is required to re-evaluate its
WKSI status, the Company determines that it is not a WKSI, the Company shall use reasonable
endeavors to post-effectively amend the Automatic Shelf Registration Statement to a Shelf
Registration Statement on Form S-3 or file a new Shelf Registration Statement on Form S-3, have
such Shelf Registration Statement declared effective by the SEC and keep such Registration
Statement effective during the period in which such Short-Form Registration is required to be kept
effective in accordance with Section 6.1(d).
(f) If the filing, initial effectiveness or continued use of a Registration Statement,
including a Shelf Registration Statement, with respect to a Demand Registration, would require the
Company to make a public disclosure of material non-public information, which disclosure the
Company determines in good faith (after consultation with external legal counsel), (i) would be
required to be made at such time in any Registration Statement so that such Registration Statement
would not be materially misleading; (ii) would not be required to be made at such time but for the
filing, effectiveness or continued use of such Registration Statement; and (iii) would reasonably
be expected to have an adverse effect on the Company or its business or on the Company’s ability to
effect a reasonably imminent material proposed acquisition, disposition, financing, reorganization,
recapitalization or similar transaction, then the Company may, upon giving prompt written notice of
such determination to the Shareholder, delay the filing or initial effectiveness of, or suspend the
use of, as applicable, such Registration Statement or a Prospectus or Free Writing Prospectus;
provided, however, that the Company shall not be permitted to do so (x) on more
than one (1) occasion in any six (6) month period or (y) for any single period of time in excess of
sixty (60) days (in any such case, a “Blackout Period”). In the event that the Company
exercises its rights under the preceding sentence, the Shareholder agrees to suspend, promptly upon
receipt of the notice referred to above, the use of any Prospectus relating to such Demand
Registration in connection with any sale or offer to sell Registrable Shares. If the Company so
delays the filing or initial effectiveness of, or suspend the use of, as applicable, such
Registration Statement or a Prospectus or Free Writing Prospectus, the Shareholder shall be
entitled to withdraw such request and, if such request is withdrawn, such registration request
shall not count for the purposes of the limitations set forth in Section 6.1(b) or Section 6.1(c).
(g) If a Demand Request provides that the Shareholder intends the Registrable Shares covered
thereby shall be distributed by means of an underwritten offering, or if the Shareholder delivers
to the Company a Take-Down Notice, the lead underwriter to administer the offering shall be chosen
by the Shareholder, subject to the prior written consent, not to be unreasonably withheld or
delayed, of the Company.
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(h) The Company shall not include in any Demand Registration pursuant to this Section 6.1 any
securities that are not Registrable Shares without the prior written consent of the Shareholder.
(i) The Shareholder shall have the right to notify the Company prior to the effectiveness of a
Registration Statement relating to a Demand Registration that such Registration Statement be
abandoned or withdrawn, in which event the Company shall promptly abandon or withdraw such
Registration Statement.
Section 6.2 Piggy-Back Registration.
(a) If, at any time following the six (6) month anniversary of the Closing Date, the Company
proposes or is required to file a Registration Statement under the Securities Act with respect to
an offering of securities of the Company of the same class as the Registrable Shares (such
securities “Similar Securities”), whether or not for sale for its own account (including a
Shelf Registration Statement on Form S-3, but excluding a Registration Statement that is (i) solely
in connection with a Special Registration or (ii) pursuant to a Demand Registration in accordance
with Section 6.1, the Company shall give written notice as promptly as practicable, but not later
than thirty (30) calendar days prior to the anticipated date of filing of such Registration
Statement, to the Shareholder of its intention to effect such registration and shall include in
such registration all Registrable Shares with respect to which the Company has received written
notice from the Shareholder for inclusion therein within fifteen (15) calendar days after the date
of the Company’s notice (a “Piggyback Registration”). In the event that the Shareholder
makes such written request, the Shareholder may withdraw its Registrable Shares from such Piggyback
Registration by giving written notice to the Company and the managing underwriter, if any, at any
time at least two (2) Business Days prior to the effective date of the Registration Statement
relating to such Piggyback Registration. The Company may terminate or withdraw any Piggyback
Registration under this Section 6.2(a), whether or not the Shareholder has elected to include
Registrable Shares in such registration; provided, however, that, if the
Shareholder has elected to include Registrable Shares in such registration and the Company
terminates or withdraws such Piggyback Registration after the date on which the applicable
Registration Statement is declared effective, the Company shall reimburse the Shareholder for all
Selling Expenses paid by the Shareholder in respect of Registrable Shares included therein which
are unsold on the date of such withdrawal or termination. No Piggyback Registration shall count
towards the number of Demand Registrations to which the Shareholder is entitled under Section
6.1(b) or Section 6.1(c).
(b) If a Piggyback Registration under Section 6.2(a) is proposed to be underwritten, the
Company shall so advise the Shareholder as a part of the written notice given pursuant to Section
6.2(a). In such event, the lead underwriter to administer the offering shall be chosen by the
Company, subject to the prior written consent, not to be unreasonably withheld or delayed, of the
Shareholder.
(c) The Company shall pay all expenses (subject to and in accordance with Section 6.5) in
connection with any Piggyback Registration, whether or not any registration or prospectus becomes
effective or final or is terminated or withdrawn by the Company.
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(d) If any Similar Securities are to be sold in an underwritten primary offering on behalf of
the Company, the Shareholder may include all the Registrable Shares it requests in such Piggyback
Registration on the same terms and conditions as such Similar Securities included therein;
provided, however, that if such offering involves a firm commitment underwritten
offering and the managing underwriter(s) of such offering advises the Company and the Shareholder
in writing that, in its good faith opinion, the total number or dollar amount of Similar Securities
proposed to be sold in such offering and Registrable Shares requested by the Shareholder to be
included therein, in the aggregate, exceeds the largest number or dollar amount of securities that
can be sold in such offering without adversely affecting the marketability of the offering
(including an adverse effect on the per share offering price), the Company shall include in such
registration or prospectus only such number of securities that in the good faith opinion of such
underwriter(s) can be sold in such offering without adversely affecting the marketability of the
offering (including an adverse effect on the per share offering price), which securities shall be
included in the following order of priority:
(i) first, the securities that the Company proposes to sell;
(ii) second, the Registrable Shares requested to be included by the Shareholder
and any Similar Securities requested to be included by any other Persons exercising their
contractual rights to piggyback registration, pro rata (if applicable) on the basis of the
aggregate number of securities so requested to be included therein; and
(iii) third, any securities requested to be included therein by any other
Persons (other than the Company and the Shareholder and other Persons with restricted
piggyback registration rights), allocated among such Persons in such manner as the Company
may determine.
(e) If the securities to be registered pursuant to this Section 6.2 are to be sold in an
underwritten secondary offering on behalf of holders of Similar Securities, the Shareholder may
include all Registrable Shares requested to be included in such registration in such offering on
the same terms and conditions as any Similar Securities included therein; provided,
however, that if the managing underwriter(s) of such offering advises the Company and the
Shareholder in writing that, in its good faith opinion, the total number or dollar amount of
securities to be included therein exceeds the largest number or dollar amount of securities that
can be sold in such offering without adversely affecting the marketability of the offering
(including an adverse effect on the per share offering price), the Company shall include in such
registration only such number of securities that in the reasonable opinion of such underwriter(s)
can be sold without adversely affecting the marketability of the offering (including an adverse
effect on the per share offering price), which securities shall be so included in the following
order of priority:
(i) first, the Similar Securities requested to be included therein by the
holders exercising their contractual rights to demand such registration and the Registrable
Shares requested to be included by the Shareholder, pro rata (if applicable) on the basis of
the aggregate number of securities so requested to be included therein by each such holder;
and
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(ii) second, any Similar Securities requested to be included therein by the
Company or any other Person not exercising a contractual right to demand registration,
allocated among such Persons in such manner as the Company may determine.
Section 6.3 Termination of Registration Obligation.
Notwithstanding anything to the contrary herein, the obligation of the Company to register
Registrable Shares pursuant to this Article VI and maintain the effectiveness of any Demand
Registration Statement filed pursuant to Section 6.2 shall terminate on the earliest of (a) the
date on which reputable U.S. counsel shall have delivered an opinion, in form and substance
reasonably satisfactory to the Company and the Shareholder, that all remaining Shareholder Shares
Beneficially Owned by the Shareholder may be freely sold without registration under the Securities
Act, including under Rule 144 without being subject to the volume limitations and manner of sale
restrictions contained therein, (b) the date that is four (4) months after the first date on which
the Shareholder Beneficially Owns Shareholder Shares representing less than the Ownership Threshold
and (c) the first date on which the Shareholder Beneficially Owns Shareholder Shares representing
less than five percent (5%) of the outstanding Voting Securities (the “Registration Rights
Termination Date”).
Section 6.4 Registration Procedures. Subject to Section 6.1(f), whenever the Shareholder shall have requested that any
Registrable Shares be registered pursuant to Section 6.1 or Section 6.2, the Company shall use
reasonable endeavors to effect, as soon as practicable as provided herein, the registration and
sale of such Registrable Shares in accordance with the intended method or methods of disposition
thereof, until the Registration Rights Termination Date. Without limiting the generality of the
foregoing, and pursuant thereto, the Company shall, until the Registration Rights Termination Date,
cooperate in the sale of such Registrable Shares and shall, as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with respect to such
Registrable Shares as provided herein, make all required filings with FINRA and, if such
Registration Statement is not automatically effective upon filing, use reasonable endeavors
to cause such Registration Statement to be declared effective as promptly as practicable
after the filing thereof; provided, however, that, before filing a
Registration Statement or Prospectus or any amendments or supplements thereto (including
free writing prospectuses under Rule 433 under the Securities Act, each, a “Free Writing
Prospectus”), the Company shall furnish to the Shareholder and the managing
underwriter(s), if any, copies of the Registration Statement and all other documents
proposed to be filed (including exhibits thereto), including, upon the reasonable request of
the Shareholder and to the extent reasonably practicable, all documents that would be
incorporated by reference or deemed to be incorporated by reference therein, which
Registration Statement and documents will be subject to the reasonable review and comment of
the Shareholder and its counsel, at the Shareholder’s sole expense. The Company shall not
file any Registration Statement or Prospectus or any amendments or supplements thereto
(including Free Writing Prospectuses) with respect to any registration pursuant to Section
6.1 to which the Shareholder and its counsel or the managing underwriter(s), if any, shall
reasonably object, in writing, on a timely basis,
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unless in the opinion of the Company, such filing is necessary to comply with
applicable law;
(b) prepare and file with the SEC such amendments and supplements to such Registration
Statement, the Prospectus used in connection therewith (including Free Writing Prospectuses)
and Exchange Act reports as may be necessary to keep such Registration Statement effective
for a period of (i) with respect to a Registration Statement other than a Shelf Registration
Statement, (A) not less than four (4) months, (B) if such Registration Statement relates to
an underwritten offering, such longer period as, in the opinion of counsel for the
underwriter(s), a Prospectus is required by law to be delivered in connection with sales of
Registrable Shares by an underwriter or dealer or (C) such shorter period as will terminate
when all of the securities covered by such Registration Statement have been disposed of in
accordance with the intended methods of distribution by the seller or sellers thereof set
forth in such Registration Statement (but in any event not before the expiration of any
longer period required under the Securities Act); or (ii) in the case of a Shelf
Registration Statement, the period set forth in Section 6.1(d), and to comply with the
provisions of the Securities Act with respect to the disposition of all securities covered
by such Registration Statement until such time as all of such securities have been disposed
of in accordance with the intended methods of disposition by the seller or sellers thereof
set forth in such Registration Statement;
(c) furnish to the Shareholder and the managing underwriter(s), if any, such number of
conformed copies, without charge, of such Registration Statement, each amendment and
supplement thereto, including each preliminary and final Prospectus, any Free Writing
Prospectus, all exhibits and other documents filed therewith and such other documents as
such Persons may reasonably request, including in order to facilitate the disposition of the
Registrable Shares in accordance with the intended method or methods of disposition thereof;
and the Company, subject to the penultimate paragraph of this Section 6.4, hereby consents
to the use of such Prospectus and each amendment or supplement thereto by Shareholder and
the managing underwriter(s), if any, in connection with the offering and sale of the
Registered Shares covered by such Prospectus and any such amendment or supplement thereto;
(d) use its reasonable endeavors to register or qualify such Registrable Shares under
such other securities or “blue sky” laws of such jurisdictions as the Shareholder reasonably
requests and do any and all other acts and things that may be necessary or reasonably
advisable to enable the Shareholder to consummate the disposition in such jurisdictions of
the Registrable Shares in accordance with the intended method of distribution thereof
(provided that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify but for
this subsection; (ii) subject itself to taxation in any jurisdiction wherein it is not so
subject; or (iii) take any action which would subject it to general service of process in
any jurisdiction wherein it is not so subject);
(e) use its reasonable endeavors to cause all Registrable Shares covered by such
Registration Statement to be registered with or approved by such other governmental
agencies, authorities and self-regulatory bodies as may be necessary or
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reasonably advisable in light of the business and operations of the Company to enable
the Shareholder or the managing underwriter(s), if any, to consummate the disposition of
such Registrable Shares in the United States in accordance with the intended method of
disposition thereof;
(f) promptly notify the Shareholder and the managing underwriter(s), if any, at any
time when a Prospectus relating thereto is required to be delivered under the Securities Act
of the occurrence of any event or existence of any fact as a result of which the Prospectus
(including any information incorporated by reference therein) included in such Registration
Statement, as then in effect, contains an untrue statement of a material fact or omits any
fact necessary to make the statements therein not misleading in light of the circumstances
under which they were made, and, as promptly as practicable upon discovery, prepare and
furnish to the Shareholder a reasonable number of copies of a supplement or amendment to
such Prospectus, or file any other required document, as may be necessary so that, as
thereafter delivered to any prospective purchasers of such Registrable Shares, such
Prospectus shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading in light of the circumstances
under which they were made;
(g) notify the Shareholder, Shareholder’s counsel and the managing underwriter(s) of
any underwritten offering, if any, (i) when the Registration Statement, any pre-effective
amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to
the Registration Statement or any Free Writing Prospectus has been filed and, with respect
to such Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the SEC for amendments or supplements to such Registration
Statement or to such Prospectus or for additional information; (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of such Registration Statement or the
initiation of any proceedings for that purpose; and (iv) of the suspension of the
qualification of such securities for offering or sale in any jurisdiction, or the
institution of any proceedings for any such purposes;
(h) use its reasonable endeavors to cause all such Registrable Shares covered by such
registration statement to be listed (after notice of issuance) on NASDAQ or the principal
securities exchange or interdealer quotation system on which the Ordinary Shares are then
listed or quoted;
(i) use its reasonable endeavors to cooperate with the Shareholder and the managing
underwriter(s), if any, to facilitate the timely preparation and delivery of certificates
representing the Registrable Shares to be sold under the Registration Statement in a form
eligible for deposit with the Depository Trust Corporation not bearing any restrictive
legends (other than as required by the Depository Trust Corporation) and not subject to any
stop transfer order with any transfer agent, and cause such Registrable Shares to be issued
in such denominations and registered in such names as the managing underwriter(s), if any,
may request in writing or, if not an underwritten offering, in accordance with the
instructions of the Shareholder, in each case at least two (2) Business Days prior to any
sale of Registrable Shares;
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(j) enter into such agreements (including underwriting agreements with customary
provisions) and take all such other actions as the Shareholder (if such registration is a
Demand Registration) or the managing underwriter(s), if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Shares;
(k) make available for inspection by the Shareholder and Shareholder’s counsel, any
managing underwriter(s) participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by the Shareholder or
underwriter(s), all financial and other records, pertinent corporate documents and documents
relating to the business of the Company, and cause the Company’s officers, directors,
employees and independent accountants to supply all information reasonably requested by the
Shareholder or such underwriter(s), attorney, accountant or agent in connection with such
Registration Statement; provided, however, that the Shareholder shall, and
shall use reasonable endeavors to cause each such underwriter(s), accountant or other agent
to (i) enter into a confidentiality agreement in form and substance reasonably satisfactory
to the Company; and (ii) minimize the disruption to the Company’s business in connection
with the foregoing;
(l) otherwise use reasonable endeavors to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon as reasonably
practicable after the effective date of the Registration Statement, an earnings statement
covering the period of at least 12 months beginning with the first day of the Company’s
first full calendar quarter after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder;
(m) in the event of the issuance of any stop order suspending the effectiveness of a
Registration Statement, or of any order suspending or preventing the use of any related
Prospectus or ceasing trading of any securities included in such Registration Statement for
sale in any jurisdiction, use reasonable endeavors to obtain the withdrawal of such order as
soon as reasonably practicable;
(n) subject to Section 6.5, cause its senior management to use reasonable endeavors to
support the marketing of the Registrable Shares covered by the Registration Statement
pursuant to any Demand Registration (including participation in “road shows”), taking into
account the Company’s business needs;
(o) obtain one or more comfort letters, addressed to the Shareholder, dated the
effective date of such Registration Statement and, if requested by the Shareholder, dated
the date of sale by the Shareholder (and, if such registration includes an underwritten
public offering, including any Shelf Underwritten Offering, addressed to each of the
managing underwriter(s) and dated the date of the closing under the underwriting agreement
for such offering), signed by the independent public accountants who have issued an audit
report on the Company’s financial statements included in such Registration Statement in
customary form and covering such matters of the type customarily covered by comfort letters
as the Shareholder reasonably requests;
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(p) provide legal opinions of the Company’s outside counsel (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the managing
underwriter(s), if any, and the Shareholder’s counsel), addressed to the Shareholder, dated
the effective date of such Registration Statement, each amendment and supplement thereto,
and, if requested by the Shareholder, dated the date of sale by the Shareholder (and, if
such registration includes an underwritten public offering, including any Shelf Underwritten
Offering, addressed to each of the managing underwriter(s) and dated the date of the closing
under the underwriting agreement), with respect to the Registration Statement, each
amendment and supplement thereto (including the preliminary Prospectus) and such other
documents relating thereto in customary form and covering such matters of the type
customarily covered by legal opinions of such nature and such other matters as may be
reasonably requested by Shareholder counsel (and, if applicable, by the managing
underwriter(s)); and
(q) use its reasonable endeavors to take or cause to be taken all other actions, and do
and cause to be done all other things, necessary or reasonably advisable in the opinion of
the Shareholder’s counsel to effect the registration of such Registrable Shares contemplated
hereby.
Subject to the limitations on the Company’s ability to delay the filing or initial
effectiveness of, or suspend the use of, as applicable, a Registration Statement or a Prospectus or
Free Writing Prospectus pursuant to Section 6.1(f), the Shareholder agrees that, upon receipt of
any written notice from the Company of the happening of any event of the kind described in Section
6.4(f), the Shareholder shall promptly discontinue its disposition of Registrable Shares pursuant
to any Registration Statement until the Shareholder’s receipt of the copies of the supplemented or
amended prospectus contemplated by Section 6.4(f). If so directed by the Company, the Shareholder
shall deliver to the Company (at the Company’s expense) all copies, other than permanent file
copies, in the Shareholder’s possession of the Prospectus covering such Registrable Shares at the
time of receipt of such notice. In the event that the Company shall give any such notice, the
period mentioned in Section 6.4(b), as applicable, shall be extended by the number of days during
the period from and including the date of the giving of such notice to and including the date when
the Shareholder shall have received the copies of the supplemented or amended Prospectus
contemplated by Section 6.4(f).
In the case of any underwritten offering of Registrable Shares registered under a Demand
Registration Statement filed pursuant to Section 6.1(a), or in the case of a Piggyback Registration
under Section 6.2, (i) all Registrable Shares or Similar Securities to be included in such offering
or registration, as the case may be, shall be subject to the applicable underwriting agreement with
customary terms and neither the Shareholder nor any holder of Similar Securities may participate in
such offering or registration unless such Person agrees to sell such Person’s securities on the
basis provided therein; and (ii) neither the Shareholder nor any holder of Similar Securities may
participate in such offering or registration unless such Person completes and executes all
questionnaires, indemnities, underwriting agreements and other documents (other than powers of
attorney) reasonably required to be executed in connection therewith, and provides such other
information to the Company or the underwriter(s) as may be reasonably requested to offer or
register such Person’s Registrable Shares or Similar Securities, as the case may be;
provided, however, that (A) the Shareholder shall not be required to make any
representations or
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warranties other than those related to title and ownership of, and power and authority to
transfer, the Registrable Shares included therein and as to the accuracy and completeness of
statements made in the applicable Registration Statement, Prospectus or other document in reliance
upon, and in conformity with, written information prepared and furnished to the Company or the
managing underwriter(s) by the Shareholder pertaining exclusively to the Shareholder and (B) the
aggregate amount of liability of the Shareholder pursuant to any indemnification obligation
thereunder shall not exceed the net proceeds received by the Shareholder from such offering.
Section 6.5 Registration Expenses.
(a) Except as otherwise provided in this Agreement, all expenses incidental to the Company’s
performance of or compliance with this Agreement (the “Registration Expenses”), including
(i) all registration and filing fees (including (A) with respect to filings required to be made
with the SEC, all applicable securities exchanges and/or FINRA and (B) compliance with securities
or blue sky laws including any fees and disbursements of counsel for the underwriter(s) in
connection with blue sky qualifications of the Registrable Shares pursuant to Section 6.4(d)); (ii)
word processing, duplicating and printing expenses (including expenses of printing certificates for
Registrable Shares in a form eligible for deposit with The Depository Trust Company and of printing
Prospectuses, if the printing of Prospectuses is requested by the managing underwriter(s), if any,
or by the Shareholder); (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company; (v) fees and disbursements of all independent certified
public accountants (including, without limitation, the fees and disbursements in connection with
any “cold comfort” letters required by this Agreement), other special experts, retained by the
Company, shall be borne by the Company. The Company shall, in any event, pay its internal
expenses, the expenses of any annual audit or quarterly review, the expenses of any liability
insurance, the expenses and fees for listing the Registrable Shares to be registered on the
applicable securities exchange. All underwriting discounts, selling commissions and transfer taxes
(collectively, “Selling Expenses”) incurred in connection with the offering of any
Registrable Shares shall be borne by the Shareholder. For the avoidance of doubt, the Company
shall not bear any Selling Expenses in connection with its obligations under this Agreement. All
expenses incurred in connection with any “road shows” undertaken pursuant to Section 6.4(n) shall
be borne in equal proportion by the Shareholder and the Company.
(b) The Company shall not, however, be required to pay Registration Expenses for any Demand
Registration begun pursuant to Section 6.1(a), Section 6.1(c) or Section 6.1(e), the request of
which has been subsequently withdrawn by the Shareholder unless the withdrawal is (i) requested
under the circumstances described in Section 6.1(f); or (ii) based upon (A) any fact, circumstance,
event, change, effect or occurrence that individually or in the aggregate with all other facts or
circumstances, events, changes, effects or occurrences has a material adverse effect on the Company
or (B) material adverse information concerning the Company that the Company had not publicly
disclosed at least forty-eight (48) hours prior to such registration request or that the Company
had not otherwise notified, in writing, the Shareholder of at the time of such request.
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Section 6.6 Indemnification; Contribution.
(a) The Company shall, and it hereby agrees to, (i) indemnify and hold harmless the
Shareholder (but not, for the avoidance of doubt, any Shareholder Designee), the Shareholder Parent
and each underwriter in any offering or sale of Registrable Shares, and its and their respective
Representatives and controlling Persons, if any, from and against any and all losses, claims,
damages or liabilities, actions or proceedings (whether commenced or threatened) in respect thereof
and expenses (including reasonable fees of counsel) (collectively, “Claims”) to which each
such indemnified party may become subject, insofar as such Claims (including any amounts paid in
settlement reached in accordance with the requirements for consent as provided herein), or actions
or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement, or any preliminary or
final Prospectus (including any Free Writing Prospectus incorporated into such Registration
Statement) contained therein, or any amendment or supplement thereto, or any document incorporated
by reference therein, or arise out of or are based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
(in the case of any preliminary or final Prospectus (including any Free Writing Prospectus
incorporated into such Registration Statement, in light of the circumstances in which they were
made), not misleading; and (ii) reimburse periodically upon demand such indemnified party for any
legal or other out-of-pocket expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such Claims; provided, however, that the
Company shall not be liable to any such indemnified party in any such case to the extent that any
such Claims arise out of or are based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement, or preliminary or final
Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement),
or amendment or supplement thereto, in reliance upon and in conformity with information furnished
in writing to the Company by the Shareholder or any Representative of the Shareholder expressly for
use therein, or if the Shareholder sold securities to the Person alleging such Claims without
sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable
Prospectus (excluding any documents incorporated by reference therein) or of the applicable
Prospectus, as then amended or supplemented (excluding any documents incorporated by reference
therein), if the Company had previously furnished copies thereof to the Shareholder and such
Prospectus corrected such untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement.
(b) The Shareholder shall, and hereby agrees to, (i) indemnify and hold harmless the Company
and each underwriter in any offering or sale of Registrable Shares, and its and their respective
Representatives and controlling Persons, if any, from and against any Claims to which each such
indemnified party may become subject, insofar as such Claims (including any amounts paid in
settlement reached in accordance with the requirements for consent as provided herein), or actions
or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement, or any preliminary or
final Prospectus (including any Free Writing Prospectus incorporated into such Registration
Statement) contained therein, or any amendment or supplement thereto, or any document incorporated
by reference therein, or arise out of or are based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
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the statements therein (in the case of any preliminary or final Prospectus (including any Free
Writing Prospectus incorporated into such Registration Statement), in light of the circumstances in
which they were made), not misleading; and (ii) reimburse periodically upon demand such indemnified
party for any legal or other out-of-pocket expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such Claims, in each case only to the extent that
such untrue statement or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with information furnished in writing to the Company by the
Shareholder or any Representative of the Shareholder, expressly for use therein, or if the
Shareholder sold securities to the Person alleging such Claims without sending or giving, at or
prior to the written confirmation of such sale, a copy of the applicable Prospectus (excluding any
documents incorporated by reference therein) or of the applicable Prospectus, as then amended or
supplemented (excluding any documents incorporated by reference therein), if the Company had
previously furnished copies thereof to the Shareholder and such Prospectus corrected such untrue
statement or alleged untrue statement or omission or alleged omission made in such Registration
Statement; provided, however, that the liability of the Shareholder hereunder shall
be limited to an amount equal to the dollar amount of the net proceeds received by the Shareholder
from Shareholder Shares sold by the Shareholder pursuant to such Registration Statement or
Prospectus.
(c) The Shareholder and the Company agree that if, for any reason, the indemnification
provisions contemplated by Section 6.6(a) or Section 6.6(b) are unavailable to or are insufficient
to hold harmless an indemnified party in respect of any Claims referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such Claims in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to
statements or omissions that that resulted in such Claims. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by such indemnified
party, and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. If, however, the allocation in the first sentence
of this Section 6.6(c) is not permitted by applicable law, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative faults, but also the relative benefits of the
indemnifying party and the indemnified party, as well as any other relevant equitable
considerations. The parties hereto agree that it would not be just and equitable if contributions
pursuant to this Section 6.6(c) were to be determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable considerations referred to in the
preceding sentences of this Section 6.6(c). The amount paid or payable by an indemnified party as
a result of the Claims referred to above shall be deemed to include (subject to the limitations set
forth in Section 6.7) any legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action, proceeding or claim. No
Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. Notwithstanding the foregoing, the Shareholder shall not be liable
to contribute any amount in excess of the dollar amount of the net proceeds
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received by the Shareholder from Shareholder Shares sold by the Shareholder pursuant to such
Registration Statement or Prospectus.
Section 6.7 Indemnification Procedures.
(a) If an indemnified party shall desire to assert any claim for indemnification provided for
under Section 6.6 in respect of, arising out of or involving a Claim against the indemnified party,
such indemnified party shall notify the Company or the Shareholder, as the case may be (the
“Indemnifying Party”), in writing of such Claim, the amount or the estimated amount of
damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive
of the final amount of such Claim), any other remedy sought thereunder, any relevant time
constraints relating thereto and, to the extent practicable, any other material details pertaining
thereto (a “Claim Notice”) promptly after receipt by such indemnified party of written
notice of the Claim; provided, however, that failure to provide a Claim Notice
shall not affect the indemnification obligations provided hereunder except to the extent the
Indemnifying Party shall have been materially prejudiced as a result of such failure. The
indemnified party shall deliver to the Indemnifying Party, promptly after the indemnified party’s
receipt thereof, copies of all notices and documents (including court papers) received by the
indemnified party relating to the Claim; provided, however, that failure to provide
any such copies shall not affect the indemnification obligations provided hereunder except to the
extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.
(b) If a Claim is made against an indemnified party, the Indemnifying Party will be entitled
to participate in the defense thereof and, if it so chooses and acknowledges without reservation
its obligation to indemnify the indemnified party therefor, to assume the defense thereof with
separate counsel selected by the indemnifying party and reasonably satisfactory to the indemnified
party. Should the Indemnifying Party so elect to assume the defense of a Claim, the Indemnifying
Party will not be liable to the indemnified party for legal expenses subsequently incurred by the
indemnified party in connection with the defense thereof, unless the Claim involves potential
conflicts of interest or substantially different defenses for the indemnified party and the
Indemnifying Party. If the Indemnifying Party assumes such defense, the indemnified party shall
have the right to participate in defense thereof and to employ counsel, at its own expense (except
as provided in the immediately preceding sentence), separate from the counsel employed by the
Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel
employed by the indemnified party for any period during which the Indemnifying Party has not
assumed the defense thereof and as otherwise contemplated by the two immediately preceding
sentences. If the Indemnifying Party chooses to defend any Claim, the indemnified party shall
cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and
(upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and
information that are reasonably relevant to such Claim, and the indemnified party shall use
reasonable endeavors to make employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder. Whether or not the
Indemnifying Party shall have assumed the defense of a Claim, the indemnified party shall not admit
any liability with respect to, or settle, compromise or discharge, such Claim without the
Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld or
delayed). The Indemnifying Party may pay, settle or compromise a Claim without the written consent
of the indemnified party, so long as such
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settlement includes (i) an unconditional release of the indemnified party from all liability
in respect of such Claim, (ii) does not subject the indemnified party to any injunctive relief or
other equitable remedy, and (iii) does not include a statement or admission of fault, culpability
or failure to act by or on behalf of any indemnified party.
Section 6.8 Shelf Take-Down.
(a) At any time that a Shelf Registration Statement covering Registrable Shares is effective,
if the Shareholder delivers notice (a “Take-Down Notice”) to the Company stating that it
intends to effect an underwritten offering of all or part of its Registrable Shares included on the
Shelf Registration Statement (a “Shelf Underwritten Offering”), the Company shall amend or
supplement the Shelf Registration Statement or related Prospectus as may be necessary in order to
enable such Registrable Shares to be distributed pursuant to the Shelf Underwritten Offering;
provided, however, that the Shareholder shall not be entitled to deliver an
aggregate of more than three (3) Take-Down Notices in any twelve (12) month period and the
Shareholder may not deliver any Take-Down Notice within thirty (30) days after the effective date
of any Registration Statement of the Company hereunder. For the avoidance of doubt, a Shelf
Underwritten Offering shall count against the limit set forth in Section 6.1(b).
(b) In connection with any Shelf Underwritten Offering, in the event that the managing
underwriter advises the Company and the Shareholder in writing that, in its good faith opinion, the
total number or dollar amount of Registrable Shares requested by the Shareholder to be included
therein exceeds the largest number or dollar amount of Registrable Shares that can be sold in such
offering without adversely affecting the marketability of the offering (including an adverse effect
on the per share offering price), the Company shall include in such registration or prospectus only
such number of Registrable Shares that in the good faith opinion of such underwriter(s) can be sold
in such offering without adversely affecting the marketability of the offering (including an
adverse effect on the per share offering price).
Section 6.9 Rule 144; Rule 144A. The Company covenants that it will use its reasonable endeavors to timely file the reports
required to be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and to take such further action as the Shareholder may
reasonably request, all to the extent required from time to time to enable the Shareholder to sell
Registrable Shares without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 or Rule 144A or Regulation S under the Securities Act; or (ii)
any similar rule or regulation hereafter adopted by the SEC. Upon the request of the Shareholder,
the Company will deliver to the Shareholder a written statement as to whether it has complied with
such requirements and, if not, the specifics thereof.
Section 6.10 Holdback. In consideration for the Company agreeing to its obligations under this Agreement, the
Shareholder agrees, in connection with any underwritten offering made pursuant to a Registration
Statement in which the Shareholder has elected to include Registrable Shares, upon the written
request of the managing underwriter(s) of such offering, not to effect (other than pursuant to such
underwritten offering) any public sale or distribution of Registrable Shares, including any sale
pursuant to Rule 144 or Rule 144A, or make any short sale of, loan, grant any option for the
purchase of, or otherwise Transfer (other than to a
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Permitted Transferee in accordance with Section 5.1(f)(i), any Registrable Shares or any
securities convertible into or exchangeable or exercisable for any other securities of the Company
without the prior written consent of the managing underwriter(s) during the Holdback Period. The
Company agrees that the Shareholder shall only be bound so long as and to the extent that each
other shareholder seeking to exercise registration rights with respect to such offering is
similarly bound; provided that a request under this Section 6.10 shall not be effective
more than once in any twelve (12) month period.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Termination. Except with respect to the obligations set forth in Section 6.6, and Section 6.7, which
shall survive the termination of this Agreement, this Agreement shall terminate and be of no
further force and effect upon the earlier of (a) the later of (i) the tenth anniversary of the
Closing Date; and (ii) the date that is three years after the first date on which the Shareholder
shall cease to Beneficially Own Voting Securities representing at least the Ownership Threshold and
(b) the consummation of a Change of Control with respect to the Company.
Section 7.2 Injunctive Relief. Each party hereto acknowledges that it would be impossible to determine the amount of
damages that would result from any breach of any of the provisions of this Agreement and that the
remedy at law for any breach, or threatened breach, of any of such provisions would likely be
inadequate and, accordingly, agrees that the other party shall, in addition to any other rights or
remedies which it may have, be entitled to such equitable and injunctive relief as may be available
from any court of competent jurisdiction to compel specific performance of, or restrain any party
from violating, any of such provisions. In connection with any action or proceeding for injunctive
relief, each party hereto hereby waives the claim or defense that a remedy at law alone is adequate
and agrees, to the maximum extent permitted by law, to have each provision of this Agreement
specifically enforced against it, without the necessity of posting bond or other security against
it, and consents to the entry of injunctive relief against it enjoining or restraining any breach
or threatened breach of such provisions of this Agreement.
Section 7.3 Assignments. This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Except as contemplated by Section 5.1(f), none
of the parties may directly or indirectly assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of the other party. Any
purported direct or indirect assignment in violation of this Section 7.3 shall be null and void ab
initio.
Section 7.4 Amendments; Waiver. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall
be valid or binding unless set forth in writing and duly executed by (i) the Company, where
enforcement of the amendment, modification, discharge or waiver is sought against the Company; (ii)
the Shareholder, where enforcement of the amendment, modification, discharge or waiver is sought
against the Shareholder; or (iii) the Shareholder Parent, where enforcement of the amendment,
modification, discharge or waiver is
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sought against the Shareholder Parent. Any such waiver shall constitute a waiver only with
respect to the specific matter described in such writing and shall in no way impair the rights of
the party granting such waiver in any other respect or at any other time. The waiver by the
Company or the Shareholder of a breach of or a default under any of the provisions of this
Agreement or the failure to exercise or delay in exercising any right or privilege hereunder, shall
not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of
any of such provisions, rights or privileges hereunder. The rights and remedies herein provided
are cumulative and none is exclusive of any other, or of any rights or remedies that any party may
otherwise have at law or in equity.
Section 7.5 Notices. Any notice, request, instruction or other document to be given hereunder by any party to
the others shall be in writing and shall be deemed given to a party when (i) delivered to the
appropriate address by hand or by nationally recognized overnight courier service; (ii) sent by
facsimile with confirmation of transmission by the transmitting equipment; or (iii) received by the
addressee, if sent by certified mail, return receipt requested, in each case, to the following
addresses or facsimile numbers and marked to the attention of the person (by name or title)
designated below, or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided below:
To the Company:
Alkermes, plc
c/o Alkermes, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: x0 000 000-0000
Fax: x0 000 000-0000
Attention: General Counsel
c/o Alkermes, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: x0 000 000-0000
Fax: x0 000 000-0000
Attention: General Counsel
With copies (which shall not constitute notice) to:
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: x0 000 000-0000
Fax: x0 000 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: x0 000 000-0000
Fax: x0 000 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxx
and:
Xxxxxx Xxx
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxx 0
Xxxxxxx
Telephone: x000 0 000 0000
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxx 0
Xxxxxxx
Telephone: x000 0 000 0000
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Fax: + 000 0 000 0000
Attention: Xxxxxxxxxxx X. X. XxXxxxxxxx
Attention: Xxxxxxxxxxx X. X. XxXxxxxxxx
To the Shareholder and the Shareholder Parent:
Elan Corporation, plc
Xxxxxxxx Xxxxxxxx
Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxx 0
Telephone: x000 0 000 0000
Facsimile: + 353 1 709 4713
Attn.: Company Secretary
Xxxxxxxx Xxxxxxxx
Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxx 0
Telephone: x000 0 000 0000
Facsimile: + 353 1 709 4713
Attn.: Company Secretary
With copies (which shall not constitute notice) to:
Xxxxxx Xxxxxx & Xxxxxxx llp
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: x0 000 000-0000
Facsimile: x0 000 000-0000
Attention: Xxxxxxxxxxx X. Xxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: x0 000 000-0000
Facsimile: x0 000 000-0000
Attention: Xxxxxxxxxxx X. Xxx
and:
A&L Goodbody Solicitors
25/28 International Financial Services Xxxxxx
Xxxxx Xxxx Xxxx
Xxxxxx 0
Xxxxxxx
Telephone: x000 0 000 0000
Fax: + 000 0 000 0000
Attention: Xxxx Xxxxx
25/28 International Financial Services Xxxxxx
Xxxxx Xxxx Xxxx
Xxxxxx 0
Xxxxxxx
Telephone: x000 0 000 0000
Fax: + 000 0 000 0000
Attention: Xxxx Xxxxx
Section 7.6 Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial
by Jury. THIS AGREEMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH IT OR ITS SUBJECT
MATTER OR FORMATION INCLUDING NON-CONTRACTUAL DISPUTES OR CLAIMS SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF IRELAND. Each party hereto irrevocably agrees that the courts of
Ireland are to have exclusive jurisdiction to settle any dispute arising out of or in connection
with this Agreement and, for such purposes, irrevocably submits to the exclusive jurisdiction of
such courts. Any proceeding, suit or action arising out of or in connection with this Agreement
(“Proceedings”) shall therefore be brought in the courts of Ireland. Solely in connection
with claims arising under this Agreement or the transactions that are the subject of this
Agreement, each party irrevocably (i) waives any objection to Proceedings in the courts of Ireland
on the grounds of venue or on the grounds of forum non conveniens and (ii) agrees that service of
process upon such party in any such Proceeding shall be effective if
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notice is given in accordance with Section 7.5. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.7 Interpretation. The table of contents and 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. The parties hereto have participated jointly in the negotiation and drafting of
this Agreement and, in the event that an ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement. In the event of any conflict or inconsistency between the provisions
of this Agreement and the articles of association of the Company, the terms of this agreement shall
prevail.
Section 7.8 Entire Agreement; No Other Representations. Except for the Merger Agreement and the articles of association of the Company, this
Agreement constitutes the entire agreement, and supersedes all prior agreements, understandings
representations and warranties both written and oral, between the parties with respect to the
subject matter hereof.
Section 7.9 No Third-Party Beneficiaries. Except as explicitly provided for in Section 6.6 and Section 6.7, this Agreement is not
intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.
Section 7.10 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Agreement, or the application thereof to any Person or
any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and
purpose of such invalid or unenforceable provision; and (b) the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity
or enforceability of such provision, or the application thereof, in any other jurisdiction.
Section 7.11 Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts shall together constitute the same
agreement.
Section 7.12 Effectiveness. This Agreement shall become effective at and as of the Closing.
Section 7.13 Relationship of the Parties. No provision of this Agreement creates a partnership between any of the parties or makes a
party the agent of any other party for any purpose. A party has no authority or power to bind, to
contract in the name of, or to create a liability for, another party in any way or for any purpose.
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Section 7.14 Accounting Matters. In order to allow the Shareholder Parent to make appropriate determinations with respect to
the accounting for its investment in the Voting Securities of the Company under the equity method
of accounting (determined in accordance with generally accepted accounting principles in the United
States (“U.S. GAAP”) as applicable to the Shareholder Parent), the Company will use
reasonable endeavors (i) to provide all support reasonably requested by the Shareholder Parent
related to determining the purchase price accounting in accordance with the equity method of
accounting determined in accordance with U.S. GAAP, as applicable to the Shareholder Parent; (ii)
to cooperate, and use reasonable endeavors to cause the Company’s independent certified public
accountants to cooperate, with the Shareholder Parent to the extent reasonably requested by the
Shareholder Parent in the preparation of the Shareholder Parent’s filings, including periodic
filings, public earnings releases or other press releases, (collectively the “Parent Public
Filings”); (iii) provide to the Shareholder Parent all information that the Shareholder Parent
reasonably requests in connection with any Parent Public Filings or that, in the reasonable
judgment of Shareholder Parent or its legal counsel, is required to be disclosed or incorporated by
reference therein under any applicable law; (iv) provide such information to enable the Shareholder
Parent to prepare, print and release all Parent Public Filings on a timely basis and (v) use its
reasonable endeavors to cause the Company’s independent certified public accountants to consent to
any reference to them as experts in any Parent Public Filings required under applicable law.
Section 7.15 Further Assurances Upon the terms and subject to the conditions set forth in this Agreement, from and after the
Closing Date, the parties hereto shall each use reasonable endeavors to promptly (i) take, or to
cause to be taken, all actions, and to do, or to cause to be done, and to assist and cooperate with
the other parties in doing, all things necessary, proper or advisable under applicable law or
otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii)
obtain from any governmental or regulatory authority or third party any and all necessary
clearances, waivers, consents, authorizations, approvals, permits or orders required to be obtained
in connection with the performance of this Agreement and the consummation of the transactions
contemplated hereby; and (iii) execute and deliver any additional instruments necessary to
consummate the transactions contemplated by this Agreement.
Section 7.16 Rights and Obligations of Parties. The obligations of (i) the Company, on the one hand, to the Shareholder and the Shareholder
Parent, on the other hand, and (ii) the Shareholder and the Shareholder Parent, on the one hand, to
the Company, on the other hand, are owed to them as separate and independent obligations of and
each party will have the right to protect and enforce its rights under this Agreement without
joining any other party in any proceedings. The Shareholder and the Shareholder Parent shall be
jointly and severally liable for all costs, fees, expenses, indemnities and any other liabilities
of either of them under this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their
respective authorized officers as of the date first written above.
| ALKERMES, PLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ELAN CORPORATION, PLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ELAN SCIENCE THREE LIMITED |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signature Page to Shareholder’s Agreement]
