THOUSAND OAKS,
Calif., Dec. 12,
2022 /PRNewswire/ -- NOT FOR RELEASE,
PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, IN, INTO OR FROM
ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE
RELEVANT LAWS OR REGULATIONS OF SUCH JURISDICTION
THIS ANNOUNCEMENT IS BEING MADE PURSUANT TO RULE 2.7 OF
THE IRISH TAKEOVER RULES
FOR IMMEDIATE RELEASE
RECOMMENDED CASH OFFER
for
HORIZON THERAPEUTICS PLC
by
Pillartree Limited, a newly formed private
limited company wholly owned by Amgen Inc.
to be implemented by way of a scheme of
arrangement under Chapter 1 of Part 9 of the Companies Act
2014
Summary
- The board of directors of Horizon Therapeutics plc (the
"Company" or "Horizon") and the board of directors of
Amgen Inc. ("Amgen") are pleased to announce that they have
reached agreement on the terms of a cash offer for the Company by
Pillartree Limited ("Acquirer Sub"), a newly formed private
limited company wholly owned by Amgen, which is unanimously
recommended by the Company Board and pursuant to which Acquirer Sub
will acquire the entire issued and to be issued ordinary share
capital of the Company. Under the terms of the Acquisition, each
Company Shareholder at the Scheme Record Time will be entitled to
receive:
$116.50 for each Company Share
in cash
- The Acquisition represents:
-
- a premium of approximately 47.9% to the closing price of
$78.76 per Company Share on
November 29, 2022 (being the last
closing price per Company Share prior to the Company's issuance of
an announcement of a possible offer under Rule 2.4 of the Irish
Takeover Rules); and
- a premium of approximately 19.7% to the closing price of
$97.29 per Company Share on
December 9, 2022.
- The Acquisition values the entire issued and to be issued
ordinary share capital of the Company at approximately $27.8 billion on a fully diluted basis and
implies an enterprise value of approximately $28.3 billion.
- Amgen has entered into a Bridge Credit Agreement, dated
December 12, 2022, for an aggregate
amount of $28.5 billion, by and among
Amgen, Citibank N.A., as administrative agent, Bank of America,
N.A., as syndication agent, and Citibank, N.A. and Bank of America,
N.A. as lead arrangers and book runners, and the other banks from
time to time party thereto to finance, together with Amgen's own
cash resources, the Acquisition. Further information on the
financing of the Acquisition will be set out in the Proxy Statement
(which will include the Scheme Document).
- Commenting on today's announcement, Tim
Walbert, chairman, president and chief executive officer of
the Company said:
"In nearly 15 years, we have built one of the fastest growing
and most respected companies in the biotechnology industry from the
ground up. We have accomplished a tremendous amount for patients,
their families and our customers, and created significant value for
shareholders. These accomplishments are all rooted in our
employees' deep commitment, dedication and personal passion for
those impacted by rare, autoimmune and severe inflammatory
diseases. Amgen is aligned with that commitment and passion and
will continue to maximise the value of the current portfolio and
pipeline and accelerate the ability to reach more patients
globally."
- Commenting on today's announcement, Robert A. Bradway, chairman and chief executive
officer of Amgen said:
"The acquisition of Horizon is a compelling opportunity for
Amgen and one that is consistent with our strategy of delivering
long-term growth by providing innovative medicines that address the
needs of patients who suffer from serious diseases. Amgen's decades
of leadership in inflammation and nephrology, combined with our
global presence and world-class biologics capabilities, will enable
us to reach many more patients with first-in-class medicines like
TEPEZZA, KRYSTEXXA and UPLIZNA. Additionally, the potential new
medicines in Horizon's pipeline strongly complement our own R&D
portfolio. The acquisition of Horizon will drive growth in Amgen's
revenue and non-GAAP EPS and is expected to be accretive from
2024."
Amgen Background to and Reasons for the Acquisition
Amgen believes that there is a compelling strategic and
financial rationale for undertaking the Acquisition, which is
expected to deliver the following benefits:
- Strengthens Amgen's portfolio of first-in-class / best-in-class
innovative therapeutics by adding a complementary portfolio of
medicines from Horizon that address the needs of patients suffering
from rare diseases;
- Capitalises on Amgen's 20-year commercial and medical legacy in
inflammation and nephrology and its global scale to enhance the
growth potential of Horizon's portfolio;
- Utilises Amgen's industry-leading research and development,
process development and global manufacturing expertise in biologic
medicines for the benefit of Horizon's approved medicines and
potential new medicines;
- Generates robust cash flow (approximately $10 billion combined over twelve months through
Q3 2022)[1] to support capital allocation priorities,
including ongoing investment in innovation and continued dividend
growth while sustaining a commitment to an investment grade credit
rating;
- Accelerates revenue growth and is expected to be accretive to
non-GAAP earnings per share from 2024; and
- Increases efficiency for the Combined Group, leading to an
estimated annual pre-tax cost reduction of at least $500 million by the end of the third fiscal year
following Completion.
Company Board Recommendation
- Having taken into account the relevant factors and applicable
risks, the Company Board, which has been so advised by Morgan
Stanley, which as financial advisor to the Company Board has
rendered a fairness opinion, considers the terms of the Acquisition
as set out in this Announcement to be fair and reasonable. In
providing its advice to the Company Board, Morgan Stanley has taken
into account the commercial assessments of the Company Directors.
The Company Board has unanimously determined that the Transaction
Agreement and the Transactions, including the Scheme, are advisable
for, fair to and in the best interests of, the Company
Shareholders.
- Accordingly, the Company Board unanimously recommends that
Company Shareholders vote in favour of the Scheme Meeting
Resolution and the Required EGM Resolutions, or, if the Acquisition
is implemented by a Takeover Offer, accept or procure acceptance of
such Takeover Offer.
Timeline and Conditions
- It is agreed that the Acquisition will be implemented by way of
an Irish High Court-sanctioned scheme of arrangement under Chapter
1 of Part 9 of the Irish Companies Act (although Acquirer Sub
reserves the right to effect the Acquisition by way of a Takeover
Offer, subject to the provisions of the Transaction Agreement and
the Irish Takeover Rules and with the consent of the Irish Takeover
Panel).
- The Acquisition will be subject to the satisfaction or waiver
(as applicable) of the Conditions, which are set out in full in
Appendix 3 (Conditions of the Acquisition and the Scheme) to
this Announcement, including, in summary:
-
- the requisite approval by Company Shareholders of the Scheme
Meeting Resolution and the Required EGM Resolutions;
- the sanction of the Scheme by the Irish High Court; and
- the receipt of required antitrust clearances in the United States, Austria and Germany and the receipt of required foreign
investment clearances in France,
Germany, Denmark and Italy.
- It is expected that the Scheme Document, containing further
information about the Acquisition and notices of the Scheme Meeting
and the EGM, the expected timetable for Completion and action to be
taken by Company Shareholders, will be published as soon as
practicable. It is anticipated that the Scheme will, subject to
obtaining the necessary regulatory approvals, be declared effective
in the first half of 2023. An expected timetable of key events
relating to the Acquisition will be provided in the Scheme
Document.
[1] For the twelve months through Q3 2022, Amgen GAAP
operating cash flow of $9.88 billion
less Amgen capital expenditures of $883
million plus Horizon GAAP operating cash flow of
$1.37 billion less Horizon capital
expenditures of $56 million =
~$10 billion
Advisors
- The Company's financial advisors in respect of the Acquisition
are Morgan Stanley and J.P. Morgan. The Company's legal advisors
are Cooley LLP and Matheson LLP.
- Amgen's lead financial advisor in respect of the Acquisition is
PJT Partners and its financial advisor is Citigroup. Amgen's legal
advisors are Sullivan & Cromwell LLP and William Fry LLP.
About the Company Group
- The Company is a public limited company registered in
Ireland whose shares are admitted
to trading on Nasdaq under the ticker "HZNP".
- The Company is a global biotechnology company headquartered in
Dublin, Ireland and is focused on
the discovery, development and commercialization of medicines that
address critical needs for people impacted by rare, autoimmune and
severe inflammatory diseases. The Company has 12 marketed medicines
and a pipeline with more than 20 development programs. The Company
has offices or a presence across four continents and more than
2,000 employees.
- For more information about the Company Group, see
www.horizontherapeutics.com.
About Amgen and Acquirer Sub
- Acquirer Sub is a private limited company incorporated in
Ireland established for the sole
purpose of implementing the Acquisition and is a wholly owned
subsidiary of Amgen. As of the date of this Announcement, the
entire issued ordinary share capital of Acquirer Sub is owned by
Amgen.
- Amgen is a highly focused biotechnology company committed to
unlocking the potential of biology for patients suffering from
serious illnesses by discovering, developing, manufacturing and
delivering innovative human therapeutics. This approach begins by
using tools like advanced human genetics to unravel the
complexities of disease and understand the fundamentals of human
biology. Amgen focuses on areas of high unmet medical need and
leverages its expertise to strive for solutions that improve health
outcomes and dramatically improve people's lives. A biotechnology
pioneer since 1980, Amgen has grown to be one of the world's
leading independent biotechnology companies. Amgen is one of the 30
companies that comprise the Dow Jones Industrial Average and is
also part of the Nasdaq-100 index.
- For more information about Amgen, see www.amgen.com.
Enquiries
Company
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Investors: Tina
Ventura
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Tel: +1 224 383
3344
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Media: Geoff
Curtis
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Tel: +1 224 383
3333
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Morgan Stanley
(Joint Financial Advisor to the Company)
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Julie
Rozenblyum
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Tel: +1 212 761
4000
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Joe Modisett
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Tedd Smith
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David
Kitterick
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Tel: +44 20 7425
8000
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J.P. Morgan (Joint
Financial Advisor to the Company)
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Dwayne
Lysaght
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Tel: +44 (0) 20 7742
4000
|
Jeremy
Meilman
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Tel: +1 (212)
270-6000
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Ben
Carpenter
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Tel: +1 (212)
270-6000
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Steve Frank
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Tel: +1 (212)
270-6000
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Amgen
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Investors: Arvind
Sood
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Tel: +1 805 447
1060
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Media: Jessica
Akopyan
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Tel: +1 805 440
5721
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PJT Partners (Lead
Financial Advisor to Amgen)
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Paul Taubman
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Tel: +1 212 364
7800
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Tom Davidson
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Tel: +1 212 364
7800
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Basil
Geoghegan
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Tel: +44 (0)20 3650
1100
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Daniel Lee
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Tel: +1 212 364
7800
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Kush Nanjee
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Tel: +44 (0)20 3650
1100
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Citigroup
(Financial Advisor to Amgen)
|
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Torrey
Browder
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Tel: +44 20 7986
4000
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Sumit
Khedekar
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Tel: +44 20 7986
4000
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Rob Way
|
Tel: +44 20 7986
4000
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Sian Evans
|
Tel: +44 20 7986
4000
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Marc
Banziger
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Tel: +44 20 7986
4000
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Edelman (PR Advisor
to Amgen)
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Lex Suvanto
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Tel: + 1 212 768
0550
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Shannon
Susko
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Tel: + 1 212 768
0550
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Jamaal
Mobley
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Tel: + 1 212 768
0550
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Joe Carmody
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Tel: +353 1 592
1330
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Piaras Kelly
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Tel: +353 1 592
1330
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Feargal
Purcell
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Tel: +353 1 592
1330
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WEBCAST INFORMATION
Amgen will host a webcast call for the investment community at
5:00 a.m. Pacific Standard Time on
December 12, 2022. Robert A. Bradway, chairman and chief executive
officer, along with other members of Amgen's management team, will
present an overview of Amgen's acquisition of Horizon.
The webcast will be broadcast over the internet simultaneously
and will be available to members of the news media, investors and
the general public.
The webcast, as with other selected presentations regarding
developments in Amgen's business given by Amgen management at
certain investor and medical conferences, can be found on Amgen's
website, www.amgen.com, under "Investors". Information regarding
presentation times, webcast availability and webcast links are
noted on Amgen's Investor Relations Events Calendar. The webcast
will be archived and available for replay for at least 90 days
after the event.
NO OFFER OR SOLICITATION
This Announcement is for information purposes only and is not
intended to and does not constitute, or form part of, an offer,
invitation or the solicitation of an offer or invitation to
purchase, otherwise acquire, subscribe for, sell or otherwise
dispose of any securities, or the solicitation of any vote or
approval in any jurisdiction, pursuant to the Acquisition or
otherwise, nor shall there be any sale, issuance or transfer of
securities in any jurisdiction in contravention of applicable
Law.
The Acquisition will be implemented by means of an Irish High
Court-sanctioned scheme of arrangement on the terms provided for in
the Scheme Document (or, if the Acquisition is implemented by way
of a Takeover Offer, the Takeover Offer Document), which will
contain the full terms and conditions of the Acquisition, including
details of how Company Shareholders may vote in respect of the
Acquisition. Any decision in respect of, or other response to, the
Acquisition, should be made only on the basis of the information
contained in the Scheme Document (or if the Acquisition is
implemented by way of a Takeover Offer, the Takeover Offer
Document).
IMPORTANT ADDITIONAL INFORMATION WILL BE FILED WITH THE
SEC
In connection with the Acquisition, the Company will file with
the SEC a Proxy Statement (which will include the Scheme Document).
The Proxy Statement will be mailed to Company Shareholders as of
the record date to be established for voting at the Scheme Meeting
or EGM. This Announcement is not a substitute for the Proxy
Statement or any other document that the Company may file with the
SEC or send to its shareholders in connection with the Acquisition.
BEFORE MAKING ANY VOTING DECISION, HOLDERS OF COMPANY SHARES ARE
URGED TO READ THE PROXY STATEMENT (INCLUDING THE SCHEME DOCUMENT)
ANY AMENDMENTS OR SUPPLEMENTS THERETO AND OTHER RELEVANT DOCUMENTS
FILED OR TO BE FILED WITH THE SEC IN CONNECTION WITH THE
ACQUISITION, INCLUDING ANY DOCUMENTS INCORPORATED BY REFERENCE
THEREIN, CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE
BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE
ACQUISITION, THE PARTIES TO THE SCHEME AND RELATED MATTERS.
Any vote in respect of the Scheme Meeting Resolution and the EGM
Resolutions to approve the Acquisition, the Scheme or related
matters, or other responses in relation to the Acquisition, should
be made only on the basis of the information contained in the Proxy
Statement (including the Scheme Document).
The Proxy Statement, if and when filed, as well as the Company's
other public filings with the SEC, may be obtained without charge
at the SEC's website at www.sec.gov and at the Company's website at
www.horizontherapeutics.com. Company Shareholders and investors
will also be able to obtain, without charge, a copy of the Proxy
Statement (including the Scheme Document) and other relevant
documents (when available) by directing a written request to the
Company, Attn: Investor Relations, 70 St. Stephen's Green,
Dublin 2, D02 E2X4, Ireland, or by contacting Tina Ventura, Investor Relations, by email to
ir@horizontherapeutics.com.
PARTICIPANTS IN THE SOLICITATION
The Company and certain of its directors, executive officers and
employees may be deemed to be participants in the solicitation of
proxies from Company Shareholders in connection with the
Acquisition and any other matters to be voted on at the Scheme
Meeting or the EGM. Information about the directors and executive
officers of the Company, including a description of their direct or
indirect interests, by security holdings or otherwise, is set forth
in the Company's definitive proxy statement on Schedule 14A for its
2022 annual general meeting of shareholders, dated and filed with
the SEC on March 17, 2022. Other
information regarding the persons who may, under the rules of the
SEC, be deemed to be participants in the solicitation of Company
Shareholders, including a description of their direct or indirect
interests, by security holdings or otherwise, will be set forth in
the Proxy Statement (which will contain the Scheme Document) and
other relevant materials to be filed with the SEC in connection
with the Acquisition. You may obtain free copies of these documents
using the sources indicated above.
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
This Announcement contains certain statements about the Company
and Amgen that are or may be forward-looking statements which
include, but are not limited to, statements regarding expected
timing, completion and effects of the Acquisition. These
forward-looking statements are subject to the safe harbor
provisions under the U.S. Private Securities Litigation Reform Act
of 1995. All statements other than statements of historical facts
included in this Announcement may be forward-looking statements.
Without limitation, forward-looking statements often include words
such as "expect," "anticipate," "outlook," "could," "target,"
"project," "intend," "plan," "believe," "seek," "estimate,"
"should," "may," "assume" and "continue" as well as variations of
such words and similar expressions are intended to identify such
forward-looking statements. The Company's and Amgen's expectations
and beliefs regarding these matters may not materialise. Actual
outcomes and results may differ materially from those contemplated
by these forward-looking statements as a result of uncertainties,
risks, and changes in circumstances, including but not limited to
risks and uncertainties related to: the ability of the Parties to
consummate the Acquisition in a timely manner or at all; the
satisfaction (or waiver) of conditions to the consummation of the
Acquisition, including with respect to the approval of Company
Shareholders and required regulatory approvals; potential delays in
consummating the Acquisition; the ability of the Company and Amgen
to timely and successfully achieve the anticipated strategic
benefits, synergies or opportunities expected as a result of the
Acquisition; the successful integration of the Company into Amgen
subsequent to Completion and the timing of such integration; the
impact of changes in global, political, economic, business,
competitive, market and regulatory forces; the impact of health
pandemics, including the COVID-19 pandemic, on the Company's or
Amgen's respective businesses; the occurrence of any event, change
or other circumstance or condition that could give rise to the
termination of the Transaction Agreement; adverse effects on the
market price of the Company's or
Amgen's securities and on the Company's or Amgen's operating
results because of a failure to complete the Acquisition; the
effect of the announcement or pendency of the Acquisition on the
Company's or Amgen's business relationships, operating results and
business generally; costs related to the Acquisition; and the
outcome of any legal proceedings that may be instituted against the
Company, Amgen, Acquirer Sub or any of their respective directors
or officers related to the Transaction Agreement or the
Acquisition. Additional risks and uncertainties that could cause
actual outcomes and results to differ materially from those
contemplated by the forward-looking statements are included under
the caption "Risk Factors" and elsewhere in the Company's most
recent filings with the SEC, including its Quarterly Report on Form
10-Q for the quarter ended September 30,
2022, and Amgen's most recent filings with the SEC,
including its Quarterly Report on Form 10-Q for the quarter ended
September 30, 2022, and any
subsequent reports on Form 10-K, Form 10-Q or Form 8-K filed with
the SEC by the Company or Amgen from time to time and available at
www.sec.gov. These documents can be accessed on the Company's web
page at
https://ir.horizontherapeutics.com/financial-information/sec-filings
or on Amgen's web page at
https://investors.amgen.com/financials/sec-filings.
The forward-looking statements included in this Announcement are
made only as of the date hereof. Neither the Company nor Amgen
assumes any obligation to, and neither the Company nor Amgen
intends to, update these forward-looking statements, except as
required by applicable Law.
RESPONSIBILITY STATEMENT REQUIRED BY THE IRISH TAKEOVER
RULES
The Company Directors accept responsibility for the information
contained in this Announcement relating to the Company, the Company
Group and the Company Directors and members of their immediate
families, related trusts and persons connected with them and for
the Company Amgen Statements (as defined below), except for the
statements made by Amgen in respect of the Company (the "Amgen
Company Statements"). To the best of the knowledge and belief
of the Company Directors (who have taken all reasonable care to
ensure that such is the case), the information contained in this
Announcement for which they accept responsibility is in accordance
with the facts and does not omit anything likely to affect the
import of such information.
The Amgen Directors and Acquirer Sub Directors accept
responsibility for the information contained in this Announcement
other than that relating to the Company, the Company Group and the
Company Directors and members of their immediate families, related
trusts and persons connected with them but including the Amgen
Company Statements (for which the Amgen Directors and the Acquirer
Sub Directors accept responsibility), and other than the statements
made by the Company in respect of Amgen (the "Company Amgen
Statements"). To the best of the knowledge and belief of the
Amgen Directors (who have taken all reasonable care to ensure such
is the case), the information contained in this Announcement for
which they accept responsibility is in accordance with the facts
and does not omit anything likely to affect the import of such
information.
IMPORTANT NOTICES RELATING TO FINANCIAL ADVISORS
Morgan Stanley & Co. LLC, acting through its affiliate
Morgan Stanley & Co. International plc (together, "Morgan
Stanley"), which is authorised by the Prudential Regulation
Authority and regulated by the Financial Conduct Authority in the
United Kingdom, is acting
exclusively for the Company as financial advisor and for no one
else in relation to the matters referred to in this Announcement.
In connection with such matters, Morgan Stanley and its directors,
officers, employees and agents will not regard any other person as
its client, nor will it be responsible to anyone other than the
Company for providing the protections afforded to their clients or
for providing advice in connection with the matters described in
this Announcement or any matter referred to herein.
J.P. Morgan Securities LLC ("J.P. Morgan"), which is a
registered broker dealer with the SEC, is acting as financial
advisor to the Company in connection with the Acquisition. In
connection with the Acquisition, J.P. Morgan and its directors,
officers, employees and agents will not regard any other person as
its client, nor will it be responsible to anyone other than the
Company for providing the protections afforded to clients of J.P.
Morgan or for giving advice in connection with the Acquisition or
any matter referred to herein.
PJT Partners, which is a registered broker dealer with the SEC,
is acting exclusively for Amgen and for no-one else in connection
with the matters referred to in this Announcement and will not be
responsible to anyone other than Amgen for providing the
protections afforded to clients of PJT Partners nor for providing
advice in relation to the matters referred to in this Announcement.
Neither PJT Partners nor any of its subsidiaries, branches or
affiliates owes or accepts any duty, liability or responsibility
whatsoever (whether direct or indirect, whether in contract, in
tort, under statute or otherwise) to any person who is not a client
of PJT Partners in connection with this Announcement, any statement
contained herein or otherwise.
Citigroup, which is a registered broker-dealer regulated by the
SEC, is acting exclusively for Amgen and for no one else in
connection with the Acquisition and other matters described in this
announcement, and will not be responsible to anyone other than
Amgen for providing the protections afforded to clients of
Citigroup nor for providing advice in connection with the
Acquisition or any other matters referred to in this announcement.
Neither Citigroup nor any of its affiliates, directors or employees
owes or accepts any duty, liability or responsibility whatsoever
(whether direct or indirect, consequential, whether in contract, in
tort, under statute or otherwise) to any person who is not a client
of Citigroup in connection with this announcement, any statement
contained herein, the Acquisition or otherwise.
DISCLOSURE REQUIREMENTS OF THE IRISH TAKEOVER RULES
Under the provisions of Rule 8.3(a) of the Irish Takeover Rules,
any person who is 'interested' in 1% or more of any class of
'relevant securities' of the Company must make an 'opening position
disclosure' following the commencement of the 'offer period'. An
'opening position disclosure' must contain the details contained in
Rule 8.6(a) of the Irish Takeover Rules, including, among other
things, details of the person's 'interests' and 'short positions'
in any 'relevant securities' of the Company. An 'opening position
disclosure' by a person to whom Rule 8.3(a) applies must be made by
no later than 3:30 p.m. (E.T.) on the
day falling ten 'business days' following the commencement of the
'offer period'. Relevant persons who deal in any 'relevant
securities' prior to the deadline for making an 'opening position
disclosure' must instead make a 'dealing' disclosure as described
below.
Under the provisions of Rule 8.3(b) of the Irish Takeover Rules,
if any person is, or becomes, 'interested' in 1% or more of any
class of 'relevant securities' of the Company, that person must
publicly disclose all 'dealings' in any 'relevant securities' of
the Company during the 'offer period', by not later than
3:30 p.m. (E.T.) on the 'business
day' following the date of the relevant transaction.
If two or more persons co-operate on the basis of any agreement
either express or tacit, either oral or written, to acquire an
'interest' in 'relevant securities' of the Company or any
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3 of the Irish Takeover Rules.
In addition, each of the Company and any offeror must make an
'opening position disclosure' by no later 12:00 noon (E.T.) on the
date falling ten 'business days' following the commencement of the
'offer period' or the announcement that first identifies a
securities exchange offeror, as applicable, and disclose details of
any 'dealings' by it or any person 'acting in concert' with it in
'relevant securities' during the 'offer period', by no later than
12:00 noon (E.T.) on the business day following the date of the
transaction (see Rules 8.1, 8.2 and 8.4).
A disclosure table, giving details of the companies in whose
'relevant securities' 'opening position' and 'dealings' should be
disclosed can be found on the Irish Takeover Panel's website at
www.irishtakeoverpanel.ie.
'Interests' in securities arise, in summary, when a person has
long economic exposure, whether conditional or absolute, to changes
in the price of securities. In particular, a person will be treated
as having an 'interest' by virtue of the ownership or control of
securities, or by virtue of any option in respect of, or derivative
referenced to, securities.
Terms in quotation marks are defined in the Irish Takeover
Rules, which can be found on the Irish Takeover Panel's website. If
you are in any doubt as to whether or not you are required to
disclose an 'opening position' or 'dealing' under Rule 8, please
consult the Irish Takeover Panel's website at
www.irishtakeoverpanel.ie or contact the Irish Takeover Panel on
telephone number +353 1 678 9020.
NO PROFIT FORECAST /
QUANTIFIED FINANCIAL BENEFIT STATEMENT
/ ASSET VALUATIONS
No statement in this Announcement is intended to constitute a
profit forecast or quantified financial benefit statement for any
period, nor should any statements be interpreted to mean that
earnings or earnings per share will necessarily be greater or
lesser than those for the relevant preceding financial periods for
Amgen or the Company. No statement in this Announcement constitutes
an asset valuation.
PUBLICATION ON WEBSITE
In accordance with Rule 26.1 of the Irish Takeover Rules, a copy
of this Announcement will be available on the Company's website at
www.horizontherapeutics.com and Amgen's website at www.amgen.com by
no later than 12:00 noon (E.T.) on the business day following this
Announcement. Neither the content of any such website nor the
content of any other website accessible from hyperlinks on such
website is incorporated into, or forms part of, this
Announcement.
REQUESTING HARD COPY INFORMATION
Any Company Shareholder may request a copy of this Announcement
and / or any information incorporated by reference into this
Announcement in hard copy form by writing to the Company, Attn:
Investor Relations, 70 St. Stephen's Green, Dublin 2, D02 E2X4, Ireland or by contacting Tina Ventura, Investor Relations, via email at
ir@horizontherapeutics.com. Any written requests must include the
identity of the Company Shareholder and any hard copy documents
will be posted to the address of the Company Shareholder provided
in the written request. If you have received this Announcement in
electronic form, a hard copy of this Announcement and / or any
document or information incorporated by reference into this
Announcement will not be provided unless such a request is
made.
RIGHT TO SWITCH TO A TAKEOVER OFFER
Amgen reserves the right to elect to implement the Acquisition
by way of a Takeover Offer for the entire issued and to be issued
ordinary share capital of the Company as an alternative to the
Scheme, subject to the provisions of the Irish Takeover Rules and
the Transaction Agreement and with the Irish Takeover Panel's
consent whether or not the Scheme Document has been posted. In such
event, the Acquisition would be implemented on the same terms
(subject to appropriate amendments), so far as are applicable, as
those which would apply to the Scheme and subject to the amendments
referred to in Appendix 3 (Conditions of the Acquisition and the
Scheme) to this Announcement and in the Transaction
Agreement.
If Amgen exercises its right to implement the Acquisition by way
of a Takeover Offer as an alternative to the Scheme, subject to the
provisions of the Irish Takeover Rules and the Transaction
Agreement and with the Irish Takeover Panel's consent, such offer
would be made in compliance with applicable U.S. Laws and
regulations, including the registration requirements of the U.S.
Securities Act and the tender offer rules under the U.S. Exchange
Act and any applicable exemptions provided thereunder.
ROUNDING
Certain figures included in this Announcement have been
subjected to rounding adjustments. Accordingly, any figures shown
for the same category presented in different tables may vary
slightly and figures shown as totals in certain tables may not be
an arithmetic aggregation of the figures that precede them.
OVERSEAS JURISDICTIONS
The release, publication or distribution of this Announcement in
or into jurisdictions other than Ireland and the
United States may be restricted by Law and therefore any
persons who are subject to the Law of any jurisdiction other than
Ireland and the United States should inform themselves
about, and observe, any applicable legal or regulatory
requirements. In particular the ability of persons who are not
resident in Ireland or
the United States, to vote their
Company Shares with respect to the Scheme at the Scheme Meeting, or
to appoint another person as proxy to vote at the Scheme Meeting on
their behalf, may be affected by the Laws of the relevant
jurisdictions in which they are located. Any failure to comply with
the applicable legal or regulatory requirements may constitute a
violation of the Laws of any such jurisdiction. To the fullest
extent permitted by applicable Law, the Company and Amgen and
persons involved in the Acquisition disclaim any responsibility or
liability for the violation of such restrictions by any person.
This Announcement has been prepared for the purpose of complying
with the Laws of Ireland and the
Irish Takeover Rules and the information disclosed may not be the
same as that which would have been disclosed if this Announcement
had been prepared in accordance with the Laws of jurisdictions
outside of Ireland.
Unless otherwise determined by Amgen or required by the Irish
Takeover Rules, and permitted by applicable Law and regulation, the
Acquisition will not be made available directly or indirectly, in,
into or from any Restricted Jurisdiction and no person may vote in
favour of the Acquisition by any use, means, instrumentality or
facilities from within a Restricted Jurisdiction or any other
jurisdiction if to do so would constitute a violation of the Laws
of that jurisdiction.
Copies of this Announcement and any formal documentation
relating to the Acquisition will not be and must not be, directly
or indirectly, mailed or otherwise forwarded, distributed or sent
in, into or from any Restricted Jurisdiction or any jurisdiction
where to do so would violate the Laws of that jurisdiction and
persons receiving such documents (including custodians, nominees
and trustees) must not mail or otherwise forward, distribute or
send them in or into or from any Restricted Jurisdiction. Doing so
may render invalid any related purported vote in respect of the
Acquisition. If the Acquisition is implemented by way of a Takeover
Offer (unless otherwise permitted by applicable Law or regulation),
the Takeover Offer may not be made, directly or indirectly, in or
into or by use of the mails or any other means or instrumentality
or facilities (including, without limitation, facsimile, email or
other electronic transmission, telex or telephone) of interstate or
foreign commerce of, or any facility of a national, state or other
securities exchange of any Restricted Jurisdiction and the Takeover
Offer will not be capable of acceptance by any such use, means,
instrumentality or facilities from within any Restricted
Jurisdiction or any other jurisdiction if to do so would constitute
a violation of the Laws of that jurisdiction.
Further details in relation to overseas shareholders will be
contained in the Proxy Statement (which will include the Scheme
Document).
GENERAL
This summary should be read in conjunction with, and is subject
to, the full text of this Announcement (including its
Appendices).
The Acquisition is subject to, inter alia, the terms and
conditions of the Transaction Agreement and the terms and the
satisfaction or waiver (as applicable) of the Conditions set out in
Appendix 3 (Conditions of the Acquisition and the Scheme) to
this Announcement. The Acquisition is also subject to the full
terms and conditions which will be set out in the Scheme
Document.
Appendix 1 (Sources and Bases of Information) contains
further details of the sources of information and bases of
calculations set out in this Announcement; Appendix 2
(Definitions) contains definitions of certain expressions
used in this Announcement; Appendix 3 (Conditions of the
Acquisition and the Scheme) contains the Conditions of the
Acquisition and the Scheme; and Appendix 4 (Transaction
Agreement) appends the Transaction Agreement.
The financial information included in this Announcement and to
be included in the Scheme Document has or will be prepared in
accordance with generally accepted accounting principles in
the United States. The following
non-GAAP financial measures have been included in this Announcement
in relation to Amgen and the Combined Group:
- "free cash flow", which is computed by subtracting capital
expenditures from operating cash flow, each as determined in
accordance with GAAP; and
- "non-GAAP EPS", which is computed by taking non-GAAP net income
and dividing it by the number of weighted-average shares of
Amgen.
These non-GAAP financial measures are in addition to, not a
substitute for, or superior to, measures of financial performance
prepared in accordance with GAAP.
Be aware that addresses, electronic addresses and certain other
information provided by Company Shareholders, holders of shares in
Amgen, persons with information rights and other relevant persons
for the receipt of communications from the Company, and / or Amgen
may be exchanged between the Parties as required by the Irish
Takeover Rules and applicable Law.
Any response in relation to the Acquisition should be made only
on the basis of the information contained in the Scheme Document
and the Proxy Statement or any document by which the Acquisition
and the Scheme are made. Company Shareholders are advised to read
carefully the formal documentation in relation to the Acquisition,
including the Scheme Document once the Proxy Statement has been
sent.
The Transaction Agreement contains representations and
warranties made by and to the parties thereto as of specific dates.
The statements embodied in those representations and warranties
were made for purposes of the contract between the parties and may
be subject to qualifications and limitations agreed by the parties
in connection with negotiating the terms of that contract. In
addition, certain representations and warranties were made as of a
specified date, may be subject to a contractual standard of
materiality different from those generally applicable to investors,
or may have been used for the purpose of allocating risk between
the parties rather than establishing matters as facts.
If you are in any doubt about the contents of this Announcement
or the action you should take, you are recommended to seek your own
independent financial advice immediately from your appropriately
authorised independent financial advisor.
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR
IN PART, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD
CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF SUCH
JURISDICTION
THIS ANNOUNCEMENT IS BEING MADE PURSUANT TO RULE 2.7 OF
THE IRISH TAKEOVER RULES
FOR IMMEDIATE RELEASE
December 12,
2022
RECOMMENDED CASH OFFER
for
HORIZON THERAPEUTICS PLC
by
Pillartree Limited, a newly formed private
limited company wholly owned by Amgen Inc. to be implemented by way
of a scheme of arrangement under Chapter 1 of Part 9 of the
Companies Act 2014
1. Introduction
The board of directors of Horizon Therapeutics plc (the
"Company" or "Horizon") and the board of directors of
Amgen Inc. ("Amgen") are pleased to announce that they have
reached agreement on the terms of a cash offer for the Company by
Pillartree Limited ("Acquirer Sub"), a newly formed private
limited company wholly owned by Amgen, which is unanimously
recommended by the Company Board and pursuant to which Acquirer Sub
will acquire the entire issued and to be issued ordinary share
capital of the Company.
2. The Acquisition
It is agreed that the Acquisition will be implemented by way of
an Irish High Court-sanctioned scheme of arrangement under Chapter
1 of Part 9 of the Irish Companies Act (although Amgen reserves the
right to effect the Acquisition by way of a Takeover Offer, subject
to the terms of the Transaction Agreement, compliance with the
Irish Takeover Rules and with the consent of the Irish Takeover
Panel).
Under the terms of the Acquisition, which will be subject to the
Conditions and other terms set out in this Announcement and to
further terms to be set out in the Scheme Document, each Company
Shareholder at the Scheme Record Time will be entitled to
receive:
$116.50 for each Company Share
in cash
The Acquisition represents:
- a premium of approximately 47.9% to the closing price of
$78.76 per Company Share on
November 29, 2022 (being the last
closing price per Company Share prior to the Company's issuance of
an announcement of a possible offer under Rule 2.4 of the Irish
Takeover Rules); and
- a premium of approximately 19.7% to the closing price of
$97.29 per Company Share on
December 9, 2022.
The Acquisition values the entire issued and to be issued
ordinary share capital of the Company at approximately $27.8 billion on a fully diluted basis and
implies an enterprise value of approximately $28.3 billion.
The sources and bases of information contained in this
Announcement to calculate the implied value of the Acquisition are
set out in Appendix 1 (Sources and Bases of
Information).
3. Company Background to and Reasons for Recommending
the Acquisition
The Company is a biotechnology company focused on the discovery,
development and commercialisation of medicines that address
critical needs for people impacted by rare, autoimmune and severe
inflammatory diseases. The Company Board, together with the
Company's senior management, and with the assistance of its
financial and legal advisors, regularly reviews the Company's
strategic and financial prospects on a standalone basis in light of
developments in the Company's business, the sectors in which it
operates and the economy and financial markets generally.
Following receipt of an unsolicited proposal from Sanofi to
acquire the entire issued and to be issued ordinary share capital
of the Company for cash (the "Unsolicited Proposal"), the
Company Board, together with the Company's senior management, and
with the assistance of its outside advisors, met to discuss the
Unsolicited Proposal and determined that the offer price was
insufficient to warrant any substantive discussions or allow access
to any due diligence and rejected the proposal. During the next 28
days, Sanofi made two subsequent proposals at higher prices before
the Company Board determined that the proposed price was sufficient
to permit Sanofi to receive a management presentation and access to
limited additional information in order to support Sanofi making a
further enhanced offer. The Company Board also determined that the
best way to maximise shareholder value would be to approach other
potential bidders and authorised the Company's senior management
and its financial advisors to contact three additional global
biopharmaceutical companies that it believed may be interested in a
potential acquisition of the Company and would have the financial
means to complete an acquisition of this size, with the outreach
subject to obtaining the relevant consents of the Irish Takeover
Panel. After obtaining the consents, the Company's financial
advisors contacted the three parties, comprised of Amgen and two
other global pharmaceutical companies (one such company being
referred to herein as Company A and the other being Janssen Global
Services, LLC ("JNJ")), and conveyed that the Company had
received an unsolicited proposal to be acquired on an expeditious
timetable. All three parties expressed an interest in receiving a
management presentation and engaging in due diligence to determine
whether they would submit a proposal. The Company entered into
confidentiality agreements with all four parties and gave each of
the parties management presentations in a two day period and
responded to preliminary due diligence questions. Subsequently,
Amgen submitted an initial bid and Sanofi increased its proposed
price. Company A declined to submit a proposal. JNJ indicated that
it would continue to evaluate the information shared in the
management presentation and would make a determination after a
board meeting as to whether to submit a bid.
On November 29, 2022, the Company
released an announcement of a possible offer under Rule 2.4 of the
Irish Takeover Rules, confirming that it was in highly preliminary
discussions with Amgen, Sanofi and JNJ. On December 2, 2022, Sanofi and Amgen each released
a statement as required by Rule 2.12 of the Irish Takeover Rules
confirming that any offer, if made, would be in cash. Subsequently,
JNJ conveyed to the Company's financial advisors that it had
decided not to submit a proposal and issued a statement on
December 3, 2022 under Rule 2.8 of
the Irish Takeover Rules that it did not intend to make an offer
for the Company.
After considering the initial proposal from Amgen and the
revised proposal from Sanofi, the Company Board authorised the
Company to provide both parties with access to a due diligence data
room and to provide both parties with a draft transaction
agreement. After Amgen and Sanofi submitted proposed changes to the
draft transaction agreement and identified required regulatory
approvals, the Company Board authorised its financial advisors to
send a process letter to both parties indicating that final offers
with confirmation of funds certain should be submitted with a
negotiated transaction agreement by no later than December 9, 2022. At the instruction of the
Company and its financial advisors, each of Amgen and Sanofi
submitted its revised offer to acquire the Company on December 9, 2022. On December 10, 2022, the Company continued to
discuss the offers from Sanofi and Amgen and received additional
offers from Amgen and Sanofi at higher prices. Following the
discussions with Amgen and Sanofi, the Company Board met on
December 10, 2022, together with the
Company's senior management and financial and legal advisors, to
consider proposed terms of the best and final proposals from each
of Amgen and Sanofi. The Company Board, together with the Company's
senior management, and with the assistance of its financial and
legal advisors, reviewed the key legal and financial terms of each
of the proposals from each of Amgen and Sanofi. Following
discussions, the Company Board determined that the final proposal
from Amgen was superior to the proposal from Sanofi and the near
final drafts of the transaction agreements submitted by each party
were substantially comparable. Following discussions, the Company
Board unanimously determined to accept the terms of the offer
received from Amgen of $116.50 per
Company Share, resolving that such offer was in the best interests
of the Company and the Company Shareholders, and thereby approved
the Acquisition and resolved to recommend to the Company
Shareholders that they approve the Acquisition.
The Company Board carefully considered the terms of the
Acquisition and the other Transactions, consulted with Company
senior management and its financial and legal advisors, and
considered a number of factors, each of which is supportive of its
unanimous decision to approve the Acquisition and the other
Transactions and recommend the Transactions to the Company
Shareholders.
The Company believes Amgen has the capacity to maximise the
value of the Company's current portfolio and accelerate the ability
for Horizon's medicines to reach more patients globally with
increased global commercial scale as well as enhanced R&D and
technology capabilities to rapidly advance the pipeline to find
more therapies for patients who are underserved.
Further detail in respect of the background and reasons for
recommending the Acquisition will be included in the Proxy
Statement (which will include the Scheme Document).
4. Amgen Background to and Reasons for the
Acquisition
Amgen believes there is a compelling strategic and financial
rationale for undertaking the acquisition, which is expected to
deliver the following benefits:
The Acquisition adds first-in-class / best-in-class
innovative medicines that fit well with Amgen's portfolio and
strategic vision
- Since its founding in 2005, the Company has successfully built
a robust business with continued growth potential. TEPEZZA,
KRYSTEXXA and UPLIZNA are innovative biologic medicines with
impressive benefits that are reaching a growing number of patients
suffering from serious diseases. These three early life cycle
products collectively generated $2.0
billion of sales through the first nine months of 2022.
- Amgen's long-term strategy includes a focus on first-in-class
and best-in-class innovative therapeutics that treat grievous
illness, and on delivering those medicines to more patients around
the world.
- The Company's focus and products align well with Amgen's
long-term growth strategy:
-
- Amgen's growth reflects contributions from therapies with large
addressable patient populations (such as cardiovascular disease,
osteoporosis, psoriasis, and asthma), as well as therapies that
address diseases with lower prevalence (such as ANCA- associated
vasculitis, immune thrombocytopenic purpura and acute lymphoblastic
leukemia) that are adjacent to Amgen's core therapeutic areas.
TEPEZZA and KRYSTEXXA are a strong fit with the latter category and
help to further diversify the Combined Group's revenue outlook.
- TEPEZZA has significant growth potential in key ex-U.S. markets
such as Europe and Japan, which complements Amgen's international
growth strategy.
- The Company's R&D efforts include significant lifecycle
management expansion for currently marketed products, along with an
innovative mid- to late-stage pipeline with opportunities for
advancement of novel programs in disease areas such as myasthenia
gravis, IgG4-related disease, systemic lupus erythematosus, lupus
nephritis and Sjogren's Syndrome.
Amgen's global scale and 20-year history in
commercializing inflammation therapies can accelerate growth of the
Company's portfolio
- TEPEZZA is mechanistically rooted in inflammation and KRYSTEXXA
is commercially aligned with Enbrel and TAVNEOS, given the shared
rheumatology prescriber base. UPLIZNA targets an autoimmune
disorder (neuromyelitis optica spectrum disorder), which is also
consistent with Amgen's expertise in inflammation.
- The Company also has recent product approvals in Europe and Japan, where Amgen has existing commercial
platforms that could be quickly leveraged and augmented with
specialised sales force where needed. Globally, including the U.S.,
the Combined Group will benefit from Amgen's experience in
commercial operations such as access, medical, patient support, and
overall scale/expertise in marketing and sales.
The Company's platform strategies in R&D and
manufacturing can be strengthened by Amgen's 40-year history in
biologics, development and manufacturing
- Amgen has the scale, expertise, and resources to advance the
Company's pipeline molecules with speed, and to support global
registration and commercialisation. Given the Company's focus on
biologics, Amgen also has the process development expertise to
assist the Company in delivering lifecycle management programs
focused on new formulations and new routes of administration. Amgen
is also an industry leader in biologics manufacturing, which
provides opportunities for manufacturing cost efficiencies while
helping to ensure the Combined Group's products will reach "every
patient, every time". Further, Amgen has considerable expertise in
drug delivery systems that benefit the patient experience.
Strong financial profile with non-GAAP EPS accretion from
2024 and significant cash flow generation enabling continued
attractive shareholder payouts and investment in
innovation
- The robust free cash flow generated by the Combined Group
(approximately $10 billion over the
twelve months through Q3 2022)1 will enable de-levering
following Completion, while continuing to support investment in the
Combined Group's pipeline and commercial brands.
- The Acquisition is expected to be accretive to Amgen's revenue
and non-GAAP earnings per share from 2024. Amgen is not providing
or updating 2022 or 2030 guidance as a result of the
Acquisition.
- Amgen's goal is to maintain a strong investment grade credit
profile with debt leverage that is in-line with current levels by
the end of 2025. Amgen expects to support this goal with over
$10 billion of debt retirement
through that period.
- Amgen remains committed to growing its annual dividend over
time.
- The Acquisition is expected to deliver annual pre-tax cost
synergies of at least $500 million by
the end of the third fiscal year following Completion.
5. Company Board Recommendation
The Company Board, which has been so advised as to the financial
terms of the Acquisition by Morgan Stanley, which has rendered a
fairness opinion, considers the terms of the Acquisition to be fair
and reasonable. In providing its financial advice, Morgan Stanley
has taken into account the commercial assessments of the Company
Directors. Morgan Stanley is providing independent financial advice
to the Company Board for the purposes of Rule 3 of the Irish
Takeover Rules. The Company Board has unanimously determined that
the Transaction Agreement and the Transactions, including the
Scheme, are advisable for, fair to and in the best interests of,
the Company Shareholders. Accordingly, the Company Board
unanimously recommends that Company Shareholders vote in favour of
the Scheme Resolutions and the Required EGM Resolutions or, if the
Acquisition is implemented by a Takeover Offer, to accept or
procure acceptance of such Takeover Offer.
6. The Scheme Process
It is agreed that the Acquisition will be implemented by means
of an Irish High Court-sanctioned scheme of arrangement between the
Company and Company Shareholders under Chapter 1 of Part 9 of the
Irish Companies Act, pursuant to which Acquirer Sub will acquire
the entire issued and to be issued ordinary share capital of the
Company and each Company Shareholder will receive the
Consideration.
The Company Shares will be acquired pursuant to the Acquisition
fully paid, non-assessable and free from all liens, charges,
equities, encumbrances, rights of pre-emption and any other third
party rights of any nature whatsoever and together with all rights
attaching thereto, including without limitation voting rights and
the right to receive and retain in full all dividends and other
distributions (if any) announced, declared, made or paid with a
record date on or after the Scheme Record Time.
To become effective, the Scheme will require, among other
things, the approval of:
1 For the twelve months through Q3 2022, Amgen GAAP
operating cash flow of $9.88 billion
less Amgen capital expenditures of $883
million plus Horizon GAAP operating cash flow of
$1.37 billion less Horizon capital
expenditures of $56 million =
~$10 billion
- the Scheme Meeting Resolution by a majority in number of
members of each class of Company Shareholders (including as may be
directed by the Irish High Court pursuant to Section 450(5) of the
Irish Companies Act) present and voting either in person or by
proxy at the Scheme Meeting (or at any adjournment or postponement
of such meeting) representing, at the Voting Record Time, at least
75% in value of Company Shares of that class held by such Company
Shareholders present and voting either in person or by proxy at the
Scheme Meeting; and
- the Required EGM Resolutions being duly passed by the Company
Shareholders at the EGM (or any adjournment or postponement
thereof).
The Scheme Document will include full details of the Scheme,
together with notices of the Scheme Meeting and the EGM and the
expected timetable, and will specify the action to be taken by
Company Shareholders.
Following the passing of the approvals noted above being
obtained and the satisfaction or (where applicable) waiver of the
other conditions to the consummation of the Scheme, the sanction of
the Irish High Court will also be required in order for the Scheme
to become effective.
Assuming the above requirements are satisfied, and the other
Conditions, as described in more detail in paragraph 7 (The
Conditions) below, have been satisfied or waived (where
applicable), the Scheme will become effective upon delivery to the
Irish Registrar of Companies of a copy of the Court Order.
Upon the Scheme becoming effective, the Scheme will be binding
on all Company Shareholders, irrespective of whether or not they
attended or voted at the Scheme Meeting or the EGM and share
certificates, if any, in respect of Company Shares will cease to be
valid and entitlements to Company Shares held within DTC will be
cancelled.
Any Company Shares issued before the Scheme Record Time will be
subject to the terms of the Scheme. One of the EGM Resolutions to
be proposed at the EGM will, amongst other matters, provide that
the Company's memorandum and articles of association be amended to
incorporate provisions requiring any Company Shares issued after
the Scheme Record Time (other than to Amgen or its affiliates), for
example, due to the crystallisation of Company Options or Company
Share Awards, to either be subject to the terms of the Scheme or
acquired by Amgen and / or its affiliates on the same terms as the
Acquisition (other than terms as to timings and certain
formalities). The inclusion of these provisions in the Company's
memorandum and articles of association will prevent any person
(other than Amgen or its affiliates) holding Company Shares
immediately after the Effective Time.
Subject to satisfaction or waiver (as applicable) of the
Conditions, the Acquisition is expected to be completed in the
first half of 2023.
If the Scheme does not become effective on or before the End
Date (as may be extended pursuant to the Transaction Agreement), it
will lapse and the Acquisition will not proceed (unless the
Company, Amgen and Acquirer Sub otherwise agree and the Irish
Takeover Panel otherwise consents).
7. The Conditions
As well as being conditional upon the Company Shareholder
Approval and the Scheme becoming effective, as described in
paragraph 5 (The Scheme Process) above, the Acquisition is
also subject to receipt of certain other conditions as summarised
below.
The Acquisition is subject to the satisfaction or waiver (as
applicable) of the Conditions, which are set- out in full in
Appendix 3 (Conditions of the Acquisition and the
Scheme) to this Announcement, including, in summary:
- the approval by the Company Shareholders of the Scheme;
- the sanction of the Scheme by the Irish High Court;
- the receipt of required antitrust clearances in the United States, Austria and Germany and the receipt of required foreign
investment clearances in France,
Germany, Denmark and Italy;
- a copy of the Court Order having been delivered to the Irish
Registrar of Companies;
- the Transaction Agreement not having been terminated in
accordance with its terms;
- the accuracy of each of the Parties' representations and
warranties, subject to certain materiality and material adverse
effect exceptions;
- the performance by each Party, in all material respects, with
all of such Party's covenants and agreements under the Transaction
Agreement; and
- the absence of a Company Material Adverse Effect that is
continuing.
It is expected that the Proxy Statement (which will contain the
Scheme Document), containing further information relating to the
implementation of the Acquisition, the full terms and conditions of
the Scheme, notices of the Scheme Meeting and the EGM, will be made
available to Company Shareholders as promptly as reasonably
practicable after securing approval of the Irish High Court to send
the Scheme Document to Company Shareholders and, for information
only, to Company Equity Award Holders.
The Proxy Statement will contain important information about the
Acquisition (including the Scheme), the Transaction Agreement, the
Scheme Meeting and the EGM.
8. About the Company Group
The Company is a public limited company registered in
Ireland and whose shares are
admitted to trading on Nasdaq under the ticker "HZNP".
The Company is a global biotechnology company headquartered in
Dublin, Ireland and focused on the
discovery, development and commercialization of medicines that
address critical needs for people impacted by rare, autoimmune and
severe inflammatory diseases. The Company has 12 marketed medicines
and a pipeline with more than 20 development programs. The Company
has offices or a presence across four continents and more than
2,000 employees. For more information about the Company Group, see
www.horizontherapeutics.com.
9. About Amgen and Acquirer Sub
Acquirer Sub is a private limited company incorporated in
Ireland established for the sole
purpose of implementing the Acquisition and is a wholly owned
subsidiary of Amgen. As of the date of this Announcement, the
entire issued ordinary share capital of Acquirer Sub is owned by
Amgen.
Amgen is a highly focused biotechnology company committed to
unlocking the potential of biology for patients suffering from
serious illnesses by discovering, developing, manufacturing and
delivering innovative human therapeutics. This approach begins by
using tools like advanced human genetics to unravel the
complexities of disease and understand the fundamentals of human
biology. Amgen focuses on areas of high unmet medical need and
leverages its expertise to strive for solutions that improve health
outcomes and dramatically improve people's lives. A biotechnology
pioneer since 1980, Amgen has grown to be one of the world's
leading independent biotechnology companies. Amgen is one of the 30
companies that comprise the Dow Jones Industrial Average and is
also part of the Nasdaq-100 index.
For more information about Amgen, see www.amgen.com.
10. Effect of the Scheme on Company Share
Plans
In accordance with Rule 15 of the Irish Takeover Rules, Amgen
will make appropriate proposals to participants of the Company
Share Plans in relation to the options and awards under the Company
Share Plans. Participants will be contacted separately, at or as
soon as possible after the time of publication of the Scheme
Document, regarding the effect of the Acquisition on their options
and awards under the Company Share Plans and the relevant details
will be summarised in the Scheme Document.
The Scheme will extend to any Company Shares which are
unconditionally allotted or issued at or before the Scheme Record
Time, including those allotted or issued to satisfy the exercise of
options or vesting of awards under the Company Share Plans.
11. Management, Employees and Locations
As described in paragraph 4 (Amgen Background to and Reasons
for the Acquisition) above, Amgen believes there is a
compelling strategic rationale for undertaking the Acquisition,
which would enable the Combined Group to deliver first-in-class
medicines to many more patients suffering from serious illness.
Amgen recognises the skills, knowledge and experience of the
Company's employees and is excited to work with them to further
enhance the therapeutic offerings, and grow the value, of the
Combined Group in the longer term.
Following this Announcement, to the extent permitted by
applicable antitrust rules, Amgen intends to engage with the
Company's senior management in integration planning, involving a
review of the Company's business. While the parameters of the
review have not yet been finalised, Amgen expects that it will
involve evaluating the best way in which to further develop, as
part of the Combined Group following Completion, the three existing
strategic goals of the Company, which are to (i) maximise the value
of its on-market rare disease medicines through commercial
execution and clinical investment; (ii) expand its R&D pipeline
through significant internal investment and external business
development; and (iii) build a global presence in targeted
international markets.
In addition, the review will also involve assessing how best to
combine the operations of Amgen and the Company in order to achieve
some of the expected benefits of the Acquisition (including the
cost synergies identified in paragraph 4 (Amgen Background to
and Reasons for the Acquisition) above. The review would aim to
identify and assess integration benefit opportunities, and to
ascertain those areas in which a reduction in the number of
employees of the Combined Group may be appropriate. Amgen has not
yet carried out the review referred to above and, except as
described below, has not reached any conclusions as to its likely
outcome nor made any decisions in relation to specific actions that
may be taken in relation to the integration of Amgen and the
Company.
Amgen understands the importance of innovation to the Company's
business, and intends to continue to invest in and develop its
R&D capabilities as part of the Combined Group following
Completion, with a view to ensuring in particular that the
Company's existing pipeline of preclinical and clinical development
programmes can continue to expand.
Management and employees
Amgen attributes significant value to the Company Group's
management and employees, whose ongoing contribution will be key to
growing the value of the enlarged business of Amgen in the longer
term.
Amgen will safeguard the existing employment rights, including
pension rights, of the Company Group's management and employees in
accordance with applicable Law. Amgen does not envisage any
material change in the conditions of employment of the management
and employees of the Combined Group as a result of the Acquisition.
Under the Transaction Agreement, Amgen has given certain assurances
in relation to the continuation of certain existing compensation
and employment benefit arrangements of the Company Group's
employees following the Acquisition. Further details in this regard
will be included in the Scheme Document.
While Amgen has not yet begun to carry out the review of the
Company's business referred to above and has not reached any
conclusions as to its likely outcome or made any decisions in
relation to any specific actions that may be taken as a result of
this evaluation in relation to employees of the Combined Group,
Amgen currently anticipates that there will be some operational and
administrative restructuring of the Company Group required
following Completion. This will also facilitate the integration of
the two businesses as part of the Combined Group. In particular,
certain central corporate and support functions, including those
relating to the Company's status as a listed company, may no longer
be required on a standalone basis or may be reduced in scope. No
decisions have been made as to the number of employees or the roles
and locations that may be affected. Amgen also currently
anticipates that there may be opportunities for the Combined Group
to realise cost efficiencies from leveraging Amgen's global scale,
systems and processes across various functions.
The non-executive directors of the Company intend to resign as
directors of the Company with effect from Completion.
Headquarters, locations of business and fixed
assets
Following Completion, the global headquarters of the Combined
Group will be located at Amgen's current global headquarters in
Thousand Oaks, California.
Amgen will, as part of its review of the Company's business
referred to above, evaluate the consolidation of some or all of the
Company's locations of business into Amgen's global headquarters in
Thousand Oaks, California and
other locations of Amgen across the
United States and worldwide, including functions currently
undertaken at the Company's current global headquarters in
Dublin.
No material changes are envisaged by Amgen with respect to the
redeployment of the Company's fixed asset base.
Trading facilities
The Company Shares are currently listed on the Nasdaq Global
Select Market and, as set out in paragraph 12 (Delisting of
Company Shares) below, the Company Shares will be delisted from
the Nasdaq Global Select Market and deregistered, as promptly as
practicable after the Effective Time, and in any event no more than
ten days after the Completion Date.
12. Delisting of Company Shares
Prior to the Completion Date, the Company will cooperate with
Amgen and use its reasonable best efforts to take, or cause to be
taken, all actions, and do or cause to be done all things,
reasonably necessary, proper or advisable on its part under
applicable Laws and rules and policies of Nasdaq to enable the
delisting of the Company Shares from Nasdaq and the deregistration
of the Company Shares under the Exchange Act as promptly as
practicable after the Effective Time. After the cancellation of the
listing and trading of Company Shares on the Nasdaq Global Select
Market, the Company will be re- registered as a private limited
company.
13. Transaction Agreement
The Company, Amgen and Acquirer Sub have entered into the
Transaction Agreement, dated December 11,
2022, which contains certain assurances, obligations and
commitments in relation to the implementation of the Acquisition,
including provisions in relation to the conduct of the Company's
business between the date of this Announcement and the Effective
Date. A copy of the Transaction Agreement is appended to this
Announcement at Appendix 4 (Transaction Agreement) and a
summary of the principal terms of the Transaction Agreement will be
set out in the Proxy Statement (which will include the Scheme
Document).
The Transaction Agreement provides that neither the Company
Directors nor the Company shall make a Company Change of
Recommendation for a Company Superior Proposal or a Company
Intervening Event or terminate the Transaction Agreement in order
to substantially concurrently enter into a definitive agreement
providing for a Company Superior Proposal, unless, among other
things, prior to taking such action, the Company has notified Amgen
in writing at least four Business Days before taking such action,
that the Company intends to take such action, and has negotiated in
good faith with Amgen regarding any proposal by Amgen to amend the
Transaction Agreement.
The Transaction Agreement includes provisions pursuant to which
the Company has agreed to reimburse to Amgen in certain
circumstances set out below for an amount equal to all documented,
specific, quantifiable third party costs and expenses incurred,
directly or indirectly, by Amgen and / or any member of the Amgen
Group, or on its behalf, for the purposes of, in preparation for,
or in connection with the Acquisition, including third party costs
and expenses incurred in connection with exploratory work carried
out in contemplation of and in connection with the Acquisition,
legal, financial and commercial due diligence, the arrangement of
financing and the engagement of third party representatives to
assist in the process (the "Expenses Reimbursement
Provisions"). The gross amount payable by the Company to Amgen
for such reimbursement shall not, in any event, exceed $278,404,301 (being 1% of the total value of the
issued and to be issued ordinary share capital of the Company that
is the subject of the Acquisition (excluding, for the avoidance of
doubt, any interest in such share capital held by Amgen or any
person Acting in Concert with Amgen)).
If the Transaction Agreement is terminated pursuant to its
terms, Amgen's receipt of such reimbursement payment (to the extent
owed by the Company pursuant to the Transaction Agreement) and
Amgen's right to seek specific performance will be the sole and
exclusive remedies of the Amgen Parties and the Amgen Related
Parties against any of the Company and its Affiliates and Company
Related Parties, including for any failure to consummate the
Transactions or any claims or actions under applicable Laws arising
out of any breach, termination or failure by the Company and its
Affiliates to perform any covenant or agreement in the Transaction
Agreement.
The amount payable by the Company to Amgen under the Expenses
Reimbursement Provisions will exclude any amounts in respect of VAT
incurred by Amgen or any member of the Amgen Group attributable to
such third party costs other than irrevocable VAT incurred by Amgen
or its Subsidiaries.
The circumstances in which such payment will be made by the
Company are, if the Transaction Agreement is terminated:
(a) by Amgen pursuant to a Change of Recommendation Termination;
or
(b) by the Company pursuant to a Superior Proposal Termination;
or
(c) all of the following occur:
(i) the Transaction Agreement is terminated (x) by Amgen
pursuant to a Company Breach Termination as a result of a material
breach or failure to perform any covenant or agreement in the
Transaction Agreement described in Section 9.1(a)(iii)(A) of the
Transaction Agreement that first occurred following the making of a
Company Alternative Proposal of the type referred to in Section
9.2(b)(iii)(B) of the Transaction Agreement or (y) by Amgen or the
Company pursuant to a Non Approval Termination but if such
termination is by the Company at such time Amgen would be permitted
to terminate the Transaction Agreement; and
(ii) prior to the Scheme Meeting, a Company Alternative Proposal
was publicly disclosed or announced and not withdrawn (or, in the
case of a Company Breach Termination as a result of a material
breach or failure to perform any covenant or agreement in the
Transaction Agreement, was made publicly or privately to the
Company Board), or any Person shall have publicly announced an
intention (whether or not conditional) to make a Company
Alternative Proposal that has not been withdrawn (it being
understood that, for purposes of Section 9.2(b)(iii)(B) of the
Transaction Agreement, references to "20%" in the definition
of Company Alternative Proposal shall be deemed to refer to
"50%"); and
(iii) (x) a Company Alternative Proposal is consummated within
12 months after such termination, or (y) a definitive agreement
providing for a Company Alternative Proposal is entered into within
12 months after such termination and is subsequently
consummated.
Morgan Stanley as Rule 3 Advisor to the Company and the Company
have confirmed in writing to the Panel that, in the opinion of
Morgan Stanley and the Company (respectively), in the context of
the note to Rule 21.2 of the Irish Takeover Rules and the
Acquisition, the Expenses Reimbursement Provisions are in the best
interests of the Company Shareholders. The Irish Takeover Panel has
consented to the Company entering into the Expenses Reimbursement
Provisions.
The Transaction Agreement provides that, upon termination of the
Transaction Agreement under certain circumstances relating to the
failure to obtain applicable Antitrust Laws or Foreign Investment
Laws Clearances prior to the End Date, Amgen will pay the Company a
reverse termination fee of $974,415,054.
14. Financing of the Acquisition
Amgen has entered into a Bridge Credit Agreement, dated
December 12, 2022, for an aggregate
amount of $28.5 billion, by and among
Amgen, Citibank N.A., as administrative agent, Bank of America,
N.A., as syndication agent, and Citibank, N.A. and Bank of America,
N.A. as lead arrangers and book runners, and the other banks from
time to time party thereto to finance, together with Amgen's own
cash resources, the Acquisition. Further information on the
financing of the Acquisition will be set out in the Scheme
Document.
PJT Partners, lead financial advisor to Amgen, is satisfied that
sufficient resources are available to Acquirer Sub to satisfy in
full the consideration payable to Company Shareholders under the
terms of the Acquisition.
15. Other Acquisition-related
Arrangements
The Company and Amgen entered into a confidentiality agreement
on November 18, 2022, pursuant to
which the Company and Amgen have undertaken, amongst other things,
to: (a) keep confidential information relating to the Acquisition
and not to disclose it to third parties (other than certain
permitted parties) unless required by Law or regulation; and (b)
use the confidential information for the sole purpose of evaluating
and participating in discussions regarding the Acquisition. The
agreement also includes standstill provisions, pursuant to which
Amgen has agreed to certain restrictions in respect of dealings in
Company Shares, solicitation or engagement in respect of competing
transactions, subject to customary standstill termination
provisions, for a period of 12 months.
16. Tax
Each holder of Company Shares is urged to consult his, her or
its independent professional advisor regarding the tax consequences
of the Transactions.
17. Disclosure of Interests in Relevant Securities of
the Company
As of the close of business on December
9, 2022 (being the last Business Day prior to the date of
this Announcement), the Robert A. Eckert Living Trust (a related
trust of Robert A. Eckert, an Amgen
Director) was interested in 86 Company Shares.
Save as described above, as of the close of business on
December 9, 2022 (being the last
Business Day prior to the date of this Announcement), none of Amgen
or, so far as Amgen is aware, any person Acting in Concert with
Amgen:
(a) had an interest in relevant securities of the Company;
(b) had any short position in relevant securities of the
Company;
(c) had received an irrevocable commitment or letter of intent
to accept the terms of the Acquisition in respect of relevant
securities of the Company; or
(d) had borrowed or lent any Company Shares.
Furthermore, no arrangement to which Rule 8.7 of the Irish
Takeover Rules applies exists between Amgen or the Company or a
person Acting in Concert with Amgen or the Company in relation to
Company Shares. For these purposes, an "arrangement to which Rule
8.7 of the Irish Takeover Rules applies" includes any indemnity or
option arrangement, and any agreement or understanding, formal or
informal, of whatever nature, between two or more persons relating
to relevant securities which is or may be an inducement to one or
more of such persons to deal or refrain from dealing in such
securities.
18. Section 3(7) of Appendix 4 Derogation
Section 3(7) of Appendix 4 of the Irish Takeover Rules requires
that, except with the consent of the Panel, and subject to Rule
2.11 of the Irish Takeover Rules, the Company must send the Scheme
Document to Company Shareholders within 28 days of the announcement
of a firm intention to make an offer, being this Announcement.
On December 9, 2022 the Panel
agreed to grant a waiver of Section 3 (7) of Appendix 4 of the
Rules.
There is a requirement to file the Proxy Statement (which will
also include the Scheme Document) with the SEC in connection with
the Scheme. The preparation of the Proxy Statement may take more
than 28 days. Also, the SEC may elect to review the Proxy
Statement. This review process will take no fewer than 10 days and
may take a longer time to complete. Under SEC rules, the Proxy
Statement may not be mailed to Company Shareholders until such
review is complete. The Panel granted the derogation on the basis
that the Scheme Document cannot be sent until the SEC's review of
the Proxy Statement is completed. The Proxy Statement (which will
also contain the Scheme Document) will be mailed to Company
Shareholders as soon as practicable after a definitive Proxy
Statement is filed with the SEC.
19. Documents on display
Copies of the following documents will, by no later than 12:00
noon (E.T.) on the business day following the date of this
Announcement, be made available the Company's website
www.horizontherapeutics.com and on Amgen's website
www.amgen.com:
(a) the Leak Announcement;
(b) this Announcement;
(c) the Confidentiality Agreement; and
(d) the Transaction Agreement.
Neither the contents of the Company's website or the contents of
Amgen's website, nor the contents of any other website accessible
from hyperlinks on either such website, is incorporated into or
forms part of, this Announcement.
20. Rule 2.7(b)(xv) Statement
Subject to the Transaction Agreement, Amgen will have the right
to reduce the Consideration by the amount of any dividend (or other
distribution) which is paid or becomes payable by the Company to
Company Shareholders in addition to the Consideration.
21. General
The Transaction Agreement is governed by the Laws of the
State of Delaware. However, the
Acquisition and the Scheme, and matters related thereto (including
matters related to the Irish Takeover Rules), shall, to the extent
required by the Laws of Ireland,
be governed by, and construed in accordance with, the Laws of
Ireland. The interpretation of the
duties of the Company Directors shall also be governed by, and
construed in accordance with, the Laws of Ireland.
The Acquisition is subject to, inter alia, the terms and
conditions of the Transaction Agreement and the terms and the
satisfaction or waiver (as applicable) of the Conditions set out in
Appendix 3 (Conditions of the Acquisition and the
Scheme) to this Announcement. The Acquisition is also subject
to the full terms and conditions which will be set out in the
Scheme Document.
Appendix 1 (Sources and Bases of Information) contains
further details of the sources of information and bases of
calculations set out in this Announcement; Appendix 2
(Definitions) contains definitions of certain expressions
used in this Announcement; Appendix 3 (Conditions of the
Acquisition and the Scheme) contains the Conditions of the
Acquisition and the Scheme; and Appendix 4 (Transaction
Agreement) appends the Transaction Agreement.
The financial information included in this Announcement and to
be included in the Scheme Document has or will be prepared in
accordance with generally accepted accounting principles in
the United States. The following
non-GAAP financial measures have been included in this Announcement
in relation to Amgen and the Combined Group:
- "free cash flow", which is computed by subtracting capital
expenditures from operating cash flow, each as determined in
accordance with GAAP; and
- "non-GAAP EPS", which is computed by taking non-GAAP net income
and dividing it by the number of weighted-average shares of
Amgen.
These non-GAAP financial measures are in addition to, not a
substitute for, or superior to, measures of financial performance
prepared in accordance with GAAP.
Be aware that addresses, electronic addresses and certain other
information provided by Company Shareholders, holders of shares in
Amgen, persons with information rights and other relevant persons
for the receipt of communications from the Company, and / or Amgen
may be exchanged between the Parties as required by the Irish
Takeover Rules and applicable Law.
This Announcement does not constitute a prospectus or prospectus
equivalent document.
Any response in relation to the Acquisition should be made only
on the basis of the information contained in the Scheme Document
and the Proxy Statement or any document by which the Acquisition
and the Scheme are made. Company Shareholders are advised to read
carefully the formal documentation in relation to the Acquisition,
including the Scheme Document once the Proxy Statement has been
sent.
The Transaction Agreement contains representations and
warranties made by and to the parties thereto as of specific dates.
The statements embodied in those representations and warranties
were made for purposes of the contract between the parties and may
be subject to qualifications and limitations agreed by the parties
in connection with negotiating the terms of that contract. In
addition, certain representations and warranties were made as of a
specified date, may be subject to a contractual standard of
materiality different from those generally applicable to investors,
or may have been used for the purpose of allocating risk between
the parties rather than establishing matters as facts.
If you are in any doubt about the contents of this Announcement
or the action you should take, you are recommended to seek your own
independent financial advice immediately from your appropriately
authorised independent financial advisor.
Enquiries
Company
|
|
Investors: Tina
Ventura
|
Tel: +1 224 383
3344
|
Media: Geoff
Curtis
|
Tel: +1 224 383
3333
|
|
|
Morgan Stanley
(Joint Financial Advisor to the Company)
|
|
Julie
Rozenblyum
|
Tel: +1 212 761
4000
|
Joe Modisett
|
|
Tedd Smith
|
|
David
Kitterick
|
Tel: +44 20 7425
8000
|
|
|
J.P. Morgan (Joint
Financial Advisor to the Company)
|
|
Dwayne
Lysaght
|
Tel: +44 (0) 20 7742
4000
|
Jeremy
Meilman
|
Tel: +1 (212)
270-6000
|
Ben
Carpenter
|
Tel: +1 (212)
270-6000
|
Steve Frank
|
Tel: +1 (212)
270-6000
|
|
|
Amgen
|
|
Investors: Arvind
Sood
|
Tel: +1 805 447
1060
|
Media: Jessica
Akopyan
|
Tel: +1 805 440
5721
|
|
|
PJT Partners (Lead
Financial Advisor to Amgen)
|
|
Paul Taubman
|
Tel: +1 212 364
7800
|
Tom Davidson
|
Tel: +1 212 364
7800
|
Basil
Geoghegan
|
Tel: +44 (0)20 3650
1100
|
Daniel Lee
|
Tel: +1 212 364
7800
|
Kush Nanjee
|
Tel: +44 (0)20 3650
1100
|
|
|
Citigroup
(Financial Advisor to Amgen)
|
|
Torrey
Browder
|
Tel: +44 20 7986
4000
|
Sumit
Khedekar
|
Tel: +44 20 7986
4000
|
Rob Way
|
Tel: +44 20 7986
4000
|
Sian Evans
|
Tel: +44 20 7986
4000
|
Marc
Banziger
|
Tel: +44 20 7986
4000
|
|
|
Edelman (PR Advisor
to Amgen)
|
|
Lex Suvanto
|
Tel: + 1 212 768
0550
|
Shannon
Susko
|
Tel: + 1 212 768
0550
|
Jamaal
Mobley
|
Tel: + 1 212 768
0550
|
Joe Carmody
|
Tel: +353 1 592
1330
|
Piaras Kelly
|
Tel: +353 1 592
1330
|
Feargal
Purcell
|
Tel: +353 1 592
1330
|
NO OFFER OR SOLICITATION
This Announcement is for information purposes only and is not
intended to and does not constitute, or form part of, an offer,
invitation or the solicitation of an offer or invitation to
purchase, otherwise acquire, subscribe for, sell or otherwise
dispose of any securities, or the solicitation of any vote or
approval in any jurisdiction, pursuant to the Acquisition or
otherwise, nor shall there be any sale, issuance or transfer of
securities in any jurisdiction in contravention of applicable
Law.
The Acquisition will be implemented by means of an Irish High
Court-sanctioned scheme of arrangement on the terms provided for in
the Scheme Document (or, if the Acquisition is implemented by way
of a Takeover Offer, the Takeover Offer Document), which will
contain the full terms and conditions of the Acquisition, including
details of how Company Shareholders may vote in respect of the
Acquisition. Any decision in respect of, or other response to, the
Acquisition, should be made only on the basis of the information
contained in the Scheme Document (or if the Acquisition is
implemented by way of a Takeover Offer, the Takeover Offer
Document).
IMPORTANT ADDITIONAL INFORMATION WILL BE FILED WITH THE
SEC
In connection with the Acquisition, the Company will file with
the SEC a Proxy Statement (which will include the Scheme Document).
The Proxy Statement will be mailed to Company Shareholders as of
the record date to be established for voting at the Scheme Meeting
or EGM. This Announcement is not a substitute for the Proxy
Statement or any other document that the Company may file with the
SEC or send to its shareholders in connection with the Acquisition.
BEFORE MAKING ANY VOTING DECISION, HOLDERS OF COMPANY SHARES ARE
URGED TO READ THE PROXY STATEMENT (INCLUDING THE SCHEME DOCUMENT)
ANY AMENDMENTS OR SUPPLEMENTS THERETO AND OTHER RELEVANT DOCUMENTS
FILED OR TO BE FILED WITH THE SEC IN CONNECTION WITH THE
ACQUISITION, INCLUDING ANY DOCUMENTS INCORPORATED BY REFERENCE
THEREIN, CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE
BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE
ACQUISITION, THE PARTIES TO THE SCHEME AND RELATED MATTERS.
Any vote in respect of the Scheme Meeting Resolution and the EGM
Resolutions to approve the Acquisition, the Scheme or related
matters, or other responses in relation to the Acquisition, should
be made only on the basis of the information contained in the Proxy
Statement (including the Scheme Document).
The Proxy Statement, if and when filed, as well as the Company's
other public filings with the SEC, may be obtained without charge
at the SEC's website at www.sec.gov and at the Company's website at
https://ir.horizontherapeutics.com/financial-information/sec-filings.
Company Shareholders and investors will also be able to obtain,
without charge, a copy of the Proxy Statement (including the Scheme
Document) and other relevant documents (when available) by
directing a written request to the Company, Attn: Investor
Relations, 70 St. Stephen's Green, Dublin 2, D02 E2X4, Ireland or by contacting Tina Ventura, Investor Relations, by email to
ir@horizontherapeutics.com.
PARTICIPANTS IN THE SOLICITATION
The Company and certain of its directors, executive officers and
employees may be deemed to be participants in the solicitation of
proxies from Company Shareholders in connection with the
Acquisition and any other matters to be voted on at the Scheme
Meeting or the EGM. Information about the directors and executive
officers of the Company, including a description of their direct or
indirect interests, by security holdings or otherwise, is set forth
in the Company's definitive proxy statement on Schedule 14A for its
2022 annual general meeting of shareholders, dated and filed with
the SEC on March 17, 2022. Other
information regarding the persons who may, under the rules of the
SEC, be deemed to be participants in the solicitation of Company
Shareholders, including a description of their direct or indirect
interests, by security holdings or otherwise, will be set forth in
the Proxy Statement (which will contain the Scheme Document) and
other relevant materials to be filed with the SEC in connection
with the Acquisition. You may obtain free copies of these documents
using the sources indicated above.
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
This Announcement contains certain statements about the Company
and Amgen that are or may be forward-looking statements which
include, but are not limited to, statements regarding expected
timing, completion and effects of the Acquisition. These
forward-looking statements are subject to the safe harbor
provisions under the U.S. Private Securities Litigation Reform Act
of 1995. All statements other than statements of historical facts
included in this Announcement may be forward-looking statements.
Without limitation, forward-looking statements often include words
such as "expect," "anticipate," "outlook," "could," "target,"
"project," "intend," "plan," "believe," "seek," "estimate,"
"should," "may," "assume" and "continue" as well as variations of
such words and similar expressions are intended to identify such
forward-looking statements. The Company's and Amgen's expectations
and beliefs regarding these matters may not materialise. Actual
outcomes and results may differ materially from those contemplated
by these forward-looking statements as a result of uncertainties,
risks, and changes in circumstances, including but not limited to
risks and uncertainties related to: the ability of the Parties to
consummate the Acquisition in a timely manner or at all; the
satisfaction (or waiver) of conditions to the consummation of the
Acquisition, including with respect to the approval of Company
Shareholders and required regulatory approvals; potential delays in
consummating the Acquisition; the ability of the Company and Amgen
to timely and successfully achieve the anticipated strategic
benefits, synergies or opportunities expected as a result of the
Acquisition; the successful integration of the Company into Amgen
subsequent to Completion and the timing of such integration; the
impact of changes in global, political, economic, business,
competitive, market and regulatory forces; the impact of health
pandemics, including the COVID-19 pandemic, on the Company's or
Amgen's respective businesses; the occurrence of any event, change
or other circumstance or condition that could give rise to the
termination of the Transaction Agreement; adverse effects on the
market price of the Company's or Amgen's securities and on the
Company's or Amgen's operating results because of a failure to
complete the Acquisition; the effect of the announcement or
pendency of the Acquisition on the Company's or Amgen's business
relationships, operating results and business generally; costs
related to the Acquisition; and the outcome of any legal
proceedings that may be instituted against the Company, Amgen
Acquirer Sub or any of their respective directors or officers
related to the Transaction Agreement or the Acquisition. Additional
risks and uncertainties that could cause actual outcomes and
results to differ materially from those contemplated by the
forward-looking statements are included under the caption "Risk
Factors" and elsewhere in the Company's most recent filings with
the SEC, including its Quarterly Report on Form 10-Q for the
quarter ended September 30, 2022, and
Amgen's most recent filings with the SEC, including its Quarterly
Report on Form 10-Q for the quarter ended September 30, 2022, and any subsequent reports on
Form 10-K, Form 10-Q or Form 8-K filed with the SEC by the Company
or Amgen from time to time and available at www.sec.gov. These
documents can be accessed on the Company's web page at
https://ir.horizontherapeutics/financial-information.com/sec-filings or
on Amgen's web page at
https://investorsamgen.com/financials/sec-filings.
The forward-looking statements included in this Announcement are
made only as of the date hereof. Neither the Company nor Amgen
assumes any obligation to, and neither the Company nor Amgen
intends to, update these forward-looking statements, except as
required by applicable Law.
RESPONSIBILITY STATEMENT REQUIRED BY THE IRISH TAKEOVER
RULES
The Company Directors accept responsibility for the information
contained in this Announcement relating to the Company, the Company
Group and the Company Directors and members of their immediate
families, related trusts and persons connected with them and for
the Company Amgen Statements (as defined below), except for the
statements made by Amgen in respect of the Company (the "Amgen
Company Statements"). To the best of the knowledge and belief
of the Company Directors (who have taken all reasonable care to
ensure that such is the case), the information contained in this
Announcement for which they accept responsibility is in accordance
with the facts and does not omit anything likely to affect the
import of such information.
The Amgen Directors and Acquirer Sub Directors accept
responsibility for the information contained in this Announcement
other than that relating to the Company, the Company Group and the
Company Directors and members of their immediate families, related
trusts and persons connected with them but including the Amgen
Company Statements (for which the Amgen Directors and the Acquirer
Sub Directors accept responsibility), and other than the statements
made by the Company in respect of Amgen (the "Company Amgen
Statements"). To the best of the knowledge and belief of the
Amgen Directors (who have taken all reasonable care to ensure such
is the case), the information contained in this Announcement for
which they accept responsibility is in accordance with the facts
and does not omit anything likely to affect the import of such
information.
IMPORTANT NOTICES RELATING TO FINANCIAL ADVISORS
Morgan Stanley & Co. LLC, acting through its affiliate
Morgan Stanley & Co. International plc (together, "Morgan
Stanley"), which is authorised by the Prudential Regulation
Authority and regulated by the Financial Conduct Authority in the
United Kingdom, is acting
exclusively for the Company as financial advisor and for no one
else in relation to the matters referred to in this Announcement.
In connection with such matters, Morgan Stanley and its directors,
officers, employees and agents will not regard any other person as
its client, nor will it be responsible to anyone other than the
Company for providing the protections afforded to their clients or
for providing advice in connection with the matters described in
this Announcement or any matter referred to herein.
J.P. Morgan Securities LLC ("J.P. Morgan"), which is a
registered broker dealer with the SEC, is acting as financial
advisor to the Company in connection with the Acquisition. In
connection with the Acquisition, J.P. Morgan and its directors,
officers, employees and agents will not regard any other person as
its client, nor will it be responsible to anyone other than the
Company for providing the protections afforded to clients of J.P.
Morgan or for giving advice in connection with the Acquisition or
any matter referred to herein.
PJT Partners, which is a registered broker dealer with the SEC,
is acting exclusively for Amgen and for no-one else in connection
with the matters referred to in this Announcement and will not be
responsible to anyone other than Amgen for providing the
protections afforded to clients of PJT Partners nor for providing
advice in relation to the matters referred to in this Announcement.
Neither PJT Partners nor any of its subsidiaries, branches or
affiliates owes or accepts any duty, liability or responsibility
whatsoever (whether direct or indirect, whether in contract, in
tort, under statute or otherwise) to any person who is not a client
of PJT Partners in connection with this Announcement, any statement
contained herein or otherwise.
Citigroup, which is a registered broker-dealer regulated by the
SEC, is acting exclusively for Amgen and for no one else in
connection with the Acquisition and other matters described in this
announcement, and will not be responsible to anyone other than
Amgen for providing the protections afforded to clients of
Citigroup nor for providing advice in connection with the
Acquisition or any other matters referred to in this announcement.
Neither Citigroup nor any of its affiliates, directors or employees
owes or accepts any duty, liability or responsibility whatsoever
(whether direct or indirect, consequential, whether in contract, in
tort, under statute or otherwise) to any person who is not a client
of Citigroup in connection with this announcement, any statement
contained herein, the Acquisition or otherwise.
DISCLOSURE REQUIREMENTS OF THE IRISH TAKEOVER RULES
Under the provisions of Rule 8.3(a) of the Irish Takeover Rules,
any person who is 'interested' in 1% or more of any class of
'relevant securities' of the Company must make an 'opening position
disclosure' following the commencement of the 'offer period'. An
'opening position disclosure' must contain the details contained in
Rule 8.6(a) of the Irish Takeover Rules, including, among other
things, details of the person's 'interests' and 'short positions'
in any 'relevant securities' of the Company. An 'opening position
disclosure' by a person to whom Rule 8.3(a) applies must be made by
no later than 3:30 pm (E.T.) on the
day falling ten 'business days' following the commencement of the
'offer period'. Relevant persons who deal in any 'relevant
securities' prior to the deadline for making an 'opening position
disclosure' must instead make a 'dealing' disclosure as described
below.
Under the provisions of Rule 8.3(b) of the Irish Takeover Rules,
if any person is, or becomes, 'interested' in 1% or more of any
class of 'relevant securities' of the Company, that person must
publicly disclose all 'dealings' in any 'relevant securities' of
the Company during the 'offer period', by not later than
3:30 p.m. (E.T.) on the 'business
day' following the date of the relevant transaction.
If two or more persons co-operate on the basis of any agreement
either express or tacit, either oral or written, to acquire an
'interest' in 'relevant securities' of the Company or any
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3 of the Irish Takeover Rules.
In addition, each of the Company and any offeror must make an
'opening position disclosure' by no later 12:00 noon (E.T.) on the
date falling ten 'business days' following the commencement of the
'offer period' or the announcement that first identifies a
securities exchange offeror, as applicable, and disclose details of
any 'dealings' by it or any person 'acting in concert' with it in
'relevant securities' during the 'offer period', by no later than
12:00 noon (E.T.) on the business day following the date of the
transaction (see Rules 8.1, 8.2 and 8.4).
A disclosure table, giving details of the companies in whose
'relevant securities' 'opening position' and 'dealings' should be
disclosed can be found on the Irish Takeover Panel's website at
www.irishtakeoverpanel.ie.
'Interests' in securities arise, in summary, when a person has
long economic exposure, whether conditional or absolute, to changes
in the price of securities. In particular, a person will be treated
as having an 'interest' by virtue of the ownership or control of
securities, or by virtue of any option in respect of, or derivative
referenced to, securities.
Terms in quotation marks are defined in the Irish Takeover
Rules, which can be found on the Irish Takeover Panel's website. If
you are in any doubt as to whether or not you are required to
disclose an 'opening position' or 'dealing' under Rule 8, please
consult the Irish Takeover Panel's website at
www.irishtakeoverpanel.ie or contact the Irish Takeover Panel on
telephone number +353 1 678 9020.
NO PROFIT FORECAST /
QUANTIFIED FINANCIAL BENEFIT STATEMENT
/ ASSET VALUATIONS
No statement in this Announcement is intended to constitute a
profit forecast or quantified financial benefit statement for any
period, nor should any statements be interpreted to mean that
earnings or earnings per share will necessarily be greater or
lesser than those for the relevant preceding financial periods for
Amgen or the Company. No statement in this Announcement constitutes
an asset valuation.
PUBLICATION ON WEBSITE
In accordance with Rule 26.1 of the Irish Takeover Rules, a copy
of this Announcement will be available on the Company's website at
www.horizon.therapeutics.com and Amgen's website at www.amgen.com
by no later than 12 noon (E.T.) on the business day following this
Announcement. Neither the content of any such website nor the
content of any other website accessible from hyperlinks on such
website is incorporated into, or forms part of, this
Announcement.
REQUESTING HARD COPY INFORMATION
Any Company Shareholder may request a copy of this Announcement
and / or any information incorporated by reference into this
Announcement in hard copy form by writing to the Company, Attn:
Investor Relations, 70 St. Stephen's Green, Dublin 2, D02 E2X4, Ireland, or by contacting Tina Ventura, Investor Relations, via email at
ir@horizontherapeutics.com. Any written requests must include the
identity of the Company Shareholder and any hard copy documents
will be posted to the address of the Company Shareholder provided
in the written request. If you have received this Announcement in
electronic form, a hard copy of this Announcement and / or any
document or information incorporated by reference into this
Announcement will not be provided unless such a request is
made.
RIGHT TO SWITCH TO A TAKEOVER OFFER
Amgen reserves the right to elect to implement the Acquisition
by way of a Takeover Offer for the entire issued and to be issued
ordinary share capital of the Company as an alternative to the
Scheme, subject to the provisions of the Irish Takeover Rules and
the Transaction Agreement and with the Irish Takeover Panel's
consent, whether or not the Scheme Document has been posted. In
such event, the Acquisition would be implemented on the same terms
(subject to appropriate amendments), so far as are applicable, as
those which would apply to the Scheme and subject to the amendments
referred to in Appendix 3 (Conditions of the Acquisition and the
Scheme) to this Announcement and in the Transaction
Agreement.
If Amgen exercises its right to implement the Acquisition by way
of a Takeover Offer as an alternative to the Scheme, subject to the
provisions of the Irish Takeover Rules and the Transaction
Agreement and with the Irish Takeover Panel's consent, such offer
would be made in compliance with applicable
U.S. Laws and regulations, including the registration
requirements of the U.S. Securities Act and the tender offer rules
under the U.S. Exchange Act and any applicable exemptions provided
thereunder.
ROUNDING
Certain figures included in this Announcement have been
subjected to rounding adjustments. Accordingly, any figures shown
for the same category presented in different tables may vary
slightly and figures shown as totals in certain tables may not be
an arithmetic aggregation of the figures that precede them.
OVERSEAS JURISDICTIONS
The release, publication or distribution of this Announcement in
or into jurisdictions other than Ireland and the
United States may be restricted by Law and therefore any
persons who are subject to the Law of any jurisdiction other than
Ireland and the United States should inform themselves
about, and observe, any applicable legal or regulatory
requirements. In particular the ability of persons who are not
resident in Ireland or
the United States, to vote their
Company Shares with respect to the Scheme at the Scheme Meeting, or
to appoint another person as proxy to vote at the Scheme Meeting on
their behalf, may be affected by the Laws of the relevant
jurisdictions in which they are located. Any failure to comply with
the applicable legal or regulatory requirements may constitute a
violation of the Laws of any such jurisdiction. To the fullest
extent permitted by applicable Law, the Company and Amgen and
persons involved in the Acquisition disclaim any responsibility or
liability for the violation of such restrictions by any person.
This Announcement has been prepared for the purpose of complying
with the Laws of Ireland and the
Irish Takeover Rules and the information disclosed may not be the
same as that which would have been disclosed if this Announcement
had been prepared in accordance with the Laws of jurisdictions
outside of Ireland.
Unless otherwise determined by Amgen or required by the Irish
Takeover Rules, and permitted by applicable Law and regulation, the
Acquisition will not be made available directly or indirectly, in,
into or from any Restricted Jurisdiction and no person may vote in
favour of the Acquisition by any use, means, instrumentality or
facilities from within a Restricted Jurisdiction or any other
jurisdiction if to do so would constitute a violation of the Laws
of that jurisdiction.
Copies of this Announcement and any formal documentation
relating to the Acquisition will not be and must not be, directly
or indirectly, mailed or otherwise forwarded, distributed or sent
in, into or from any Restricted Jurisdiction or any jurisdiction
where to do so would violate the Laws of that jurisdiction and
persons receiving such documents (including custodians, nominees
and trustees) must not mail or otherwise forward, distribute or
send them in or into or from any Restricted Jurisdiction. Doing so
may render invalid any related purported vote in respect of the
Acquisition. If the Acquisition is implemented by way of a Takeover
Offer (unless otherwise permitted by applicable Law or regulation),
the Takeover Offer may not be made, directly or indirectly, in or
into or by use of the mails or any other means, instrumentality or
facilities (including, without limitation, facsimile, email or
other electronic transmission, telex or telephone) of interstate or
foreign commerce of, or any facility of a national, state or other
securities exchange of any Restricted Jurisdiction and the Takeover
Offer will not be capable of acceptance by any such use, means,
instrumentality or facilities from within any Restricted
Jurisdiction or any other jurisdiction if to do so would constitute
a violation of the Laws of that jurisdiction.
Further details in relation to overseas shareholders will be
contained in the Proxy Statement (which will include the Scheme
Document).
RULE 2.12 – RELEVANT SECURITIES IN ISSUE
In accordance with Rule 2.12 of the Irish Takeover Rules, the
Company confirms that, as of December 9,
2022 (being the latest practicable date prior to the
publication of this Announcement), its issued ordinary share
capital is comprised of 227,346,959 ordinary shares, nominal value
$0.0001 per share (the "Ordinary
Shares") and 40,000 deferred ordinary shares of €1.00 each. The
Company has 384,366 Ordinary Shares which are held as treasury
shares. The Ordinary Shares are admitted to trading on the Nasdaq
Global Select Market under the ticker symbol "HZNP". The
International Securities Identification Number for these securities
is IE00BQPVQZ61.
The Company confirms that as of December
9, 2022, there were outstanding options to purchase up to
4,997,294 Ordinary Shares and outstanding restricted stock units
and performance stock units conferring on their holders vested or
unvested rights to convert into, or receive, up to an aggregate of
5,491,118 Ordinary Shares and incremental restricted stock units to
be issued of 2,550,000 Ordinary Shares.
APPENDIX 1
SOURCES AND BASES OF INFORMATION
1) The historical share price for the Company has been sourced
from the Nasdaq website.
2) The value of the Acquisition is based upon the Consideration
due under the terms of the Acquisition and on the basis of the
issued and to be issued ordinary share capital of the Company
referred to in paragraph 3 below.
3) The entire issued and to be issued ordinary share capital
(fully diluted share capital) of the Company as of the close of
business on December 9, 2022 (being
the last practicable date prior to the release of this
Announcement), calculated on the basis of:
a. the number of issued Shares, being 227,346,959 Company
shares, with 384,366 Ordinary Shares which are held as treasury
shares;
b. 1,909,313 issued Company PSUs;
c. 3,581,805 issued Company RSUs;
d. 2,550,000 incremental ordinary course grants to be issued by
the Company; and
e. 3,969,938 Company Shares which may be issued on or after the
date of this Announcement to satisfy the exercise of Company
Options under the treasury stock method, based on a weighted
average price of $23.95.
4) Save where otherwise stated, financial and other information
concerning the Company has been extracted from audited financial
results of the Company.
5) As of 30 September, 2022 the
Company has gross, financial debt of $2.6
billion, cash and cash equivalents of $2.1 billion, and net financial debt of
$0.5 billion.
APPENDIX 2
DEFINITIONS
The following definitions apply throughout this Announcement
unless the context otherwise requires:
"Acquirer Sub" means Pillartree Limited, a private
limited company incorporated in Ireland with registered number 730855.
"Acquirer Sub Board" means the board of directors of
Acquirer Sub. "Acquirer Sub Directors" means the members of
the Acquirer Sub Board.
"Acquisition" means the proposed offer by Acquirer Sub to
acquire the entire issued, and to be issued ordinary share capital
of the Company in accordance with the terms of the Transaction
Agreement, to be effected by means of the Scheme or, should Amgen
elect, and subject to the provisions of the Transaction Agreement
and Irish Takeover Rules and the consent of the Irish Takeover
Panel, by means of a Takeover Offer, and, where the context admits
any subsequent revision, variation, extension or renewal
thereof.
"Acting in Concert" has the meaning given to that term in
the Irish Takeover Panel Act.
"Affiliate" means, in relation to any Person, any other
Person that, directly or indirectly, controls, is controlled by, or
is under common control with, such first person (as used in this
definition, "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of management or
policies of a Person, whether through the ownership of securities
or partnership or other ownership interests, by Contract or
otherwise and the terms "controlled" and "controlling" shall have
correlative meanings).
"Amgen" means Amgen Inc., a Delaware corporation. "Amgen Board"
means the board of directors of Amgen.
"Amgen Common Stock" means shares of common stock,
$0.0001 par value, of Amgen.
"Amgen Directors" means the members of the Amgen Board.
"Amgen Group" means Amgen and its Subsidiaries.
"Amgen Parties" means Amgen and Acquirer Sub and
"Amgen Party" means either Amgen or Acquirer Sub (as
the context requires).
"Amgen Related Parties" has the meaning ascribed to it in
the Transaction Agreement.
"Announcement" means this Announcement issued pursuant to
Rule 2.7 of the Irish Takeover Rules for the purposes of the
Acquisition.
"Antitrust Laws" means the Sherman Act of 1890, the
Clayton Act of 1914, the Federal Trade Commission Act of 1914, the
HSR Act and all other federal, state and foreign applicable Laws in
effect from time to time that are designed or intended to prohibit,
restrict or regulate actions having the purpose or effect of
monopolization or restraint of trade.
"Burdensome Condition" has the meaning ascribed to it in
the Transaction Agreement.
"Business Day" means any day, other than a Saturday,
Sunday or a day on which banks in Ireland or in New
York are authorised or required by applicable Laws to be
closed.
"Change of Recommendation Termination" has the meaning
ascribed to it in the Transaction Agreement.
"Citigroup" means Citigroup Global Markets Inc.
"Combined Group" means the enlarged group following
Completion comprising the Amgen Group and the Company Group.
"Clearances" means all consents, clearances, approvals,
permissions, licenses, variances, exemptions, authorizations,
acknowledgements, permits, nonactions, Orders and waivers to be
obtained from, and all registrations, applications, notices and
filings to be made with or provided to, any Governmental Entity in
connection with the implementation of the Scheme or the
Acquisition.
"Company" means Horizon Therapeutics plc, an Irish public
limited company with registered number 507678.
"Company Alternative Proposal" means any bona fide
proposal or offer (including non- binding proposals or offers) from
any Person or Group, other than Amgen, its controlled Affiliates or
any of its Concert Parties, relating to any (i) direct or indirect
acquisition (whether in a single transaction or a series of related
transactions) of assets of the Company or any of its Subsidiaries
(including equity securities of Subsidiaries) equal to 20% or more
of the consolidated assets of the Company, or to which 20% or more
of the revenues or earnings of the Company on a consolidated basis
are attributable for the most recent fiscal year for which audited
financial statements are then available, (ii) direct or indirect
acquisition (including by scheme of arrangement or takeover offer)
or issuance (whether in a single transaction or a series of related
transactions) of 20% or more of any class of equity or voting
securities of the Company, (iii) scheme of arrangement, tender
offer, takeover offer or exchange offer that, if consummated, would
result in a Person or Group beneficially owning 20% or more of any
class of equity or voting securities of the Company, or (iv) scheme
of arrangement, merger, consolidation, share exchange, business
combination, joint venture, reorganization, recapitalization or
similar transaction involving the Company or any of its
Subsidiaries, under which a Person or Group, or, in the case of
clause (B) below, the shareholders or equityholders of any Person
or Group would, directly or indirectly, (A) acquire assets equal to
20% or more of the consolidated assets of the Company, or to which
20% or more of the revenues or earnings of the Company on a
consolidated basis are attributable for the most recent fiscal year
for which audited financial statements are then available, or (B)
immediately after giving effect to such transactions, beneficially
own 20% or more of any class of equity or voting securities of the
Company or the surviving or resulting Person (including any parent
Person) in such transaction.
"Company Approval Time" means the time of the receipt of
the Company Shareholder Approval.
"Company Board" means the board of directors of the
Company.
"Company Board Recommendation" means the unanimous
recommendation of the Company Board that the Company Shareholders
vote to approve the Scheme Meeting Resolution and the Required EGM
Resolutions (or if Acquirer Sub effects the Acquisition as a
Takeover Offer, the unanimous recommendation of the Company Board
that Company Shareholders accept the Takeover Offer).
"Company Breach Termination" means termination of the
Transaction Agreement and the Acquisition (and any transactions
contemplated by the Transaction Agreement) by Amgen if the Company
shall have breached or failed to perform in any material respect
any of its covenants or other agreements contained in the
Transaction Agreement or if any of its representations or
warranties set out in the Transaction Agreement are inaccurate,
which breach, failure to perform or inaccuracy (1) would result in
a failure of Condition 4.2 or Condition 4.3 and (2) is not
reasonably capable of being cured by the End Date or, if curable,
is not cured by the earlier of (x) the End Date and (y) 30 days
following written notice by Amgen thereof.
"Company Change of Recommendation" means the Company's
(i) withholding, withdrawal or qualification, amendment or
modification in any manner adverse to Amgen, the Company Board
Recommendation, if applicable, (ii) failure to include the Company
Board Recommendation in the Scheme Document or the Proxy
Statement,
(iii) recommending, adopting or approving or publicly proposing
to recommend, adopt or approve any Company Alternative Proposal or
(iv) failure to reaffirm the Company Board Recommendation in a
statement complying with Rule 14d-9 or Rule 14e-2(a) under the
Exchange Act with regard to a Company Alternative Proposal or in
connection with such action by the close of business on the 10th
Business Day after the commencement of such Company Alternative
Proposal under Rule 14d-9 or Rule 14e-2(a).
"Company Directors" means the members of the Company
Board.
"Company Disclosure Schedule" has the meaning ascribed to
that term in the Transaction Agreement.
"Company Equity Awards" means the Company Options, the
Company RSU Awards and the Company PSU Awards.
"Company Equity Award Holders" means the holders of the
Company Equity Awards. "Company Group" means the Company and
its Subsidiaries.
"Company Intervening Event" means any
material event, fact, change, effect, development or occurrence
arising or occurring after the date of the Transaction Agreement
and prior to the Company Approval Time that (i) was not known or
reasonably foreseeable, or the material consequences of which were
not known or reasonably foreseeable, in each case to the Company
Board as of or prior to the date of the Transaction Agreement, and
(ii) does not relate to (a) any Company Alternative Proposal or
consequence thereof, (b) Amgen or any of its Subsidiaries, or (c)
any change in the market price or trading volume of the Company
Shares or the fact that the Company meets or exceeds any internal
or analysts' expectations or projections of the results of
operations of the Company Group (it being understood that the
underlying causes of such change or fact shall not be excluded by
this clause (c)).
"Company Material Adverse Effect" means any event,
change, effect, development or occurrence that, individually or
together with any other event, change, effect, development or
occurrence, (a) would prevent, materially delay or materially
impair the ability of the Company to consummate the Acquisition or
(b) has had or would reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), business,
assets, liabilities or results of operations of the Company Group,
taken as a whole; provided that, solely for the purposes of
clause (b), no event, change, effect, development or occurrence to
the extent resulting from or arising out of any of the following
shall be deemed to constitute a Company Material Adverse Effect or
shall be taken into account in determining whether there has been,
or would reasonably be expected to be, a Company Material Adverse
Effect: (i) any decline in the market price or change in trading
volume of the Company Shares; (ii) any event, change, effect,
development or occurrence directly resulting from the announcement
or pendency of the Transactions (other than for purposes of any
representation or warranty contained in Section 6.1(u)(ii) and
Section 6.1(v) of the Transaction Agreement but subject to
corresponding disclosures in the Company Disclosure Schedule);
(iii) any event, change, effect, development or occurrence in the
industries and jurisdictions in which the Company Group operates or
in the U.S. or global economy generally or other general business,
financial or market conditions in the U.S. or globally, except in
each case to the extent that the Company Group, taken as a whole,
is adversely affected disproportionately relative to the other
participants in such industries or the U.S. or the global economy
generally, as applicable, and then only to the extent of such
disproportionate impact; (iv) any event, change, effect,
development or occurrence arising directly or indirectly from or
otherwise relating to fluctuations in the value of any currency,
except to the extent that the Company Group, taken as a whole, is
adversely affected disproportionately relative to the other
participants in such industries or the economy generally, as
applicable, and then only to the extent of such disproportionate
impact; (v) any event, change, effect, development or occurrence
arising directly or indirectly from or otherwise relating to any
act of terrorism, war, national or international calamity or any
other similar event (other than cyberattacks), except to the extent
that such event, circumstance, change or effect disproportionately
affects the Company Group, taken as a whole, relative to other
participants in the industries in which the Company Group operates
or in the U.S. or global economy generally, as applicable, and then
only to the extent of such disproportionate impact; (vi) any
epidemic, pandemic (including COVID-19), disease outbreak or other
public health-related event, hurricane, tornado, flood, earthquake,
tsunamis, tornadoes, mudslides, fires or other natural disaster or
other force majeure event, or the escalation or worsening thereof,
except to the extent that the Company Group, taken as a whole, is
adversely affected disproportionately relative to other
participants in the industries in which the Company Group operates
or in the U.S. or global economy generally, as applicable, and then
only to the extent of such disproportionate impact; (vii) the
failure of any member of the Company Group to meet internal or
analysts' expectations or projections of the results of operations
of the Company Group; (viii) any adverse effect arising directly
from or otherwise directly relating to any action taken by the
Company Group at the written direction of Amgen or any action
specifically required pursuant to the terms of the Transaction
Agreement to be taken by the Company (except for any obligation to
operate in the ordinary course of business); (ix) any event,
change, effect, development or occurrence arising directly or
indirectly from or otherwise relating to any change in, or any
compliance with, any applicable Laws or GAAP (or interpretations of
any applicable Laws or GAAP), except to the extent that the Company
Group, taken as a whole, is adversely affected disproportionately
relative to the other participants in such industries or the U.S.
or global economy generally, as applicable, and then only to the
extent of such disproportionate impact; or (x) any FDA or similar
(in the U.S. or globally) regulatory, manufacturing, safety or
clinical event, change, effect, development or occurrence relating
to any Company Product (but excluding the loss of any manufacturing
license or the loss of marketing authorisation for any Company
Product); it being understood that the exceptions in clauses (i)
and (vii) shall not prevent or otherwise affect a determination
that the underlying cause of any such decline or failure referred
to therein (if not otherwise expressly excluded under any of the
exceptions provided by clauses (ii) through (vi) or (viii) through
(x) hereof) is a Company Material Adverse Effect.
"Company Options" means all options to purchase Company
Shares granted pursuant to Company Share Plans.
"Company Products" means all products or product
candidates that are being researched, tested, developed,
commercialized, manufactured, sold or distributed by any member of
the Company Group and all products or product candidates, if any,
with respect to which any member of the Company Group has royalty
rights.
"Company PSU Awards" means all restricted stock units
payable in Company Shares or whose value is determined with
reference to the value of Company Shares with performance- based
vesting or delivery requirements granted pursuant to the Company
Share Plans.
"Company Related Parties" has the meaning ascribed to it
in the Transaction Agreement.
"Company RSU Awards" means all restricted stock units
payable in Company Shares or whose value is determined with
reference to the value of Company Shares granted pursuant to the
Company Share Plans other than any Company PSU Award.
"Company Share Award" means the Company PSU Awards and
the Company RSU Awards.
"Company Share Plans" means, collectively, the 2011
Equity Incentive Plan, as amended, the Amended and Restated 2014
Equity Incentive Plan, the 2014 Non-Employee Equity Plan, as
amended, the Amended and Restated 2018 Equity Incentive Plan, the
2020 Employee Share Purchase Plan, and the Amended and Restated
2020 Equity Incentive Plan, as amended, including any sub-plans
thereto.
"Company Shareholder Approval" means (i) the approval of
the Scheme by a majority in number of members of each class of the
Company Shareholders (including as may be directed by the Irish
High Court pursuant to Section 450(5) of the Irish Companies Act)
representing, at the Voting Record Time, at least 75% in value of
the Company Shares of that class held by the Company Shareholders
who are members of that class and that are present and voting
either in person or by proxy, at the Scheme Meeting (or at any
adjournment or postponement of such meeting) and (ii) the Required
EGM Resolutions being duly passed by the requisite majorities of
the Company Shareholders at the EGM (or at any adjournment or
postponement of such meeting).
"Company Shareholders" means the registered holders of
Company Shares.
"Company Shares" means the ordinary shares of the
Company, nominal value $0.0001 per
share.
"Company Superior Proposal" means any bona fide, written
Company Alternative Proposal (with all references to "20%" in the
definition of the Company Alternative Proposal being deemed to be
references to "50%") on terms that the Company Board determines in
good faith, after consultation with its financial advisor and
outside legal counsel, (a) is more favorable to the Company
Shareholders (in their capacity as such) from a financial point of
view than the Acquisition and (b) is reasonably expected to be
consummated in accordance with its terms, in the case of each of
clauses (a) and (b), taking into account all the financial, legal,
regulatory and other terms and conditions of the Company
Alternative Proposal that the Company Board considers to be
appropriate (including the expected timing of consummation, any
governmental or other approval requirements, and availability of
necessary financing).
"Completion" means the completion of the Acquisition.
"Completion Date" means the date of the completion of the
Acquisition.
"Concert Parties" means such Persons as are deemed to be
Acting in Concert with Amgen pursuant to Rule 3.3 of Part A of the
Irish Takeover Rules.
"Conditions" means the conditions to the Scheme and the
Acquisition set out in Appendix 3 (Conditions of the Acquisition
and the Scheme) of this Announcement and to be set out in the
Scheme Document, and "Condition" means any one of the
Conditions.
"Confidentiality Agreement" means the confidentiality
agreement between the Company and Amgen dated November 18, 2022.
"Consideration" means $116.50 in cash per Company Share.
"Court Order" means the Order or Orders of the Irish High
Court sanctioning the Scheme under Section 453 of the Irish
Companies Act.
"DTC" means the relevant system to facilitate the
transfer of title to shares in uncertificated form in respect of
which the Depository Trust & Clearing Corporation is the
operator.
"Effective Date" means the date on which the Scheme
becomes effective in accordance with its terms or, if the
Acquisition is implemented by way of a Takeover Offer, the date on
which the Takeover Offer has become (or has been declared)
unconditional in all respects in accordance with the provisions of
the Takeover Offer Document and the Irish Takeover Rules.
"Effective Time" means the time on the Effective Date at
which the Court Order is delivered to the Registrar of Companies
or, if the Acquisition is implemented by way of a Takeover Offer,
the time on the Effective Date at which the Takeover Offer becomes
(or is declared) unconditional in all respects in accordance with
the provisions of the Takeover Offer Documents and the Irish
Takeover Rules.
"EGM" means the extraordinary general meeting of the
Company Shareholders (and any adjournment or postponement thereof)
to be convened in connection with the Scheme, expected to be held
as soon as the preceding Scheme Meeting shall have been concluded
(it being understood that if the Scheme Meeting is adjourned or
postponed, the EGM shall be correspondingly adjourned or
postponed).
"EGM Resolutions" means, collectively, the following
resolutions to be proposed at the EGM: (i) an ordinary resolution
to approve the Scheme and to authorise the Company Board to take
all such action as it considers necessary or appropriate to
implement the Scheme and (ii) a special resolution amending the
Company Memorandum and Articles of Association in accordance with
Section 4.3 of the Transaction Agreement (the resolutions described
in the foregoing clauses (i) and (ii), the "Required EGM
Resolutions"); (iii) an ordinary resolution that any motion
by the chairperson of the Company Board to adjourn or postpone the
EGM, or any adjournments or postponements thereof, to another time
and place if necessary or appropriate to solicit additional proxies
if there are insufficient votes at the time of the EGM to approve
the Scheme or any of the Required EGM Resolutions to be approved;
and (iv) any other resolutions as the Company reasonably determines
to be (A) required under applicable Laws or (B) otherwise necessary
or desirable for the purposes of implementing the Acquisition as
have been approved by Amgen (such approval not to be unreasonably
withheld, conditioned or delayed).
"End Date" means June 12,
2023; provided, however, that in the event that on
the original End Date, one or more of paragraphs 3.1, 3.2 or 3.3 of
the Conditions (with respect to paragraph 3.3, only if the failure
of such Condition to have been satisfied as of such date is an
Order or Law under any Antitrust Law or Foreign Investment Law in
connection with or in respect of any matter involving Antitrust Law
or Foreign Investment Law) have not been satisfied, and on such
date, all of the other Conditions (other than (a) the paragraphs
2.3 and 2.4 of the Conditions or (b) any other Condition that by
its nature can only be satisfied on the Sanction Date or, in the
alternative to (a) and (b) where the Acquisition is implemented by
Takeover Offer, any other condition that by its nature can only be
satisfied by no later than the latest date upon which the Takeover
Offer may be declared unconditional in all respects) have been
satisfied or waived (or remain capable of being satisfied or
waived), then the End Date shall be automatically extended without
further action by the Parties until September 12, 2023 (the "First Extended End
Date") (and in the case of such extension, any reference to the
End Date in the Transaction Agreement shall be a reference to the
First Extended End Date); provided, further, that in the event that
on the First Extended End Date, one or more of the paragraphs 3.1,
3.2 or 3.3 of the Conditions (with respect to paragraph 3.3, only
if the failure of such Condition to have been satisfied as of such
date is an Order or Law under any Antitrust Law or Foreign
Investment Law in connection with or in respect of any matter
involving Antitrust Law or Foreign Investment Law) have not been
satisfied, and on such date, all of the other Conditions (other
than (a) the Conditions set out in paragraphs 2.3 and 2.4 of the
Conditions or (b) any other Condition that by its nature can only
be satisfied on the Sanction Date or, in the alternative to (a) and
(b) where the Acquisition is implemented by Takeover Offer, any
other condition that by its nature can only be satisfied by no
later than the latest date upon which the Takeover Offer may be
declared unconditional in all respects) have been satisfied or
waived (or remain capable of being satisfied or waived), then the
First Extended End Date shall be automatically extended without
further action by the Parties until December
12, 2023 (the "Second Extended End Date") (and in the
case of such extension, any reference to the End Date in the
Transaction Agreement shall be a reference to the Second Extended
End Date).
"Foreign Investment Laws" means all applicable Laws
(other than Antitrust Laws) in effect from time to time that are
designed or intended to prohibit, restrict or regulate actions by
foreigners to acquire interests in or control over domestic
equities, securities, entities, assets, land or other holdings for
reasons of national security or other public policy.
"GAAP" means U.S. generally accepted accounting
principles.
"Government Official" means (i) any official, officer,
employee, or representative of, or any Person acting in an official
capacity for or on behalf of, any Governmental Entity, (ii) any
political party, party official or candidate for political office
or (iii) any company, business, enterprise or other entity owned or
controlled by any Person described in the foregoing clause (i) or
(ii) of this definition.
"Governmental Entity" means any United States, Irish or other foreign or
supranational, federal, state or local governmental commission,
board, body, division, ministry, political subdivision, bureau or
other regulatory authority or agency, including courts and other
judicial bodies, or any competition, antitrust, foreign investment
or supervisory body, central bank, public international
organization or other governmental, trade or regulatory agency or
body, securities exchange or any self-regulatory body or authority,
including any instrumentality or entity designed to act for or on
behalf of the foregoing, in each case, in any jurisdiction,
including, the Irish Takeover Panel, the Irish High Court and the
SEC.
"HSR Act" means the United States Hart-Scott-Rodino
Antitrust Improvements Act of 1976.
"Irish Companies Act" means the Companies Act 2014 of
Ireland, all enactments which are
to be read as one with, or construed or read together as one with,
the Companies Act 2014 and every statutory modification and
re-enactment thereof for the time being in force.
"Irish High Court" means the High Court of Ireland.
"Irish Registrar of Companies" means the Registrar of
Companies in Dublin, Ireland.
"Irish Takeover Panel Act" means the Irish Takeover Panel
Act 1997.
"Irish Takeover Rules" means the Irish Takeover Panel Act
1997, Takeover Rules, 2022.
"Law" means any federal, state, local, foreign or
supranational law, statute, ordinance, rule, regulation, judgment,
order, injunction, decree, executive order or agency requirement of
any Governmental Entity.
"Nasdaq" means the Nasdaq Global Select Market, or any
successor stock market or exchange operated by Nasdaq, Inc., or any
successor thereto.
"Non Approval Termination" means has the meaning ascribed
to it in the Transaction Agreement.
"Order" means any order, writ, decree, judgment, award,
injunction, ruling, settlement or stipulation issued, promulgated,
made, rendered or entered into by or with any Governmental Entity
or arbitrator (in each case, whether temporary, preliminary or
permanent).
"Parties" means the Company and the Amgen Parties and
"Party" means either the Company, on the one hand, or
Amgen or the Amgen Parties (whether individually or collectively),
on the other hand (as the context requires).
"Person" means any individual, corporation, partnership,
limited liability company, association, trust or other entity or
organization, including a government or political subdivision or an
agency or instrumentality of such government or political
subdivision.
"PJT Partners" means PJT Partners LP.
"Proxy Statement" means the proxy statement to be sent to
the Company Shareholders in connection with the matters to be
submitted at the Scheme Meeting and the EGM (such proxy statement,
as amended or supplemented).
"Required Non-U.S. Jurisdiction" means (a) with respect
to filings and notices under applicable Antitrust Laws,
Germany and Austria and (b) with respect to filings and
notices under applicable Foreign Investment Laws, France, Germany, Denmark and Italy.
"Restricted Jurisdiction" means any jurisdiction where it
would be unlawful to send or make available information concerning
the Acquisition to Company Shareholders.
"Sanction Date" means the date on which the Condition in
paragraph 2.3 of Appendix 3 (Conditions of the Acquisition and
the Scheme) of this Announcement is satisfied.
"Scheme" means the proposed scheme of arrangement under
Chapter 1 of Part 9 of the Irish Companies Act to effect the
Acquisition pursuant to the Transaction Agreement, on such terms
and in such form as is consistent with the terms agreed to by the
Parties as set out in this Announcement and to be set out in the
Scheme Document, including any revision thereof as may be agreed
between the Parties in writing, and, if required, by the Irish High
Court.
"Scheme Document" means a document (or relevant sections
of the Proxy Statement) (including any amendments or supplements
thereto) to be distributed to Company Shareholders and, for
information only, to the Company Equity Award Holders containing
(i) the Scheme, (ii) the notice or notices of the Scheme Meeting
and EGM, (iii) an explanatory statement as required by Section 452
of the Irish Companies Act with respect to the Scheme, (iv) such
other information as may be required or necessary pursuant to the
Irish Companies Act, the U.S. Exchange Act or the Irish Takeover
Rules and (v) such other information as the Company and Amgen shall
agree.
"Scheme Meeting" means the meeting or meetings of the
Company Shareholders or, if applicable, the meeting or meetings of
any class or classes of Company Shareholders (and, in each case,
any adjournment or postponement thereof) convened by order of the
Irish High Court pursuant to Section 450 of the Irish Companies Act
to consider and, if thought fit, approve the Scheme (with or
without amendment).
"Scheme Meeting Resolution" means the resolution to be
proposed at the Scheme Meeting for the purposes of approving and
implementing the Scheme.
"Scheme Record Time" means time specified as the scheme
record time in the Scheme Document.
"SEC" means the United States Securities and Exchange
Commission.
"Subsidiary" means, with respect to any Person, any
entity of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors
or other persons performing similar functions are directly or
indirectly owned by such Person. For purposes of the Transaction
Agreement, a Subsidiary shall be considered a "wholly owned
Subsidiary" of a Person if such Person directly or indirectly owns
all of the securities or other ownership interests (excluding any
securities or other ownership interests held by an individual
director or officer required to hold such securities or other
ownership interests pursuant to applicable Laws) of such
Subsidiary.
"Superior Proposal Termination" has the meaning ascribed
to it in the Transaction Agreement.
"Takeover Offer" means an offer in accordance with
Section 3.6 of the Transaction Agreement for the entire issued
share capital of the Company (other than any Company Shares
beneficially owned by Amgen or Acquirer Sub and any Company Shares
held by any member of the Company Group) including any amendment or
revision thereto pursuant to the Transaction Agreement, the full
terms of which would be set out in the Takeover Offer Document or
(as the case may be) any revised offer documents.
"Takeover Offer Document" means, if, following the date
of the Transaction Agreement, Amgen elects to implement the
Acquisition by way of the Takeover Offer in accordance with Section
3.6 of the Transaction Agreement, the document to be sent to the
Company Shareholders and others jointly by Amgen and Acquirer Sub
containing, among other things, the Takeover Offer, the Conditions
(except as Amgen determines pursuant to and in accordance with
Section 3.6 of the Transaction Agreement not to be appropriate in
the case of a Takeover Offer) and certain information about Amgen,
Acquirer Sub and the Company and, where the context so requires,
includes any form of acceptance, election, notice or other document
reasonably required in connection with the Takeover Offer.
"Transaction Agreement" means the Transaction Agreement
dated December 11, 2022 by and among
Amgen, Acquirer Sub and the Company, as the same may be amended
from time to time.
"Transactions" means the transactions contemplated by the
Transaction Agreement, including the Acquisition.
"U.S. Exchange Act" means the United States Securities
Exchange Act of 1934, and the rules and regulations promulgated
thereunder.
"U.S. Securities Act" means the United States Securities
Act of 1933.
"Voting Record Time" means the date and time specified in
the Scheme Document by which entitlement to vote at the Scheme
Meeting will be determined.
References to "dollars" and "$" means U.S. dollars.
References to any applicable Law shall be deemed to refer to
such applicable Law as amended from time to time and to any rules
or regulations promulgated thereunder.
Any singular term in this Announcement shall be deemed to
include the plural, and any plural term the singular, and
references to any gender shall include all genders.
APPENDIX 3
CONDITIONS OF THE ACQUISITION AND THE
SCHEME
The Acquisition and the Scheme will comply with the Irish
Takeover Rules and, where relevant, the rules and regulations of
the U.S. Exchange Act, the Irish Companies Act and the Nasdaq, and
are subject to the terms and conditions set out in this
Announcement and to be set out in the Scheme Document.
The Acquisition and the Scheme are, to the extent required by
the Laws of Ireland, governed by
the Laws of Ireland.
The Acquisition and the Scheme will be subject to the conditions
set out in this Appendix 3 (Conditions of the Acquisition and
the Scheme).
1 The Acquisition will be conditional upon the Scheme becoming
effective and unconditional by not later than the End Date (or such
earlier date as may be specified by the Irish Takeover Panel, or
such later date as the Amgen Parties and the Company may, subject
to receiving the consent of the Irish Takeover Panel and the Irish
High Court, in each case if required, agree).
2 The Scheme will be conditional upon:
2.1 the Scheme having been approved by a majority in number of
the Company Shareholders (including as may be directed by the Irish
High Court pursuant to Section 450(5) of the Irish Companies Act)
present and voting either in person or by proxy at the Scheme
Meeting (or at any adjournment or postponement of such meeting)
representing, at the Voting Record Time, at least 75% in value of
the Company Shares held by such Company Shareholders present and
voting either in person or by proxy at the Scheme Meeting;
2.2 each of the Required EGM Resolutions having been duly passed
by the requisite majority of Company Shareholders at the EGM (or at
any adjournment or postponement of such meeting);
2.3 the Irish High Court having sanctioned (without material
modification) the Scheme pursuant to Sections 449 to 455 of the
Irish Companies Act (the date on which the condition in this
paragraph 2.3 is satisfied, the "Sanction Date"); and
2.4 a copy of the Court Order having been delivered for
registration to the Irish Registrar of Companies within 21 days of
the Sanction Date.
3 The Amgen Parties and the Company have agreed that, subject to
paragraph 6, the Scheme and the Acquisition will also be
conditional upon the following matters having been satisfied or
waived on or before the Sanction Date:
3.1 the waiting period (and any extension thereof) applicable to
the Acquisition under the HSR Act shall have expired or been
earlier terminated;
3.2 all applicable waiting periods having expired, lapsed or
been terminated or Clearances obtained (as appropriate), in each
case in connection with the Acquisition, under (a) the applicable
Antitrust Laws of each of Germany
and Austria and (b) the applicable
Foreign Investment Laws of France,
Germany, Denmark and Italy;
3.3 there shall not have been issued by any court of competent
jurisdiction and remain in effect any temporary restraining order,
preliminary or permanent injunction or other Order preventing the
consummation of the Acquisition, nor shall any Law or Order (other
than any Antitrust Laws or Foreign Investment Laws of any
jurisdiction that is not (a) a Required Non-U.S. Jurisdiction or
(b) under the HSR Act) promulgated, entered, enforced, enacted,
issued or deemed applicable to the Acquisition by any Governmental
Entity which (i) directly or indirectly prohibits the consummation
of the Acquisition or (ii) imposes any Burdensome Condition;
provided however, that Amgen and Acquirer Sub shall not be
permitted to invoke this paragraph 3.3 unless they shall have
otherwise taken all actions required under the Transaction
Agreement to have any such Order lifted; and
3.4 the Transaction Agreement not having been terminated in
accordance with its terms by the applicable Party or Parties.
4 The Amgen Parties and the Company have agreed that, subject to
paragraph 6, the Amgen Parties' obligation to effect the Scheme and
the Acquisition will also be conditional upon the following matters
having been satisfied (or, to the extent permitted by applicable
Laws, waived by the Amgen Parties) on or before the Sanction
Date:
4.1 from the date of the Rule 2.7 Announcement to the Sanction
Date, there having not been any event, change, effect, development
or occurrence that has had, or would reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse
Effect and that is continuing;
4.2 (a) each of the representations and warranties of the
Company set out in Sections 6.1(a) (Qualification, Organization,
Subsidiaries, etc.), 6.1(b) (Subsidiaries), 6.1(u)
(Corporate Authority Relative to the Transaction Agreement)
and 6.1(y) (Brokers and Other Advisors) of the Transaction
Agreement having been true and correct in all material respects at
and as of the date of the Transaction Agreement and at and as of
the Sanction Date as though made at and as of the Sanction Date (in
each case except to extent that any such representation and
warranty speaks as of a particular date, in which case such
representation and warranty shall have been true and correct in all
material respects as of such particular date), (b) the
representations and warranties of the Company set out in Section
6.1(c) (Capitalization) of the Transaction Agreement having
been true and correct in all respects at and as of the date of the
Transaction Agreement and at and as of the Sanction Date as though
made at and as of the Sanction Date except for de minimis
inaccuracies, (c) the representations and warranties of the Company
set out in Section 6.1(e)(i) (Absence of Changes) of the
Transaction Agreement having been true and correct in all respects
at and as of the date of the Transaction Agreement and at and as of
the Sanction Date as though made at and as of the Sanction Date and
(d) each of the other representations and warranties of the Company
having been true and correct (without any qualification as to
materiality or the Company Material Adverse Effect therein) in all
respects at and as of the date of the Transaction Agreement and at
and as of the Sanction Date as though made at and as of the
Sanction Date (in each case except to the extent that any such
representation and warranty speaks as of a particular date, in
which case such representation and warranty shall have been true
and correct as of such particular date), except for such failures
to be true and correct as have not had and would not reasonably be
expected to have, individually or in the aggregate, a Company
Material Adverse Effect;
4.3 the Company having performed and complied, in all material
respects, with all of the covenants and agreements that the
Transaction Agreement requires the Company to perform or comply
with prior to the Sanction Date; and
4.4 Amgen having received a certificate from an executive
officer of the Company confirming the satisfaction of the
conditions set out in paragraphs 4.2 and 4.3.
5 The Amgen Parties and the Company have agreed that, subject to
paragraph 6, the Company's obligation to effect the Scheme and the
Acquisition will also be conditional upon the following matters
having been satisfied (or, to the extent permitted by applicable
Laws, waived by the Company) on or before the Sanction Date:
5.1 (a) each of the representations and warranties of the Amgen
Parties set out in Sections 6.2(a) (Qualification and
Organization) and 6.2(b) (Corporate Authority Relative to
the Transaction Agreement) of the Transaction Agreement having
been true and correct in all material respects at and as of the
date of the Transaction Agreement and at and as of the Sanction
Date as though made at and as of the Sanction Date (in each case
except to the extent that any such representation and warranty
speaks as of a particular date, in which case such representation
and warranty shall have been true and correct in all material
respects as of such particular date), and (b) each of the other
representations and warranties of the Amgen Parties set out in
Section 6.2 of the Transaction Agreement having been true and
correct (read for purposes of this paragraph 5.1(b) without any
qualification as to materiality or Amgen Material Adverse Effect
therein) in all respects at and as of the date of the Transaction
Agreement and at and as of the Sanction Date as though made at and
as of the Sanction Date (in each case except to the extent that any
such representation and warranty speaks as of a particular date, in
which case such representation and warranty shall have been true
and correct in all respects as of such particular date), except for
such failures to be true and correct as have not had and would not
reasonably be expected to have, individually or in the aggregate,
an Amgen Material Adverse Effect;
5.2 the Amgen Parties having performed and complied, in all
material respects, with all of the covenants and agreements that
the Transaction Agreement requires either of the Amgen Parties to
perform or comply with prior to the Sanction Date; and
5.3 the Company having received a certificate from an executive
officer of Amgen confirming the satisfaction of the conditions set
out in paragraphs 5.1 and 5.2.
6 Subject to the requirements of the Irish Takeover Panel:
6.1 the Amgen Parties, on one hand, and the Company, on the
other hand, reserve the right (but in no event shall any Party be
under any obligation) to waive (to the extent permitted by
applicable Laws), in whole or in part, all or any of the conditions
in paragraph 3 (provided that no such waiver shall be effective
unless agreed to by both Parties);
6.2 Amgen reserves the right (but shall be under no obligation)
to waive (to the extent permitted by applicable Laws), in whole or
in part, all or any of the conditions in paragraph 4; and
6.3 the Company reserves the right (but shall be under no
obligation) to waive (to the extent permitted by applicable Laws),
in whole or in part, all or any of the conditions in paragraph
5.
7 The Scheme will lapse unless it is effective on or prior to
the End Date (or such later date as the Amgen Parties and the
Company may, subject to receiving the consent of the Irish Takeover
Panel and the Irish High Court, in each case if required,
agree).
8 If Amgen is required to make an offer for the Company Shares
under the provisions of Rule 9 of the Irish Takeover Rules, Amgen
may make such alterations to any of the Conditions set out in
paragraphs 1, 2, 3, 4 and 5 above as are necessary to comply with
the provisions of that rule.
9 Amgen reserves the right, subject to the prior written consent
of the Irish Takeover Panel, to effect the Acquisition by way of a
Takeover Offer in the circumstances described in and subject to the
terms of Section 3.6 of the Transaction Agreement. Without limiting
Section 3.6 of the Transaction Agreement, in the event the
Acquisition is structured as a Takeover Offer, such Takeover Offer
will be implemented on terms and conditions that are at least as
favorable to the Company Shareholders and the Company Equity Award
Holders as those which would apply in relation to the Scheme
(except for an acceptance condition set at 80% of the nominal value
of the Company Shares to which such an offer relates (and which are
not already in the beneficial ownership of Amgen)).
APPENDIX 4
TRANSACTION AGREEMENT
Execution Version
TRANSACTION AGREEMENT
dated as of December
11, 2022
among
AMGEN INC.
PILLARTREE LIMITED
and
HORIZON THERAPEUTICS PLC
TABLE OF
CONTENTS
|
|
|
|
Page
|
SECTION 1.
|
INTERPRETATION
|
1
|
1.1
|
Definitions
|
1
|
1.2
|
Construction
|
20
|
SECTION 2.
|
RULE 2.7 ANNOUNCEMENT
AND SCHEME DOCUMENT
|
21
|
2.1
|
Rule 2.7
Announcement
|
21
|
2.2
|
The Scheme
|
22
|
2.3
|
Change in
Shares
|
23
|
2.4
|
Company Equity Award
Holder Proposal
|
23
|
SECTION 3.
|
IMPLEMENTATION OF THE
SCHEME
|
23
|
3.1
|
Responsibilities of the
Company in Respect of the Scheme
|
23
|
3.2
|
Responsibilities of
Parent and Acquirer Sub in Respect of the Scheme
|
27
|
3.3
|
Mutual Responsibilities
of the Parties
|
28
|
3.4
|
Dealings with the Irish
Takeover Panel
|
28
|
3.5
|
No Scheme Amendment by
the Company
|
30
|
3.6
|
Switching to a Takeover
Offer
|
31
|
SECTION 4.
|
EQUITY
AWARDS
|
33
|
4.1
|
The Company Equity
Awards
|
33
|
4.2
|
Further
Actions
|
34
|
4.3
|
Amendment of
Articles
|
34
|
SECTION 5.
|
THE COMPANY
CONDUCT
|
34
|
5.1
|
Conduct of Business by
the Company
|
34
|
5.2
|
Non-Solicitation and
Company Change of Recommendation
|
39
|
SECTION 6.
|
REPRESENTATIONS AND
WARRANTIES
|
42
|
6.1
|
Company Representations
and Warranties
|
42
|
6.2
|
Parent Representations
and Warranties
|
62
|
SECTION 7.
|
ADDITIONAL
AGREEMENTS
|
66
|
7.1
|
Access to Information;
Confidentiality; Notices of Certain Events
|
66
|
7.2
|
Consents and Regulatory
Approvals
|
68
|
7.3
|
Directors' and
Officers' Indemnification and Insurance
|
71
|
7.4
|
Employment and Benefit
Matters
|
73
|
7.5
|
Employee Share Purchase
Plan
|
75
|
TABLE OF
CONTENTS (continued)
|
|
|
|
Page
|
7.6
|
Financing
|
75
|
7.7
|
Section 16
Matters
|
77
|
7.8
|
Financing
Cooperation
|
77
|
7.9
|
Treatment of Certain
Existing Indebtedness
|
82
|
7.10
|
Transaction
Litigation
|
83
|
7.11
|
State Takeover
Statutes
|
83
|
7.12
|
Acquirer Sub
83
|
|
7.13
|
Tax Matters
|
83
|
7.14
|
Stock Exchange
Delisting; Deregistration 84
|
|
7.15
|
Filing of Form S-8;
Listing of Additional Shares
|
84
|
SECTION 8.
|
COMPLETION OF
ACQUISITION AND MERGER
|
84
|
8.1
|
Completion
|
84
|
8.2
|
Payment of
Consideration
|
85
|
8.3
|
Withholding
|
85
|
SECTION 9.
|
TERMINATION
|
86
|
9.1
|
Termination
|
86
|
9.2
|
Certain Effects of
Termination
|
88
|
SECTION 10.
|
GENERAL
|
92
|
10.1
|
Announcements
|
92
|
10.2
|
Notices
|
93
|
10.3
|
Assignment
|
95
|
10.4
|
Counterparts
|
95
|
10.5
|
Amendment
|
95
|
10.6
|
Entire
Agreement
|
95
|
10.7
|
Inadequacy of
Damages
|
95
|
10.8
|
Disclosure Schedule
References and SEC Document References
|
96
|
10.9
|
Severability
|
96
|
10.10
|
No Partnership and No
Agency
|
97
|
10.11
|
Costs and
Expenses
|
97
|
10.12
|
Governing Law and
Jurisdiction
|
97
|
10.13
|
Third Party
Beneficiaries
|
98
|
TABLE OF
CONTENTS (continued)
|
|
|
|
Page
|
10.14
|
Waiver of Claims
Against Financing Sources
|
99
|
10.15
|
Non-Survival of
Representations, Warranties, Covenants and Agreements
|
99
|
TRANSACTION AGREEMENT
This Transaction Agreement (this
"Agreement"), dated as of December 11, 2022 is by and among Amgen
Inc., a Delaware corporation
("Parent"), Pillartree Limited, a private
limited company incorporated under the laws of Ireland (with registration number: 730855)
having its registered office at 6th Floor, 2 Grand Canal Square,
Dublin 2, Ireland and a wholly owned Subsidiary of
Parent ("Acquirer Sub"), and Horizon Therapeutics
plc, a public limited company incorporated under the laws of
Ireland (with registration number
507678) having its registered office at 70 St. Stephen's Green,
Dublin 2, D02 E2X4, Ireland (the "Company").
A. Parent has agreed to make a proposal to cause Acquirer
Sub to acquire the Company on the terms set out in the Rule 2.7
Announcement;
B. This Agreement sets out certain matters relating to
the conduct of the Acquisition that have been agreed by the
Parties; and
C. The Parties intend that the Acquisition will be
implemented by way of the Scheme, although this may, subject to the
consent (where required) of the Irish Takeover Panel, be switched
to a Takeover Offer in accordance with the terms set out in this
Agreement.
Now, Therefore, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained in
this Agreement, the Parties agree as follows:
SECTION 1. INTERPRETATION
1.1 Definitions.
As used in this Agreement the following words and expressions
have the following meanings:
"Acquirer Sub" has the meaning ascribed to it in
the Preamble.
"Acquisition" means the proposed offer by Acquirer
Sub to acquire the entire issued and to be issued, ordinary share
capital of the Company in accordance with the terms of this
Agreement, to be effected by means of the Scheme or, should Parent
elect, and subject to the terms of this Agreement and the consent
of the Irish Takeover Panel (if required), by means of a Takeover
Offer, and, where the context admits, any subsequent revision,
variation, extension or renewal thereof.
"Acting in Concert" has the meaning given to that
term in the Irish Takeover Panel Act.
"Affiliate" means, in relation to any Person, any
other Person that, directly or indirectly, controls, is controlled
by, or is under common control with, such first person (as used in
this definition, "control" means the possession,
directly or indirectly, of the power to direct or cause the
direction of management or policies of a Person, whether through
the ownership of securities or partnership or other ownership
interests, by Contract or otherwise and the terms
"controlled" and "controlling" shall
have correlative meanings).
"Agreement" has the meaning ascribed to it in the
Preamble. "Alternative Financing" has the
meaning ascribed to it in Section 7.6(b).
"Anti-Corruption Laws" means the
FCPA; the Anti-Kickback Act of 1986, the UK Bribery Act of 2010,
the relevant Laws in Ireland
relating to bribery or corruption including the Criminal Justice
(Corruption Offences) Act 2018 of Ireland or any applicable Laws of similar
effect, and the related regulations and published interpretations
thereunder.
"Antitrust Laws" means the Sherman Act of 1890,
the Clayton Act of 1914, the Federal Trade Commission Act of 1914,
the HSR Act and all other federal, state and foreign applicable
Laws in effect from time to time that are designed or intended to
prohibit, restrict or regulate actions having the purpose or effect
of monopolization or restraint of trade.
"Balance Sheet" has the meaning ascribed to it in
Section 6.1(f).
"Benefits Continuation Period" has the meaning
ascribed to it in Section 7.4(a).
"Burdensome Condition" has the meaning ascribed to
it in Section 7.2(c).
"Business Day" means any day, other than a
Saturday, Sunday or a day on which banks in Ireland or in New
York are authorized or required by applicable Laws to be
closed.
"Cap" means an amount equal to one percent of the
aggregate value of the total Consideration payable with respect to
the Company Shares in connection with the Acquisition (excluding,
for clarity, any interest in such share capital of the Company held
by Parent or any Concert Parties of Parent) as ascribed by the
terms of the Acquisition as set out in the Rule 2.7
Announcement.
"Change of Recommendation Termination" has the
meaning ascribed to it in Section 9.1(a)(iii)(B).
"Claim Expenses" has the meaning ascribed to it in
Section 7.3(a).
"Clearance Date" means the Business Day next
succeeding the date upon which the later occurring of (i) the Irish
Takeover Panel confirming that (x) it has no comments on the Proxy
Statement and/or the Scheme Document or (y) its comments on the
Proxy Statement and/or the Scheme Document have been adequately
responded to or resolved and (ii) in respect of the SEC, (x) the
SEC review period has expired with no comments or (y) the SEC
confirming that its comments on the Proxy Statement have been
adequately responded to or resolved.
"Clearances" means all consents, clearances,
approvals, permissions, licenses, variances, exemptions,
authorizations, acknowledgements, permits, nonactions, Orders and
waivers to be obtained from, and all registrations, applications,
notices and filings to be made with or provided to, any
Governmental Entity in connection with the implementation of the
Scheme or the Acquisition.
"Code" means the United States Internal Revenue
Code of 1986.
"Company" has the meaning ascribed to it in the
Preamble.
"Company Alternative Proposal" means any bona fide
proposal or offer (including non- binding proposals or offers) from
any Person or Group, other than Parent, its controlled Affiliates
or any of its Concert Parties, relating to any (i) direct or
indirect acquisition (whether in a single transaction or a series
of related transactions) of assets of the Company or any of its
Subsidiaries (including equity securities of Subsidiaries) equal to
20% or more of the consolidated assets of the Company, or to which
20% or more of the revenues or earnings of the Company on a
consolidated basis are attributable for the most recent fiscal year
for which audited financial statements are then available, (ii)
direct or indirect acquisition (including by scheme of arrangement
or takeover offer) or issuance (whether in a single transaction or
a series of related transactions) of 20% or more of any class of
equity or voting securities of the Company, (iii) scheme of
arrangement, tender offer, takeover offer or exchange offer that,
if consummated, would result in a Person or Group beneficially
owning 20% or more of any class of equity or voting securities of
the Company, or (iv) scheme of arrangement, merger, consolidation,
share exchange, business combination, joint venture,
reorganization, recapitalization or similar transaction involving
the Company or any of its Subsidiaries, under which a Person or
Group or, in the case of clause (B) below, the shareholders or
equityholders of any Person or Group would, directly or indirectly,
(A) acquire assets equal to 20% or more of the consolidated assets
of the Company, or to which 20% or more of the revenues or earnings
of the Company on a consolidated basis are attributable for the
most recent fiscal year for which audited financial statements are
then available, or (B) immediately after giving effect to such
transactions, beneficially own 20% or more of any class of equity
or voting securities of the Company or the surviving or resulting
Person (including any parent Person) in such transaction.
"Company Alternative Proposal NDA" has the meaning
ascribed to it in Section 5.2(b).
"Company Approval Time" has the meaning ascribed
to it in Section 5.2(b).
"Company Board" means the board of directors of
the Company.
"Company Breach Termination" has the meaning
ascribed to it in Section 9.1(a)(iii)(A).
"Company Capitalization Date" has the meaning
ascribed to it in Section 6.1(c)(i).
"Company Change of Recommendation" has the meaning
ascribed to it in Section 5.2(a)(iii).
"Company Contracts" means a Contract of any
member of the Company Group.
"Company Credit Agreement" means the Credit
Agreement, dated as of May 7, 2015,
by and among Horizon Therapeutics USA, Inc., a Delaware corporation, the Company, the
subsidiary guarantors party thereto, the lenders party thereto from
time to time and Citibank, N.A., as Administrative Agent and
Collateral Agent (as amended by Amendment No. 1, dated as of
October 25, 2016, Amendment No. 2,
dated as of March 29, 2017, Amendment
No. 3, dated as of October 23, 2017,
Amendment No. 4, dated as of October 19,
2018, Amendment No 5., dated as of March 11, 2019, Amendment No. 6, dated as of
May 22, 2019, Amendment No. 7, dated
as of December 18, 2019, the
Incremental Amendment and Lender Joinder Agreement, dated as of
August 17, 2020 and Amendment No. 9,
dated as of March 15, 2021).
"Company Deferred Shares" means the deferred
ordinary shares of the Company, nominal value €1.00 per share.
"Company Disclosure Schedule" has the meaning
ascribed to it in Section 6.1.
"Company Employees" means the employees of the
Company or any Subsidiary of the Company as of immediately prior to
the Effective Time.
"Company Equity Award Holder Proposal" means the
proposal of Parent to the Company Equity Award Holders to be made
in accordance with this Agreement (including Section 4), Rule 15 of
the Irish Takeover Rules and the terms of the Company Share
Plans.
"Company Equity Award Holders" means the holders
of the Company Equity Awards.
"Company Equity Awards" means the Company Options,
the Company RSU Awards and the Company PSU Awards.
"Company ESPP" means the Company's 2020 Employee
Share Purchase Plan.
"Company Group" means the Company and its
Subsidiaries.
"Company Intellectual Property" means the Owned
Intellectual Property and the Licensed Intellectual Property.
"Company Intervening Event" means any material
event, fact, change, effect, development or occurrence arising or
occurring after the date of this Agreement and prior to the Company
Approval Time that (i) was not known or reasonably foreseeable, or
the material consequences of which were not known or reasonably
foreseeable, in each case to the Company Board as of or prior to
the date of this Agreement, and (ii) does not relate to (a) any
Company Alternative Proposal or consequence thereof, (b) Parent or
any of its Subsidiaries or (c) any change in the market price or
trading volume of the Company Shares or the fact that the Company
meets or exceeds any internal or analysts' expectations or
projections of the results of operations of the Company Group (it
being understood that the underlying causes of such change or fact
shall not be excluded by this clause (c)).
"Company Irrecoverable VAT" has the meaning
ascribed to it in Section 9.2(e)(i)(A).
"Company IT Assets" means computers, Software,
firmware, middleware, servers, workstations, routers, hubs,
switches, data communications lines, and all other information
technology equipment, and all associated documentation, in each
case, used or held for use by a member of the Company Group.
"Company Material Adverse Effect" means any event,
change, effect, development or occurrence that, individually or
together with any other event, change, effect, development or
occurrence, (a) would prevent, materially delay or materially
impair the ability of the Company to consummate the Acquisition or
(b) has had or would reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), business,
assets, liabilities or results of operations of the Company Group,
taken as a whole; provided that, solely for the purposes of
clause (b), no event, change, effect, development or occurrence to
the extent resulting from or arising out of any of the following
shall be deemed to constitute a Company Material Adverse Effect or
shall be taken into account in determining whether there has been,
or would reasonably be expected to be, a Company Material Adverse
Effect: (i) any decline in the market price or change in trading
volume of the Company Shares; (ii) any event, change, effect,
development or occurrence directly resulting from the announcement
or pendency of the Transactions (other than for purposes of any
representation or warranty contained in Section 6.1(u)(ii) and
Section 6.1(v) but subject to corresponding disclosures in the
Company Disclosure Schedule); (iii) any event, change, effect,
development or occurrence in the industries and jurisdictions in
which the Company Group operates or in the U.S. or global economy
generally or other general business, financial or market conditions
in the U.S. or globally, except in each case to the extent that the
Company Group, taken as a whole, is adversely affected
disproportionately relative to the other participants in such
industries or the U.S. or the global economy generally, as
applicable, and then only to the extent of such disproportionate
impact; (iv) any event, change, effect, development or occurrence
arising directly or indirectly from or otherwise relating to
fluctuations in the value of any currency, except to the extent
that the Company Group, taken as a whole, is adversely affected
disproportionately relative to the other participants in such
industries or the economy generally, as applicable, and then only
to the extent of such disproportionate impact; (v) any event,
change, effect, development or occurrence arising directly or
indirectly from or otherwise relating to any act of terrorism, war,
national or international calamity or any other similar event
(other than cyberattacks), except to the extent that such event,
circumstance, change or effect disproportionately affects the
Company Group, taken as a whole, relative to other participants in
the industries in which the Company Group operates or in the U.S or
global economy generally, as applicable, and then only to the
extent of such disproportionate impact; (vi) any epidemic, pandemic
(including COVID-19), disease outbreak or other public
health-related event, hurricane, tornado, flood, earthquake,
tsunamis, tornadoes, mudslides, fires or other natural disaster or
other force majeure event, or the escalation or worsening thereof,
except to the extent that the Company Group, taken as a whole, is
adversely affected disproportionately relative to other
participants in the industries in which the Company Group operates
or in the U.S. or global economy generally, as applicable, and then
only to the extent of such disproportionate impact; (vii) the
failure of any member of the Company Group to meet internal or
analysts' expectations or projections of the results of operations
of the Company Group; (viii) any adverse effect arising directly
from or otherwise directly relating to any action taken by the
Company Group at the written direction of Parent or any action
specifically required pursuant to the terms of this Agreement to be
taken by the Company (except for any obligation to operate in the
ordinary course of business); (ix) any event, change, effect,
development or occurrence arising directly or indirectly from or
otherwise relating to any change in, or any compliance with, any
applicable Laws or GAAP (or interpretations of any applicable Laws
or GAAP), except to the extent that the Company Group, taken as a
whole, is adversely affected disproportionately relative to the
other participants in such industries or the U.S. or global economy
generally, as applicable, and then only to the extent of such
disproportionate impact; or (x) any FDA or similar (in the U.S. or
globally) regulatory, manufacturing, safety or clinical event,
change, effect, development or occurrence relating to any Company
Product (but excluding the loss of any manufacturing license or the
loss of marketing authorization for any Company Product); it being
understood that the exceptions in clauses (i) and (vii) shall not
prevent or otherwise affect a determination that the underlying
cause of any such decline or failure referred to therein (if not
otherwise expressly excluded under any of the exceptions provided
by clauses (ii) through (vi) or (viii) through (x) hereof) is a
Company Material Adverse Effect.
"Company Memorandum and Articles of Association"
has the meaning ascribed to it in Section 6.1(a).
"Company Note Offers and Consent Solicitations"
has the meaning ascribed to it in Section 7.8(b).
"Company Notes" means the 5.500% Senior Notes of
the Company due 2027 issued under the Indenture.
"Company Options" means all options to purchase
Company Shares granted pursuant to Company Share Plans.
"Company Product" means all products or product
candidates that are being researched, tested, developed,
commercialized, manufactured, sold or distributed by any member of
the Company Group and all products or product candidates, if any,
with respect to which any member of the Company Group has royalty
rights.
"Company PSU Awards" means all restricted stock
units payable in Company Shares or whose value is determined with
reference to the value of Company Shares with performance-based
vesting or delivery requirements granted pursuant to the Company
Share Plans.
"Company Related Parties" has the meaning ascribed
to it in Section 9.2(h)(i).
"Company RSU Awards" means all restricted stock
units payable in Company Shares or whose value is determined with
reference to the value of Company Shares granted pursuant to the
Company Share Plans other than any Company PSU Award.
"Company SEC Documents" has the meaning ascribed
to it in Section 6.1(d)(i).
"Company Share Award" means the Company PSU Awards
and the Company RSU Awards.
"Company Share Plans" means, collectively, the
2011 Equity Incentive Plan, as amended, the Amended and Restated
2014 Equity Incentive Plan, the 2014 Non-Employee Equity Plan, as
amended, the Amended and Restated 2018 Equity Incentive Plan, the
2020 Employee Share Purchase Plan, and the Amended and Restated
2020 Equity Incentive Plan, as amended, including any sub-plans
thereto.
"Company Shareholder Approval" means (i) the
approval of the Scheme by a majority in number of members of each
class of the Company Shareholders (including as may be directed by
the Irish High Court pursuant to Section 450(5) of the Irish
Companies Act) representing, at the relevant voting record time, at
least 75% in value of the Company Shares of that class held by the
Company Shareholders who are members of that class and that are
present and voting either in person or by proxy, at the Scheme
Meeting (or at any adjournment or postponement of such meeting) and
(ii) the Required EGM Resolutions being duly passed by the
requisite majorities of the Company Shareholders at the EGM (or at
any adjournment or postponement of such meeting).
"Company Shareholders" means the registered
holders of Company Shares.
"Company Shares" means the ordinary shares of the
Company, nominal value US$0.0001 per
share.
"Company Superior Proposal" means any bona fide,
written Company Alternative Proposal (with all references to "20%"
in the definition of the Company Alternative Proposal being deemed
to be references to "50%") on terms that the Company Board
determines in good faith, after consultation with its financial
advisor and outside legal counsel, (a) is more favorable to the
Company Shareholders (in their capacity as such) from a financial
point of view than the Acquisition and (b) is reasonably expected
to be consummated in accordance with its terms, in the case of each
of clauses (a) and (b), taking into account all the financial,
legal, regulatory and other terms and conditions of the Company
Alternative Proposal that the Company Board considers to be
appropriate (including the expected timing of consummation, any
governmental or other approval requirements, and availability of
necessary financing).
"Company Supplemental Indenture" has the meaning
ascribed to it in Section 7.8(b).
"Completion" means the completion of the
Acquisition.
"Completion Date" has the meaning ascribed to it
in Section 8.1(a).
"Concert Parties" means such Persons as are deemed
to be Acting in Concert with Parent pursuant to Rule 3.3 of Part A
of the Irish Takeover Rules.
"Conditions" means the conditions to the Scheme
and the Acquisition set out in Appendix 3 of the Rule 2.7
Announcement attached hereto, and "Condition" means
any one of the Conditions.
"Confidentiality Agreement" means the
confidentiality agreement between the Company and Parent dated
November 18, 2022.
"Consent Solicitations" has the meaning ascribed
to it in Section 7.8(b).
"Consideration" means US$116.50 in cash per each Company Share.
"Continuing Employee" means each Company Employee
who is employed by the Company as of immediately prior to the
Effective Time and who continues to be employed by Acquirer Sub or
Parent (or any Affiliate thereof) following the Effective Time.
"Contract" means any written or oral contract,
agreement, lease, license or other legally binding obligation,
understanding, instrument, commitment or undertaking of any
nature.
"Court Order" means the Order or Orders of the
Irish High Court sanctioning the Scheme under Section 453 of the
Irish Companies Act.
"COVID-19" means SARS-CoV-2 or COVID-19, and any
variants or evolutions thereof or epidemics, pandemics or disease
outbreaks thereof.
"COVID-19 Measures" means any quarantine, "shelter
in place," "stay at home," workforce reduction, social distancing,
shutdown, closure, sequester or other Law, order, directive,
guideline or recommendation by any Governmental Entity or public
health agency in connection with or in response to COVID-19, and
all guidelines and requirements, such as social distancing,
cleaning, and other similar or related measures of the United
States Occupational Safety and Health Administration and the
Centers for Disease Control and Prevention or other similar U.S. or
non U.S. Governmental Entity in connection with or in response to
COVID-19.
"D&O Claim" has the meaning ascribed to it in
Section 7.3(a).
"D&O Indemnified Parties" has the meaning
ascribed to it in Section 7.3(a).
"D&O Indemnifying Parties" has the meaning
ascribed to it in Section 7.3(a).
"Data Security Requirements" means, to the extent
governing the Company's or any member of the Company Group's
Processing of Personal Information, as applicable: (i) Privacy and
Security Laws (including as and to the extent applicable, the
Health Insurance Portability and Accountability Act of 1996 and the
EU General Data Protection Regulation), (ii) externally published
policies (including website privacy policies) and other written
notices relating to privacy, data transparency or security, and
(iii) contractual requirements relating to the privacy or security
of Personal Information by which any member of the Company Group is
bound.
"Debt Agreement" means that certain Bridge Credit
Agreement, to be dated as of December 12,
2022, among Parent, Citibank N.A., as administrative agent,
Bank of America, N.A., as syndication agent, and Citibank, N.A. and
Bank of America, N.A. as lead arrangers and book runners, and the
other banks from time to time party thereto, an executed copy of
which has been provided to the Company on the date of this
Agreement.
"Debt Offer Documents" has the meaning ascribed to
it in Section 7.8(b).
"Effective Date" means the date on which the
Scheme becomes effective in accordance with its terms or, if the
Acquisition is implemented by way of a Takeover Offer, the date on
which the Takeover Offer has become (or has been declared)
unconditional in all respects in accordance with the provisions of
the Takeover Offer Document and the Irish Takeover Rules.
"Effective Time" means the time on the Effective
Date at which the Court Order is delivered to the Registrar of
Companies or, if the Acquisition is implemented by way of a
Takeover Offer, the time on the Effective Date at which the
Takeover Offer becomes (or is declared) unconditional in all
respects in accordance with the provisions of the Takeover Offer
Document and the Irish Takeover Rules.
"EGM" means the extraordinary general meeting of
the Company Shareholders (and any adjournment or postponement
thereof) to be convened in connection with the Scheme, expected to
be held as soon as the preceding Scheme Meeting shall have been
concluded (it being understood that if the Scheme Meeting is
adjourned or postponed, the EGM shall be correspondingly adjourned
or postponed).
"EGM Resolutions" means, collectively, the
following resolutions to be proposed at the EGM: (i) an ordinary
resolution to approve the Scheme and to authorize the Company Board
to take all such action as it considers necessary or appropriate to
implement the Scheme; and (ii) a special resolution amending the
Company Memorandum and Articles of Association in accordance with
Section 4.3 of this Agreement (the resolutions described in the
foregoing clauses (i) and (ii), the "Required EGM
Resolutions"); (iii) an ordinary resolution that any motion
by the chairperson of the Company Board to adjourn or postpone the
EGM, or any adjournments or postponements thereof, to another time
and place if necessary or appropriate to solicit additional proxies
if there are insufficient votes at the time of the EGM to approve
the Scheme or any of the Required EGM Resolutions to be approved;
and (iv) any other resolutions as the Company reasonably determines
to be (A) required under applicable Laws or (B) otherwise necessary
or desirable for the purposes of implementing the Acquisition as
have been approved by Parent (such approval not to be unreasonably
withheld, conditioned or delayed).
"Employee Agreement" means each employment, equity
incentive, severance, separation, or other written individual
agreement or contract that provides for any salary, bonus,
commissions, incentive compensation or other compensation, equity,
or benefits (including, any offer letter) between the Company or
any member of the Company Group and any individual service
provider, and with respect to which a member of the Company Group
could reasonably be expected to have any liability.
"Employee Plan" means any bonus, vacation,
deferred compensation, incentive compensation, equity plan,
severance pay, termination pay, death and disability benefits,
hospitalization, medical, life or other insurance, flexible
benefits, supplemental unemployment benefits, profit-sharing,
pension or retirement plan, policy, program, contract, agreement or
arrangement and each other employee compensation or benefit plan,
policy, program, contract, agreement or arrangement sponsored,
maintained, contributed to or required to be contributed to by any
member of the Company Group or with respect to which any member of
the Company Group could reasonably be expected to have any
liability, whether written or unwritten, excluding, in all cases,
any Employee Agreement.
"End Date" means June 12,
2023; provided, however, that in the event
that on the original End Date, one or more of paragraphs 3.1, 3.2
or 3.3 of the Conditions (with respect to paragraph 3.3, only if
the failure of such Condition to have been satisfied as of such
date is an Order or Law under any Antitrust Law or Foreign
Investment Law in connection with or in respect of any matter
involving Antitrust Law or Foreign Investment Law) have not been
satisfied, and on such date, all of the other Conditions (other
than (a) the paragraphs 2.3 and 2.4 of the Conditions or (b) any
other Condition that by its nature can only be satisfied on the
Sanction Date or, in the alternative to (a) and (b) where the
Acquisition is implemented by Takeover Offer, any other condition
that by its nature can only be satisfied by no later than the
latest date upon which the Takeover Offer may be declared
unconditional in all respects) have been satisfied or waived (or
remain capable of being satisfied or waived), then the End Date
shall be automatically extended without further action by the
Parties until September 12, 2023 (the
"First Extended End Date") (and in the case of such
extension, any reference to the End Date in this Agreement shall be
a reference to the First Extended End Date); provided,
further, that in the event that on the First Extended End
Date, one or more of the paragraphs 3.1, 3.2 or 3.3 of the
Conditions (with respect to paragraph 3.3, only if the failure of
such Condition to have been satisfied as of such date is an Order
or Law under any Antitrust Law or Foreign Investment Law in
connection with or in respect of any matter involving Antitrust Law
or Foreign Investment Law) have not been satisfied, and on such
date, all of the other Conditions (other than (a) the Conditions
set out in paragraphs 2.3 and 2.4 of the Conditions or (b) any
other Condition that by its nature can only be satisfied on the
Sanction Date or, in the alternative to (a) and (b) where the
Acquisition is implemented by Takeover Offer, any other condition
that by its nature can only be satisfied by no later than the
latest date upon which the Takeover Offer may be declared
unconditional in all respects) have been satisfied or waived (or
remain capable of being satisfied or waived), then the First
Extended End Date shall be automatically extended without further
action by the Parties until December 12,
2023 (the "Second Extended End Date") (and in
the case of such extension, any reference to the End Date in this
Agreement shall be a reference to the Second Extended End
Date).
"End Date Termination" has the meaning ascribed to
it in Section 9.1.
"Environmental Law" means each applicable Law
relating to (i) pollution, protection of human health or worker
health or the protection, preservation or restoration of the
environment (including air, surface water, groundwater, drinking
water supply, surface land, subsurface land, plant and animal life
or any other natural resource), or (ii) the exposure to, or the
use, storage, recycling, treatment, generation, manufacture,
distribution, transportation, processing, handling, labeling,
production, release, threatened releases, emissions, discharges or
disposal of, Hazardous Substances.
"Equitable Exceptions" means (i) applicable
bankruptcy, insolvency, examinership, reorganization, moratorium or
other similar Laws, now or hereafter in effect, relating to
creditors' rights generally and (ii) general equitable principles,
whether considered in a proceeding at law or equity.
"Equity Award Exchange Ratio" has the meaning
ascribed to it in Section 4.1(b)(i).
"Equity Securities" means, with respect to any
Person, (i) any shares of capital or capital stock (including any
ordinary shares) or other voting securities of, or other ownership
interest in, such Person, (ii) any securities of such Person
convertible into or exchangeable for cash or shares of capital or
capital stock or other voting securities of, or other ownership
interests in, such Person or any of its Subsidiaries, (iii) any
warrants, calls, options or other rights to acquire from such
Person, or other obligations of such Person to issue, any shares of
capital or capital stock or other voting securities of, or other
ownership interests in, or securities convertible into or
exchangeable for shares of capital or capital stock or other voting
securities of, or other ownership interests in, such Person or any
of its Subsidiaries, or (iv) any restricted shares, stock
appreciation rights, restricted units, performance units,
contingent value rights, "phantom" stock or similar securities or
rights issued by or with the approval of such Person that are
derivative of, or provide economic benefits based, directly or
indirectly, on the value or price of, any shares of capital or
capital stock or other voting securities of, other ownership
interests in, or any business, products or assets of, such Person
or any of its Subsidiaries.
"ERISA" means the United States Employee
Retirement Income Security Act of 1974.
"Exchange Act" means the United States Securities
Exchange Act of 1934.
"FCPA" means the United States Foreign Corrupt
Practices Act of 1977.
"FDA" means the United States Food and Drug
Administration.
"FDCA" means the United States Food, Drug and
Cosmetic Act of 1938.
"Filing" means any registration, petition,
statement, application, schedule, form, declaration, notice,
notification, report, submission or other filing.
"Financing" means the debt financing provided by
the Debt Agreement and any other third party debt financing that is
necessary, or that is otherwise incurred or intended to be incurred
by Parent or any of the Subsidiaries of Parent, to refinance or
refund any existing Indebtedness for borrowed money of the Company,
Parent or any of their respective Subsidiaries in each case in
connection with the Transactions, or to fund the Consideration
payable by Acquirer Sub in the Scheme or (as the case may be) the
Takeover Offer, including the offering or private placement of debt
securities or the incurrence of credit facilities.
"Financing Amounts" has the meaning ascribed to it
in Section 6.2(g)(i).
"Financing Information" has the meaning ascribed
to it in Section 7.8(a)(ii).
"Financing Sources" means (i) the Persons that
have committed to provide or arrange or otherwise entered into
agreements in connection with the Financing, including the parties
to any joinder agreements, engagement letters, indentures or credit
agreements entered into pursuant thereto or relating thereto, but
excluding in each case, for clarity, the Parties and their
Subsidiaries, (ii) the Affiliates of the Persons set forth in
clause (i) above and (iii) the Representatives and the respective
successors and assigns of the Persons set forth in clauses (i) and
(ii) above.
"Foreign Investment Laws" means all applicable
Laws (other than Antitrust Laws) in effect from time to time that
are designed or intended to prohibit, restrict or regulate actions
by foreigners to acquire interests in or control over domestic
equities, securities, entities, assets, land or other holdings for
reasons of national security or other public policy.
"GAAP" means U.S. generally accepted accounting
principles.
"GMP Regulations" means the applicable Laws and
guidances for current Good Manufacturing Practices promulgated by
the FDA under the FDCA or PHS Act, applicable EU or EU Member State
Law, or under the European Union guidelines to Good Manufacturing
Practice for medicinal products and any other applicable
Governmental Entity in each jurisdiction where any member of the
Company Group or a Third Party acting on its behalf is undertaking
a clinical trial or any manufacturing activities as of or prior to
the Completion.
"Government Official" means (i) any official,
officer, employee, or representative of, or any Person acting in an
official capacity for or on behalf of, any Governmental Entity,
(ii) any political party, party official or candidate for political
office or (iii) any company, business, enterprise or other entity
owned or controlled by any Person described in the foregoing clause
(i) or (ii) of this definition.
"Governmental Authorization" means any: (a)
permit, license, certificate, franchise, permission, variance,
clearance, registration, qualification or authorization issued,
granted, given or otherwise made available by or under the
authority of any Governmental Entity or pursuant to any Law; or (b)
right under any Contract with any Governmental Entity.
"Governmental Entity" means any United States, Irish or other foreign or
supranational, federal, state or local governmental commission,
board, body, division, ministry, political subdivision, bureau or
other regulatory authority or agency, including courts and other
judicial bodies, or any competition, antitrust, foreign investment
or supervisory body, central bank, public international
organization or other governmental, trade or regulatory agency or
body, securities exchange or any self-regulatory body or authority,
including any instrumentality or entity designed to act for or on
behalf of the foregoing, in each case, in any jurisdiction,
including, the Irish Takeover Panel, the Irish High Court and the
SEC.
"Group" means a "group" as defined in Section
13(d) of the Exchange Act.
"Hazardous Substance" means any substance,
material or waste that is listed, defined, designated or classified
as hazardous, toxic, radioactive, dangerous or a "pollutant" or
"contaminant" or words of similar meaning under any Environmental
Law or that is otherwise regulated by any Governmental Entity with
jurisdiction over the environment or natural resources, including
petroleum or any derivative, byproduct or waste thereof, radon,
radioactive material, asbestos or asbestos-containing material,
urea formaldehyde, foam insulation or polychlorinated
biphenyls.
"Healthcare Laws" means all Laws relating to the
research, development, testing, approval, manufacturing,
production, holding, preparation, propagation, compounding,
conversion, pricing, marketing, promotion, sale, distribution,
import, export, coverage, or reimbursement of Company Products
including: Title XVIII of the Social Security Act, 42 U.S.C. §§
1395-1395lll (the Medicare statute); Title XIX of the Social
Security Act, 42 U.S.C. §§ 1396- 1396w-5 (the Medicaid statute);
the Federal Health Care Program Anti-Kickback Statute, 42 U.S.C. §
1320a-7b(b); the False Claims Act, 31 U.S.C. §§ 3729-3733; the
Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801-3812; the
Anti-Kickback Act of 1986, 41 U.S.C. §§ 51-58; the Civil Monetary
Penalties Law, 42 U.S.C. §§ 1320a-7a and 1320a-7b; the Exclusion
Laws, 42 U.S.C. § 1320a 7; the Health Insurance Portability and
Accountability Act of 1996, as amended by the Health Information
Technology for Economic and Clinical Health Act (Title XIII of the
American Recovery and Reinvestment Act of 2009); the FDCA; the
Public Health Service Act; Directive 2001/83/EC on the Community
code relating to medicinal products for human use; Regulation
726/2004 laying down Community procedures for the authorization and
supervision of medicinal products for human and veterinary use and
establishing a European Medicines Agency; any similar
international, federal, state and local Laws that address the
subject matter of the foregoing; and the Patient Protection and
Affordable Care Act of 2010.
"Historical Financial Statements" has the meaning
ascribed to it in Section 7.8(a)(i).
"HSR Act" means the United States
Hart-Scott-Rodino Antitrust Improvements Act of 1976.
"In-bound License" has the meaning ascribed to it
in Section 6.1(h)(iv).
"Indebtedness" means, with respect to any Person,
without duplication, all outstanding obligations of such Person (a)
for borrowed money, (b) as evidenced by bonds, debentures, notes or
similar instruments, (c) pursuant to securitization or factoring
programs or arrangements, for net cash payment obligations of such
Person under swaps, options, forward sales contracts, derivatives
and other hedging Contracts, financial instruments or arrangements
that will be payable upon termination thereof (assuming termination
on the date of determination), (d) for letters of credit, bank
guarantees, performance bonds and other similar Contracts or
arrangements entered into by or on behalf of such Person, to the
extent drawn, or (e) pursuant to guarantees and arrangements having
the economic effect of a guarantee of any obligation or undertaking
of any other Person contemplated by the foregoing clauses (a)
through (d) of this definition, in each case including all
interest, premiums, prepayment fees, penalties, commitment or other
fees, reimbursements, expenses and other payments due with respect
thereto.
"Indenture" means that certain Indenture, dated
July 16, 2019, between Horizon
Therapeutics USA, Inc. and U.S.
Bank National Association, as supplemented by the First
Supplemental Indenture, dated November 19,
2019, the Second Supplemental Indenture dated April 23, 2020, and the Third Supplemental
Indenture dated March 15, 2021.
"Insurance Policies" has the meaning ascribed to
it in Section 6.1(s).
"Intellectual Property" means any and all rights
in or associated with any of the following, whether or not
registered, arising in the United
States or any other jurisdiction throughout the world: (i)
trademarks, service marks, trade names, trade dress, logos,
symbols, brand names, slogans, Internet domain names, Internet
account names (including social networking and media names) and
other indicia of origin, together with all common law rights and
goodwill associated therewith or symbolized thereby, and all
registrations and applications relating to the foregoing; (ii)
patents and pending patent applications, and all divisions,
continuations, continuations-in-part, reissues and reexaminations,
and any extensions thereof; (iii) works of authorship (whether or
not copyrightable), registered and unregistered copyrights
(including those in Software), all registrations and applications
to register the same, and all renewals, extensions, reversions and
restorations thereof, including moral rights of authors and common
law rights thereto, and technical database rights; (iv) trade
secrets, rights in technology, confidential or proprietary
information and other know-how, including inventions (whether or
not patentable or reduced to practice), concepts, methods,
processes, protocols, assays, formulations, formulae, technical,
research, clinical and other technical data, technical databases,
designs, specifications, schematics, drawings, algorithms, models
and methodologies; (v) rights in Software; and (vi) other similar
types of proprietary or industrial rights or other intellectual
property.
"Ireland" or
"Republic of
Ireland" means Ireland, excluding Northern Ireland, and the word
"Irish" shall be construed accordingly.
"Irish Companies Act" means the Companies Act 2014
of Ireland, all enactments which
are to be read as one with, or construed or read together as one
with, the Companies Act 2014 and every statutory modification and
re-enactment thereof for the time being in force.
"Irish High Court" means the High Court of
Ireland.
"Irish Takeover Panel Act" means the Irish
Takeover Panel Act 1997.
"Irish Takeover Rules" means the Irish Takeover
Panel Act 1997, Irish Takeover Rules, 2022.
"Irrecoverable VAT" means in
relation to any Person, any amount in respect of VAT which that
Person (or a member of the same VAT Group as that Person) has
incurred and in respect of which neither that Person nor any other
member of the same VAT Group as that Person is entitled to a refund
(by way of credit or repayment) from any relevant Tax Authority
pursuant to and determined in accordance with applicable VAT
Laws.
"knowledge" means in relation to the Company, the
actual knowledge, after reasonable inquiry of their direct reports,
of the Persons listed in Section 1.1(a) of the Company Disclosure
Schedule. With respect to matters involving Intellectual Property,
reasonable inquiry does not require that the Persons listed in
Section 1.1(a) of the Company Disclosure Schedule to conduct or
have conducted or obtain or have obtained any freedom-to-operate
opinions or similar opinions of counsel or any Intellectual
Property clearance searches, and no knowledge of any Intellectual
Property of any other Person that would have been revealed by such
inquiries, opinions or searches will be imputed to such
Persons.
"Law" means any federal, state, local, foreign or
supranational law, statute, ordinance, rule, regulation, judgment,
order, injunction, decree, executive order or agency requirement of
any Governmental Entity.
"Lease" has the meaning ascribed to it in Section
6.1(g).
"Leased Real Property" has the meaning ascribed to
it in Section 6.1(g).
"Legal Proceeding" means any action, suit, charge,
complaint, litigation, arbitration, proceeding (including any
civil, criminal, administrative, investigative or appellate
proceeding) or hearing commenced, brought, conducted or heard by or
before, or otherwise involving, any court or other Governmental
Entity or any arbitrator or arbitration panel that have the
applicable jurisdiction.
"Licensed Intellectual Property" means any and all
Intellectual Property owned by a Third Party and licensed
(including sublicensed or granted a covenant not to sue) to any
member of the Company Group.
"Lien" means, with respect to any property or
asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such property or asset.
"Marketing Material" has the meaning ascribed to
it in Section 7.8(a)(i).
"Material Contract" has the meaning ascribed to it
in Section 6.1(j).
"Maximum Premium" has the meaning ascribed to it
in Section 7.3(b).
"Nasdaq" means the Nasdaq Global Select Market, or
any successor stock market or exchange operated by Nasdaq, Inc., or
any successor thereto.
"New Plans" has the meaning ascribed to it in
Section 7.4(c).
"Non Approval Termination" has the meaning
ascribed to it in Section 9.1(a)(i)(A).
"Northern
Ireland" means the counties of Antrim, Armagh,
Derry, Down, Fermanagh and Tyrone on the island of Ireland.
"Offering Document" has the meaning ascribed to it
in Section 7.8.
"Offers to Exchange" has the meaning ascribed to
it in Section 7.8(b).
"Offers to Purchase" has the meaning ascribed to
it in Section 7.8(b).
"Old Plans" has the meaning ascribed to it in
Section 7.4(c).
"Option Consideration" has the meaning ascribed to
it in Section 4.1(a).
"Order" means any order, writ, decree, judgment,
award, injunction, ruling, settlement or stipulation issued,
promulgated, made, rendered or entered into by or with any
Governmental Entity or arbitrator (in each case, whether temporary,
preliminary or permanent).
"Organizational Documents" means articles of
association, articles of incorporation, certificate of
incorporation, constitution, by-laws, limited liability company
agreement, operating agreement or other equivalent organizational
document, as appropriate.
"Out-bound License" has the meaning ascribed to it
in Section 6.1(h)(iv).
"Owned Intellectual Property" means any and all
Intellectual Property owned or purported to be owned by any member
of the Company Group.
"Owned Real Property" has the meaning ascribed to
it in Section 6.1(g).
"Parent" has the meaning ascribed to it in the
Preamble.
"Parent Breach Termination" has the meaning
ascribed to it in Section 9.1(a).
"Parent Common Stock" has the meaning ascribed to
it in Section 4.1(b)(i). "Parent Financing
Information" has the meaning ascribed to it in Section
3.4(b)(i).
"Parent Group" means Parent and its
Subsidiaries.
"Parent Material Adverse Effect" means any effect,
change, event or occurrence that would, individually or in the
aggregate, prevent, materially delay or materially impair the
ability of Parent or Acquirer Sub to consummate the
Transactions.
"Parent Parties" means Parent and Acquirer Sub and
"Parent Party" means either Parent or Acquirer Sub
(as the context requires).
"Parent Payment Events" has the meaning ascribed
to it in Section 9.2(b).
"Parent Related Parties" has the meaning ascribed
to it in Section 9.2(h)(i).
"Parent RSU" has the meaning ascribed to it in
Section 4.1(b)(i).
"Parties" means the Company and the Parent Parties
and "Party" means either the Company, on the one
hand, or Parent or the Parent Parties (whether individually or
collectively), on the other hand (as the context requires).
"Permitted Liens" means (i) any Lien for Taxes (A)
not yet due and payable or (B) which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves have been established in accordance with GAAP, (ii)
carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other similar Liens, (iii) pledges or deposits in connection
with workers' compensation, unemployment insurance and other social
security legislation, (iv) gaps in the chain of title that are
required to be recorded, evident from the records of the applicable
Governmental Entity maintaining such records, easements,
rights-of-way, covenants, restrictions and other encumbrances of
record as of the date of this Agreement that do not materially
detract from the value or the use of the property subject thereto,
(v) statutory landlords' liens and liens granted to landlords under
any lease, (vi) any purchase money security interests, equipment
leases or similar financing arrangements, (vii) any Liens which are
reflected on the Balance Sheet, or the notes thereto, or incurred
in connection with the Company Credit Agreement, (viii) any
non-exclusive licenses in the ordinary course of business, or (ix)
any Liens that are not material to the Company and its
Subsidiaries, taken as a whole.
"Person" means any individual, corporation,
partnership, limited liability company, association, trust or other
entity or organization, including a government or political
subdivision or an agency or instrumentality of such government or
political subdivision.
"Personal Information" means any information
Processed by or on behalf of any of the Company Group that
constitutes "personal information," "personal data," "personally
identifiable information," "protected health information," or other
analogous term as defined under applicable Privacy and Security
Laws.
"Privacy and Security Laws" means applicable Laws
that govern the Processing, privacy or security of Personal
Information.
"Process" or "Processing" means,
with respect Personal Information, the use, collection, receipt,
processing, aggregation, storage, recording, retention,
organization, adaption, alteration, transfer (including
cross-border transfer), retrieval, consultation, disclosure,
dissemination, erasure, destruction, anonymization or combination
of such Personal Information.
"Proxy Statement" has the meaning ascribed to it
in Section 3.1(a).
"PSU Consideration" has the meaning ascribed to it
in Section 4.1(b)(ii).
"Redemption" has the meaning ascribed to it in
Section 7.9(b).
"Registered IP" means all Intellectual Property
that are registered or issued under the authority of any
Governmental Entity or Internet domain name registrar, including
all issued patents, registered copyrights, registered mask works,
and registered trademarks, service marks and trade dress,
registered domain names, and all pending applications for patents,
trademarks and service marks.
"Registrar of Companies" means the Registrar of
Companies in Dublin, Ireland.
"Regulatory Agency" means any Governmental Entity
that is concerned with the quality, identity, strength, purity,
safety, efficacy, testing, manufacturing, labeling, storage,
distribution, marketing, sale, pricing, import or export of any of
the Company Products.
"Regulatory Information Service" means a
regulatory information service as defined in the Irish Takeover
Rules.
"Regulatory Permits" means authorization (i) under
the FDCA or the Public Health Service Act and (ii) of any
applicable Regulatory Agency, in each case, as necessary for the
lawful operation of the business of the Company or any of its
Subsidiaries.
"Reimbursement Amount" means an amount equal to
the documented, specific, quantifiable Third Party costs and
expenses incurred, directly or indirectly, by Parent or its
Subsidiaries, or on their behalf, for the purposes of, in
preparation for, or in connection with the Acquisition, including
Third Party costs and expenses incurred in connection with
exploratory work carried out in contemplation of and in connection
with the Acquisition, legal, financial and commercial due
diligence, the arrangement of financing and the engagement of Third
Party Representatives to assist in the process.
"Reimbursement Payment" has the meaning ascribed
to it in Section 9.2(a).
"Remedy Actions" has the meaning ascribed to it in
Section 7.2(c).
"Representatives" means, in relation to any
Person, the directors, officers, employees, agents, investment
bankers, financial advisors, legal advisors, accountants, brokers,
finders, consultants or other representatives of such Person.
"Required Non-U.S. Jurisdiction" has the meaning
ascribed to it in Section 7.2(d).
"Resolutions" means the EGM Resolutions or the
Scheme Meeting Resolution, as the context requires, which will be
set out in the Scheme Document.
"Restraining Order Termination" has the meaning
ascribed to it in Section 9.1(a).
"Reverse Termination Payment" has the meaning
ascribed to it in Section 9.2(a).
"RSU Cash Consideration" has the meaning ascribed
to it in Section 4.1(b)(i).
"Rule 2.7 Announcement" means the announcement to
be made by the Parties pursuant to Rule 2.7 of the Irish Takeover
Rules for the purposes of the Acquisition, in the form agreed to by
or on behalf of the Parties.
"Sanction Date" has the meaning ascribed to it in
Appendix 3 of the Rule 2.7 Announcement.
"Scheme" means the proposed scheme of arrangement
under Chapter 1 of Part 9 of the Irish Companies Act to effect the
Acquisition pursuant to this Agreement, on such terms and in such
form as is consistent with the terms agreed to by the Parties as
set out in the Rule 2.7 Announcement, including any revision
thereof as may be agreed between the Parties in writing, and, if
required, by the Irish High Court.
"Scheme Barrister" has the meaning ascribed to it
in Section 3.1(b).
"Scheme Document" means a document (or relevant
sections of the Proxy Statement) (including any amendments or
supplements thereto) to be distributed to the Company Shareholders
and, for information only, to the Company Equity Award Holders
containing (i) the Scheme, (ii) the notice or notices of the Scheme
Meeting and EGM, (iii) an explanatory statement as required by
Section 452 of the Irish Companies Act with respect to the Scheme,
(iv) such other information as may be required or necessary
pursuant to the Irish Companies Act, the Exchange Act or the Irish
Takeover Rules and (v) such other information as the Company and
Parent shall agree.
"Scheme Meeting" means the meeting or meetings of
the Company Shareholders or, if applicable, the meeting or meetings
of any class or classes of Company Shareholders (and, in each case,
any adjournment or postponement thereof) convened by order of the
Irish High Court pursuant to Section 450 of the Irish Companies Act
to consider and, if thought fit, approve the Scheme (with or
without amendment).
"Scheme Meeting Resolution" means the resolution
to be proposed at the Scheme Meeting for the purposes of approving
and implementing the Scheme.
"Scheme Recommendation" means the unanimous
recommendation of the Company Board that Company Shareholders vote
in favor of the Resolutions (or, subject to this Agreement, if
Acquirer Sub effects the Acquisition as a Takeover Offer, the
unanimous recommendation of the Company Board that Company
Shareholders accept the Takeover Offer).
"Scheme Record Time" means time specified as the
scheme record time in the Scheme.
"SEC" means the United States Securities and
Exchange Commission.
"Securities Act" means the United States
Securities Act of 1933.
"Security Incident" means any breach of security,
phishing incident, ransomware, malware attack or any other incident
involving the unauthorized or unlawful Processing of Personal
Information that would require notification to any Person under
Data Security Requirements.
"Severance Arrangements" has the meaning ascribed
to it in Section 7.4(b).
"Significant Subsidiary" means a significant
subsidiary as defined in Rule l-02(w) of Regulation S-X of the
Securities Act.
"Software" means all (i) computer programs and
other software including any and all software implementations of
algorithms, models, methodologies, assemblers, applets, compilers,
development tools, design tools and user interfaces, whether in
source code or object code form, (ii) technical databases and
compilations, including all technical data and collections of
technical data, whether machine readable or otherwise, (iii)
updates, upgrades, modifications, improvements, enhancements,
derivative works, new versions, new releases and corrections to or
based on any of the foregoing, and (iv) all documentation,
including development, diagnostic, support, user and training
documentation, related to the foregoing.
"Specified Termination" has the meaning ascribed
to it in Section 9.2(c).
"Standard Contracts" has the meaning ascribed to
it in Section 6.1(h)(iv).
"Subsidiary" means, with respect to any Person,
any entity of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors
or other persons performing similar functions are directly or
indirectly owned by such Person. For purposes of this Agreement, a
Subsidiary shall be considered a "wholly owned Subsidiary" of a
Person if such Person directly or indirectly owns all of the
securities or other ownership interests (excluding any securities
or other ownership interests held by an individual director or
officer required to hold such securities or other ownership
interests pursuant to applicable Laws) of such Subsidiary.
"Superior Proposal Termination" has the meaning
ascribed to it in Section 9.1(a)(ii)(B).
"Takeover Offer" means an offer in accordance with
Section 3.6 for the entire issued share capital of the Company
(other than any Company Shares beneficially owned by Parent or
Acquirer Sub and any Company Shares held by any member of the
Company Group) including any amendment or revision thereto pursuant
to this Agreement, the full terms of which would be set out in the
Takeover Offer Document or (as the case may be) any revised offer
documents.
"Takeover Offer Document" means, if, following the
date of this Agreement, Parent elects to implement the Acquisition
by way of the Takeover Offer in accordance with Section 3.6, the
document to be sent to the Company Shareholders and others jointly
by Parent and Acquirer Sub containing, among other things, the
Takeover Offer, the Conditions (except as Parent determines
pursuant to and in accordance with Section 3.6 not to be
appropriate in the case of a Takeover Offer) and certain
information about Parent, Acquirer Sub and the Company and, where
the context so requires, includes any form of acceptance, election,
notice or other document reasonably required in connection with the
Takeover Offer.
"Tax" or "Taxes" means any and all
taxes imposed by or payable to any federal, state, provincial,
local or non-U.S. Tax Authority, and includes all U.S. federal,
state, local and non-U.S. gross or net income, gain, profits,
windfall profits, franchise, gross receipts, estimated, capital,
documentary, transfer, ad valorem, premium, customs duty, capital
stock, severances, stamp, payroll, sales, employment, unemployment
compensation, social security, disability, use, property,
withholding or backup withholding, excise, production, value added
and occupancy taxes, together with all interest, penalties and
additions imposed with respect thereto.
"Tax Authority" means any Governmental Entity
responsible for the assessment, collection or enforcement of laws
relating to Taxes (including the United States Internal Revenue
Service and the Irish Revenue Commissioners and any similar state,
local, or non-U.S. revenue agency).
"Tax Return" means all returns and reports
(including elections, declarations, disclosures, schedules,
estimates, claims for refunds and information returns) filed or
required to be filed with a Tax Authority relating to Taxes,
including all attachments thereto and any amendments or supplements
thereof.
"Third Party" means any Person or Group, other
than the Company or any of its Affiliates, in the case of Parent
and Acquirer Sub, or other than Parent or any of its Affiliates, in
the case of the Company, and the Representatives of such Persons,
in each case, acting in such capacity.
"Transaction Litigation" has the meaning ascribed
to it in Section 7.10.
"Transactions" means the transactions contemplated
by this Agreement, including the Acquisition.
"U.S." or "United
States" means the United
States, its territories and possessions, any State of the United States and the
District of Columbia, and all
other areas subject to its jurisdiction.
"VAT" means any tax imposed by any member state of
the European Union in conformity with the directive of the Council
of the European Union on the common system of value added tax
(2006/112/EC) and any tax similar to or replacing the same.
"VAT Group" means a group as defined in Section 15
of the Value Added Tax Consolidation Act 2010 and any similar VAT
grouping arrangement in any other jurisdiction.
"Willful Breach" means a material breach of this
Agreement that is the consequence of an act or omission by a Party
with the actual knowledge that the taking of such act or such
omission to take action would be a material breach of this
Agreement.
1.2 Construction.
(a) The following rules of interpretation shall apply to this
Agreement: (i) the words "hereof," "hereby," "herein" and
"hereunder" and words of like import used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement; (ii) the table of contents and
captions in this Agreement are included for convenience of
reference only and shall be ignored in the construction or
interpretation hereof; (iii) references to Sections are to Sections
of this Agreement unless otherwise specified; (iv) all schedules
annexed to this Agreement or referred to in this Agreement,
including the Company Disclosure Schedule, are incorporated in and
made a part of this Agreement as if set out in full in this
Agreement; (v) any capitalized term used in any schedule annexed to
this Agreement, including the Company Disclosure Schedule, but not
otherwise defined therein shall have the meaning set out in this
Agreement; (vi) any singular term in this Agreement shall be deemed
to include the plural, and any plural term the singular, and
references to any gender shall include all genders; (vii) whenever
the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words
"without limitation," whether or not they are in fact followed by
those words or words of like import; (viii) "writing," "written"
and comparable terms refer to printing, typing and other means of
reproducing words (including electronic media) in a visible form;
(ix) references to any applicable Law shall be deemed to refer to
such applicable Law as amended from time to time and to any rules
or regulations promulgated thereunder; (x) references to any
Contract are to that Contract as amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof;
(xi) references to any Person include the successors and permitted
assigns of that Person; (xii) references "from" or "through" any
date mean, unless otherwise specified, "from and including" or
"through and including," respectively; (xiii) references to
"dollars" and "$" means U.S. dollars; (xiv) the term "made
available" and words of similar import mean that the relevant
documents, instruments or materials were (A) with respect to
Parent, posted and made available to Parent on the Company due
diligence data site (or in any "clean room" or as otherwise
provided on an "outside counsel only" basis) at least one day prior
to the date of this Agreement; or (B) filed or furnished to the SEC
at least one Business Day prior to the date of this Agreement and
not subject to any redactions or omissions; (xv) the word "extent"
in the phrase "to the extent" means the degree to which a subject
or other theory extends and such phrase shall not mean "if"; (xvi)
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, (xvii) references to
times are to New York City times
unless otherwise specified; (xviii) unless otherwise indicated, the
word "or" shall not be exclusive (i.e., "or" shall be
deemed to mean "and/or"); and (xix) the Parties have participated
jointly in the negotiation and drafting of this Agreement and, in
the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as jointly drafted by the
Parties 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.
SECTION 2. RULE 2.7 ANNOUNCEMENT AND SCHEME
DOCUMENT
2.1 Rule 2.7 Announcement.
(a) Each Party confirms that its respective board of directors
(or a duly authorized committee thereof) has approved the contents
and release of the Rule 2.7 Announcement.
(b) Following the execution of this Agreement, the Company and
Parent shall jointly, in accordance with, and for the purposes of,
the Irish Takeover Rules, procure the release of the Rule 2.7
Announcement to a Regulatory Information Service by no later than
11:59 a.m., New York City time, on December 12, 2022, or such later time as may be
agreed between the Parties in writing.
(c) The obligations of the Parties under this Agreement, other
than the obligations under Section 2.1(a), shall be conditional on
the release of the Rule 2.7 Announcement to a Regulatory
Information Service.
(d) The Company confirms that, as of the date of this Agreement,
the Company Board unanimously considers that the terms of the
Scheme as contemplated by this Agreement are fair and reasonable
and that the Company Board has unanimously resolved to recommend to
the Company Shareholders that they vote in favor of the
Resolutions. The recommendation of the Company Board that the
Company Shareholders vote in favor of the Resolutions, and the
related opinion of the financial advisors to the Company Board, are
set out in the Rule 2.7 Announcement and, subject to Section 5.2,
shall be incorporated in the Scheme Document and to the extent
required by the Irish Takeover Rules, any other document sent to
the Company Shareholders in connection with the Acquisition.
(e) The Conditions are hereby incorporated in and shall
constitute a part of this Agreement.
2.2 The Scheme. Subject to Section 3.6:
(a) the Company agrees that, unless this Agreement has been
terminated in accordance with Section 9, it will propose the Scheme
to the Company Shareholders in the manner set out in Section 3 and,
subject to the satisfaction or, in the sole discretion of the
applicable Party, waiver (where permissible under the provisions of
the Rule 2.7 Announcement or the Scheme Document) of the Conditions
(with the exception of paragraphs 2.3 and 2.4 of the Conditions and
any other Conditions that by their nature are to be satisfied on
the Sanction Date, but subject to the satisfaction or waiver (where
permissible under the provisions of the Rule 2.7 Announcement or
the Scheme Document) of such Conditions), will, in the manner set
out in Section 3, apply to the Irish High Court for the sanction of
the Scheme so as to facilitate the implementation of the
Acquisition;
(b) each of Parent and Acquirer Sub agrees that it will
participate in the Scheme and agrees to be bound by its terms, as
proposed by the Company to the Company Shareholders, and that it
shall, subject to the satisfaction or, in the sole discretion of
the applicable Party, waiver (where permissible under the
provisions of the Rule 2.7 Announcement or the Scheme Document) of
the Conditions, effect the Acquisition through the Scheme on the
terms set out in this Agreement and the Scheme; and
(c) each of the Parties agrees that it will perform all of the
obligations required of it in respect of the Acquisition on the
terms set out in this Agreement or the Scheme, and each will,
subject to the terms and conditions of this Agreement, including
Section 7.2, use its reasonable best efforts to take such other
steps as are within its power and are reasonably required of it for
the proper implementation of the Scheme, including those required
of it pursuant to this Agreement in connection with the
Completion.
2.3 Change in Shares. If at any time during the
period between the date of this Agreement and the earlier of (i)
the Effective Time and (ii) the termination of this Agreement
pursuant to and in accordance with Section 9, the outstanding
Company Shares shall have been changed into, or exchanged for, a
different number of shares or a different class, by reason of any
subdivision, reclassification, reorganization, recapitalization,
split, combination, contribution or exchange of shares, or a stock
dividend or dividend payable in any other securities shall be
declared with a record date within such period, or any similar
event shall have occurred, the Consideration and any payments to be
made under Section 4 and any other number or amount contained in
this Agreement which is based upon the price or number of Company
Shares shall be correspondingly adjusted to provide the holders of
Company Shares the same economic effect as contemplated by this
Agreement prior to such event. Nothing in this Section 2.3 shall be
construed to permit any Party to take any action that is otherwise
prohibited or restricted by any other provision of this
Agreement.
2.4 Company Equity Award Holder Proposal.
(a) Subject to the posting of the Scheme Document to the Company
Shareholders in accordance with Section 3.1, the Parties agree that
the Company Equity Award Holder Proposal will be made to Company
Equity Award Holders in respect of their respective holdings of
Company Options or Company Share Awards in accordance with Rule 15
of the Irish Takeover Rules and the terms of the Company Share
Plans.
(b) The Company Equity Award Holder Proposal shall be sent as a
joint letter from the Company and Parent and the Parties shall
reasonably agree to the final form of the letter to be issued in
respect of the Company Equity Award Holder Proposal and all other
documentation necessary to effect the Company Equity Award Holder
Proposal.
(c) Except as required by applicable Laws, the Irish High Court
or the Irish Takeover Panel, no Party shall amend the Company
Equity Award Holder Proposal after it is sent without the consent
of each other Party (such consent not to be unreasonably withheld,
conditioned or delayed).
SECTION 3. IMPLEMENTATION OF THE
SCHEME
3.1 Responsibilities of the Company in Respect of the
Scheme. The Company shall:
(a) (i) be responsible for the preparation of the proxy
statement to be sent to the Company Shareholders in connection with
the matters to be submitted at the Scheme Meeting and the EGM (such
proxy statement, as amended or supplemented, the "Proxy
Statement") and the Scheme Document (which shall be on
terms consistent with the Rule 2.7 Announcement) and all other
documentation necessary to effect the Scheme and to convene the EGM
and Scheme Meeting, including any materials required to be filed
with the SEC in connection with the foregoing, (ii) provide Parent
with drafts of the Proxy Statement and the Scheme Document and
afford Parent a reasonable opportunity to review and comment on the
Proxy Statement and the Scheme Document and such other documents
and shall consider such comments in good faith and (iii) subject to
the foregoing clauses (i) and (ii), as promptly as reasonably
practicable after the date of this Agreement (but in no event later
than December 30, 2022), cause the
preliminary Proxy Statement and the Scheme Document to be filed
with the SEC and the Irish Takeover Panel (in accordance with Rule
41.1(b) of the Irish Takeover Rules).
(b) for the purpose of implementing the Scheme, instruct an
Irish qualified barrister (of senior counsel standing) (the
"Scheme Barrister") and provide Parent and its
Representatives with the opportunity to attend any meetings with
the Scheme Barrister to discuss matters pertaining to the Scheme
and any material issues arising in connection with it (except to
the extent the Scheme Barrister is to advise on matters relating to
the fiduciary duties of the directors of the Company or their
responsibilities under the Irish Takeover Rules, a Company
Alternative Proposal or the termination of this Agreement pursuant
to and in accordance with Section 9);
(c) as promptly as reasonably practicable, notify Parent upon
the receipt of any comments from the Irish Takeover Panel or the
SEC on, or any request from the Irish Takeover Panel or the SEC for
amendments or supplements to, the Proxy Statement, the Scheme
Document, the Company Equity Award Holder Proposal and the related
forms of proxy and provide Parent with copies of all material
written correspondence between it and its Representatives and the
Irish Takeover Panel or the SEC relating to such documents;
(d) use its reasonable best efforts to respond to and resolve
all Irish Takeover Panel and SEC comments with respect to the Proxy
Statement and the Scheme Document as promptly as reasonably
practicable after receipt thereof;
(e) as promptly as reasonably practicable, notify Parent of any
other matter of which it becomes aware which would reasonably be
expected to materially delay or prevent filing of the Proxy
Statement or the Scheme Document with the SEC and the Irish
Takeover Panel, as applicable, or implementation of the Scheme as
the case may be;
(f) prior to filing or sending any amendment or supplement to
the Proxy Statement or the Scheme Document requested by the Irish
Takeover Panel or the SEC, or responding in writing to any comments
of the Irish Takeover Panel or the SEC with respect thereto, the
Company shall provide Parent with a reasonable opportunity to
review and comment on such document or response and consider in
good faith such comments;
(g) cause the Proxy Statement to be mailed as promptly as
reasonably practicable after the date on which the SEC confirms
that it will not review the Proxy Statement (which confirmation
will be deemed to occur if the SEC has not affirmatively notified
the Company on or prior to the 10th calendar day after filing the
Proxy Statement) or that it has no further comments on the Proxy
Statement;
(h) to the extent that clearance of the Proxy Statement or the
Scheme Document by the Irish Takeover Panel might require that
waivers or derogations in respect of the Takeover Rules be sought
and obtained from the Irish Takeover Panel, make a submission for
(and use reasonable best efforts to have approved) such waiver or
derogation as promptly as reasonably practicable after having
provided Parent with a reasonable opportunity to review and comment
on such submission and considering in good faith such comments;
(i) provide Parent with drafts of any and all pleadings,
affidavits, orders, originating notices of motion or other
originating pleadings or notices of motion and other filings
prepared by the Company for submission to the Irish High Court in
connection with the Scheme prior to their filing, and afford Parent
reasonable opportunities to review and comment on all such
documents and consider in good faith such comments;
(j) as promptly as reasonably practicable (taking into account
any requirements of the Irish Takeover Panel with respect to the
Scheme Document and the SEC review (if any) with respect to the
Proxy Statement, that must be satisfied prior to the release of the
Scheme Document), but in any event not later than 4:30 p.m. on the Wednesday in the week falling
immediately after the Clearance Date, the Company shall file the
originating notice of motion, the notice of motion for entry to the
commercial division of the Irish High Court and any ancillary court
papers with the Central Office of the Irish High Court for the
purpose of commencing the court application to seek directions
under Section 450(5) of the Irish Companies Act as to the
appropriate meetings to be held and to order that the Scheme
Meeting be convened and, thereafter, as promptly as reasonably
practicable, make all necessary applications to the Irish High
Court in connection with the implementation of the Scheme
(including the application for directions under Section 450(5) of
the Irish Companies Act as to the appropriate meetings to be held
and to order that the Scheme Meeting be convened as promptly as is
reasonably practicable so as to be held within 35 calendar days of
such directions), and to use its reasonable best efforts to ensure
that the hearing of such proceedings occurs as promptly as is
reasonably practicable in order to facilitate sending the Scheme
Document and seek such directions of the Irish High Court as it
considers necessary or desirable in connection with such Scheme
Meeting and thereafter comply with such directions;
(k) procure the publication of the requisite advertisements and
sending of the Scheme Document (in a form acceptable to the Irish
Takeover Panel), Proxy Statement and the related forms of proxy for
the use at the Scheme Meeting and EGM (the form of which shall be
agreed between the Parties, acting reasonably) (i) to the Company
Shareholders on the register of members of the Company on the
record date as agreed with the Irish High Court, as promptly as
reasonably practicable after securing approval of the Irish High
Court to send such documents, and
(ii) to the holders of the Company Options and the Company Share
Awards as of such date, for information only, as promptly as
reasonably practicable after securing approval of the Irish High
Court to send such documents, and thereafter shall publish or post
such other documents and information (the form of which shall be
agreed between the Parties, acting reasonably) as the Irish High
Court or the Irish Takeover Panel may approve or direct from time
to time;
(l) unless the Company Board has effected a Company Change of
Recommendation pursuant to and in accordance with Section 5.2,
procure that the Proxy Statement and the Scheme Document include
the Scheme Recommendation;
(m) include in the Scheme Document a notice convening the EGM to
be held immediately following the Scheme Meeting to consider and,
if thought fit, approve the EGM Resolutions;
(n) prior to the Scheme Meeting, keep Parent reasonably informed
on a reasonably current basis (in each case to the extent the
Company reasonably has access to such information) of the number of
proxy votes received in respect of the Resolutions, and in any
event provide such number promptly upon the request of Parent or
its Representatives and, unless the Company Board has effected a
Company Change of Recommendation pursuant to and in accordance with
Section 5.2, use commercially reasonable efforts to solicit proxies
as may be necessary to pass the Resolutions at the Scheme Meeting
or the EGM;
(o) unless this Agreement has been terminated pursuant to and in
accordance with Section 9.1, hold the Scheme Meeting and EGM on the
date set out in the Scheme Document, or such later date as may be
agreed in writing by the Parties (such agreements not to be
unreasonably withheld, conditioned or delayed), and in such a
manner as shall be approved, if necessary, by the Irish High Court
or the Irish Takeover Panel, and propose the Resolutions without
any amendments, unless such amendments have been agreed to in
writing by Parent, such agreement not to be unreasonably withheld,
conditioned or delayed;
(p) subject to the terms of this Agreement, afford all such
cooperation and assistance as may reasonably be requested of it by
Parent in respect of the preparation and verification of any
document or in connection with any Clearance or confirmation
required for the implementation of the Scheme, including the
provision to Parent in a timely manner of such information and
confirmations relating to it, its Subsidiaries and any of its or
their respective directors or employees as Parent may reasonably
request;
(q) assume responsibility for the information contained in the
Scheme Document, the Proxy Statement or any other document sent to
the Company Shareholders or filed with the Irish High Court or in
any announcement issued in connection with the Acquisition, other
than information contained in any such document or announcement
relating to Parent or Acquirer Sub;
(r) review and provide comments (if any) in a reasonably timely
manner on all documentation submitted to it by or on behalf of
Parent or Acquirer Sub;
(s) following the Scheme Meeting and EGM, assuming the
Resolutions are duly passed (including by the requisite majorities
required under Section 453 of the Irish Companies Act in the case
of the Scheme Meeting) and all other Conditions are satisfied or,
in the sole discretion of the applicable Party, waived (where
permissible under the terms of the Rule 2.7 Announcement or the
Scheme Document) (with the exception of paragraphs 2.3 and 2.4 of
the Conditions and any other Conditions that are by their nature to
be satisfied on the Sanction Date, but subject to the satisfaction
or waiver (where permissible under the provisions of the Rule 2.7
Announcement or the Scheme Document) of such Conditions), take all
necessary steps on the part of the Company to prepare and issue,
serve and lodge all such court documents as are required to seek
the sanction of the Irish High Court to the Scheme as soon as
possible thereafter;
(t) give such undertakings as are required by the Irish High
Court in connection with the Scheme as are reasonably necessary or
desirable to implement the Scheme; and
(u) keep Parent reasonably informed as to the performance of the
obligations and responsibilities required of the Company pursuant
to the Scheme.
3.2 Responsibilities of Parent and Acquirer Sub in
Respect of the Scheme.
Parent and Acquirer Sub shall:
(a) either (i) instruct counsel or a solicitor to appear on its
behalf at the Scheme Meeting and undertake to the Irish High Court
to be bound by the terms of the Scheme insofar as it relates to
Parent or Acquirer Sub, or (ii) provide a written undertaking to
the Irish High Court to be bound by the terms of the Scheme insofar
as it relates to Parent or Acquirer Sub;
(b) if, and to the extent that, it or any of its Concert Parties
owns or is interested in the Company Shares, exercise all of its
rights and, insofar as lies within its powers, procure that each of
its Concert Parties shall exercise all of their respective rights,
in respect of such Company Shares so as to implement, and otherwise
support the implementation of, the Scheme, including by voting
(and, in respect of interests in the Company held via contracts for
difference or other derivative instruments, insofar as lies within
its powers, procuring that instructions are given to the holder of
the underlying Company Shares to vote) in favor of the Resolutions
or, if required by Law, the Irish High Court or the Irish Takeover
Rules, refraining from voting, at any Scheme Meeting or EGM as the
case may be;
(c) once the Scheme becomes effective, keep the Company
reasonably informed as to the performance of the obligations and
responsibilities required of Parent and Acquirer Sub pursuant to
the Scheme;
(d) subject to the terms of this Agreement (including Section
7.2 hereof) and the Scheme, afford all such cooperation and
assistance as may reasonably be requested of it by the Company in
respect of the preparation and verification of any document or in
connection with any Clearance or confirmation required for the
implementation of the Scheme, including the provision to the
Company in a timely manner of such information and confirmations
relating to it, its Subsidiaries and any of its or their respective
directors or employees as the Company may reasonably request
(including for the purposes of preparing the Scheme Document);
(e) assume responsibility for the information relating to it or
any of its Subsidiaries contained in the Scheme Document, the Proxy
Statement or any other document sent to the Company Shareholders or
filed with the Irish High Court or in any announcement issued in
connection with the Transactions;
(f) review and provide comments (if any) in a reasonably timely
manner on the Scheme Document, the Proxy Statement or any other
document to be sent to the Company Shareholders or filed with the
Irish High Court in connection with the Transaction submitted to it
by the Company;
(g) to the extent that clearance of the Proxy Statement or the
Scheme Document by the Irish Takeover Panel might require that
waivers or derogations in respect of the Takeover Rules be sought
and obtained from the Irish Takeover Panel in relation to matters
that relate to Parent and/or any of its Concert Parties, make a
submission for (and use reasonable best efforts to have approved)
such waiver or derogation as promptly as practicable after having
provided the Company with a reasonable opportunity to review and
comment on such submission and considering in good faith such
comments; and
(h) as promptly as practicable, notify the Company of any other
matter of which it becomes aware which would reasonably be expected
to materially delay or prevent filing of the Proxy Statement or the
Scheme Document with the SEC and the Irish Takeover Panel, as
applicable, or implementation of the Scheme, as the case may
be.
3.3 Mutual Responsibilities of the Parties.
(a) If any of the Parties becomes aware of any information that,
pursuant to the Irish Takeover Rules, the Irish Companies Act, the
Securities Act or the Exchange Act, should be disclosed in an
amendment or supplement to the Scheme Document or the Proxy
Statement, then such Party shall promptly inform the other Party
thereof and the Parties shall cooperate with each other in
submitting or filing such amendment or supplement with the Irish
Takeover Panel, the SEC or the Irish High Court, as applicable,
and, if required, in sending such amendment or supplement to the
Company Shareholders and, for information only, if required, to the
Company Equity Award Holders. Each of the Parties agrees to
promptly (i) correct any information provided by it specifically
for inclusion or incorporation by reference in the Scheme Document
or the Proxy Statement, as applicable, if and to the extent that
such information shall have become false or misleading in any
material respect and (ii) supplement the information provided by it
specifically for inclusion or incorporation by reference in the
Scheme Document or the Proxy Statement, as applicable, to include
any information that shall become necessary in order to make the
statements in the Scheme Document or the Proxy Statement, as
applicable, in light of the circumstances under which they were
made, not misleading. The Company further agrees to cause the
Scheme Document or the Proxy Statement, as applicable, as so
corrected or supplemented promptly to be filed with the Irish
Takeover Panel and the SEC and to be sent to the Company
Shareholders and for information only, if required, to the Company
Equity Award Holders, in each case as and to the extent required by
applicable Laws. For purposes of this Section 3.3(a), any
information concerning the Company Group will be deemed to have
been provided by the Company, and any information concerning the
Parent Group will be deemed to have been provided by Parent or
Acquirer Sub.
(b) Each Party shall provide the other Party with reasonable
prior notice of any proposed material oral communication with the
SEC, the Irish Takeover Panel or the Irish High Court and, except
to the extent prohibited by the SEC, the Irish Takeover Panel or
the Irish High Court, afford the other Party reasonable opportunity
to participate therein, other than with respect to any such
communication to the extent related to a Company Alternative
Proposal or the termination of this Agreement pursuant to and in
accordance with Section 9.
(c) Each Party shall promptly provide to each other Party, on
request, a copy of any record, memorandum, agreement, contract,
notice, certificate, article, letter, email, written communication,
presentation, report, valuation, written consent or other document
within the Party's possession or power of procurement, which that
other Party is required to publish on a website pursuant to the
Irish Takeover Rules.
3.4 Dealings with the Irish Takeover Panel.
(a) Each of the Parties will (x) give the other reasonable prior
notice of any proposed meeting or material substantive discussion
or correspondence between it or its Representatives with the Irish
Takeover Panel, or any amendment to be proposed to the Scheme in
connection therewith, and, except to the extent any such
correspondence relates to a Company Alternative Proposal or the
termination of this Agreement pursuant to and in accordance with
Section 9, afford the other reasonable opportunities to review and
make comments and suggestions with respect to the same and consider
in good faith such comments and suggestions, and (y) except to the
extent any such meeting, discussion, correspondence or submission
relates to a Company Alternative Proposal or the termination of
this Agreement pursuant to and in accordance with Section 9, keep
the other reasonably informed of all such meetings, discussions or
correspondence that it or its Representative(s) have with the Irish
Takeover Panel and not participate in any meeting or discussion
with the Irish Takeover Panel concerning this Agreement or the
Transactions unless it consults with the other Party in advance,
and, unless prohibited by the Irish Takeover Panel, gives such
other Party the opportunity to attend and provide copies of all
written submissions it makes to the Irish Takeover Panel and copies
(or, where verbal, a verbal or written summary of the substance) of
the Irish Takeover Panel responses thereto provided always
that any correspondence or other information required to be
provided under this Section 3.4 may be redacted:
(i) to remove references concerning the valuation of the
businesses of the Company;
(ii) to prevent the exchange of confidential information as
required by applicable Laws (provided that the redacting
Party shall use its reasonable best efforts to cause such
information to be provided in a manner that would not result in
such confidentiality concerns); and
(iii) as necessary to address reasonable privilege concerns
(provided that the redacting Party shall use its reasonable
best efforts to cause such information to be provided in a manner
that would not result in such privilege concerns).
(b) The Company undertakes, if so reasonably requested by Parent
to, as promptly as reasonably practicable, provide its written
consent to Parent and to the Irish Takeover Panel in respect of any
application made by Parent to the Irish Takeover Panel:
(i) to redact any commercially sensitive or confidential
information specific to Parent's financing arrangements for the
Acquisition ("Parent Financing Information") from any
documents that Parent is required to publish on a website pursuant
to Rule 26.3(v)(b)(xi) of the Irish Takeover Rules;
(ii) for a derogation from the requirement under the Irish
Takeover Rules to disclose Parent Financing Information in the
Scheme Document, any supplemental document or other document sent
to the Company Shareholders or the Company Equity Award Holders
pursuant to the Irish Takeover Rules;
(iii) for a derogation from Rule 16.1 or 20.1 of the Irish
Takeover Rules to permit Parent to implement, and to pay fees to
lenders in connection with, its Financing and syndication
arrangements with respect to its Financing, and to provide
information to lenders and prospective lenders on such terms as the
Irish Takeover Panel may permit; and
(iv) for a derogation from the disclosure requirements of Rule
24.4 of the Irish Takeover Rules, seeking consent to the
aggregation of dealings for purposes of disclosure in the Scheme
Document and seeking consent to the aggregation on a bi-weekly
basis of changes in information announced pursuant to Rule 2.12 of
the Irish Takeover Rules.
(c) Parent undertakes, if so requested by the Company to, as
promptly as practicable, provide its written consent to the Company
and to the Irish Takeover Panel in respect of any application made
by the Company to the Irish Takeover Panel (i) to permit entering
into and effecting the equity, retention, bonus and/or benefit
arrangements contemplated by Section 5.1 of the Company Disclosure
Schedule, and (ii) with respect to any matter set forth on Section
5.1 of the Company Disclosure Schedule.
(d) Subject to the terms and conditions of this Agreement,
Parent and the Company undertake, if so requested by the other
Party to, as promptly as reasonably practicable, issue its written
consent to the other Party and to the Irish Takeover Panel in
respect of any application reasonably requesting any derogation,
permission or consent from the Irish Takeover Panel in connection
with the Irish Takeover Rules, which consent shall also constitute
consent for all purposes of this Agreement.
(e) Notwithstanding the foregoing provisions of this Section
3.4, neither the Company nor Parent shall be required to take any
action pursuant to the foregoing provisions (a) through (d) if such
action is prohibited by the Irish Takeover Panel (unless the Irish
Takeover Panel decision is successfully appealed by either the
Company or Parent).
(f) Nothing in this Agreement shall in any way limit the
Parties' obligations under the Irish Takeover Rules.
3.5 No Scheme Amendment by the Company. Except as
required by applicable Laws, the Irish High Court and/or the Irish
Takeover Panel, and, where applicable, with the consent of the
Irish High Court and/or the Irish Takeover Panel, the Company shall
not take any of the following actions after sending the Scheme
Document to the Company Shareholders, in each case, without the
prior written consent of Parent (such consent not to unreasonably
withheld, conditioned or delayed):
(a) amend the Scheme;
(b) adjourn or postpone (or propose an adjournment or
postponement of) the Scheme Meeting or the EGM; provided,
however, that the Company may, without the consent of, but
after consultation with, Parent, adjourn or postpone (or propose to
adjourn or postpone) the Scheme Meeting or EGM if (i) in the case
of adjournment, such adjournment was requested by the Company
Shareholders (but only to the extent the proposal for such
adjournment was not proposed by the Company or any of its
Affiliates or their respective Representatives), (ii) reasonably
necessary to ensure that any required supplement or amendment to
the Scheme Document or Proxy Statement is provided to the Company
Shareholders or to permit dissemination of information which is
material to the Company Shareholders voting at the Scheme Meeting
or the EGM (but only for so long as the Company Board determines in
good faith, after having consulted with outside counsel, as is
reasonably necessary or advisable to give the Company Shareholders
sufficient time to evaluate any such disclosure or information), or
(iii) as of the time the Scheme Meeting or EGM is scheduled (as set
out in the Scheme Document or Proxy Statement), there are
insufficient Company Shares represented (either in person or by
proxy) (A) to constitute a quorum necessary to conduct the business
of the Scheme Meeting or the EGM (but only until a meeting can be
held at which there are a sufficient number of Company Shares
represented to constitute a quorum) or (B) voting for the approval
of the applicable Resolutions (but only until a meeting can be held
at which there are a sufficient number of votes of the Company
Shareholders to approve the applicable Resolutions);
provided, further, that, notwithstanding the
foregoing, other than any adjournments or postponements required by
applicable Laws, including adjournments or postponements to the
extent reasonably necessary or advisable to ensure that any
required supplement or amendment to the Proxy Statement is provided
or made available to the Company Shareholders or to permit
dissemination of information which is material to shareholders
voting at the Scheme Meeting and EGM and to give the Company
Shareholders sufficient time to evaluate any such supplement or
amendment or other information, no such adjournment or postponement
pursuant to clause (i) or (iii) shall, without the prior written
consent of Parent (such consent not to be unreasonably withheld,
conditioned or delayed), be for a period exceeding 10 Business Days
and the Company may not adjourn or postpone the Scheme Meeting or
the EGM pursuant to clause (i) or (iii) more than two times; or
(c) amend the Resolutions (in each case, in the form set out in
the Scheme Document).
3.6 Switching to a Takeover Offer.
(a) Subject to the terms of this Section 3.6, in the event that
Parent reasonably determines that a competitive situation (as that
term is defined in the Irish Takeover Rules) exists or, based on
facts known at the time, may reasonably be expected to arise in
connection with the Acquisition, Parent may elect (subject to
receiving the Irish Takeover Panel's consent, if required) to
implement the Acquisition by way of the Takeover Offer (rather than
the Scheme), whether or not the Scheme Document has been
posted.
(b) If Parent elects to implement the Acquisition by way of the
Takeover Offer, the Company undertakes to provide Parent and its
Representatives as promptly as reasonably practicable with all such
information about the Company Group (including directors and their
connected persons) as may reasonably be required for inclusion in
the Takeover Offer Document and to provide all such other
assistance as may reasonably be required by the Irish Takeover
Rules in connection with the preparation of the Takeover Offer
Document, including reasonable access to, and ensuring the
provision of reasonable assistance by, its management and
Representatives.
(c) If Parent elects to implement the Acquisition by way of a
Takeover Offer, the Company agrees:
(i) that the Takeover Offer Document will contain provisions
consistent with the terms and conditions set out in the Rule 2.7
Announcement, the relevant Conditions and such other further terms
and conditions as agreed (including any modification thereto)
between Parent and the Irish Takeover Panel; provided,
however, that the terms and conditions of the Takeover Offer
shall be at least as favorable to the Company Shareholders and the
Company Equity Award Holders as those which would apply in relation
to the Scheme (except for the 80% acceptance condition contemplated
by paragraph 9 of the Conditions);
(ii) to reasonably co-operate and consult with Parent in the
preparation of the Takeover Offer Document or any other document or
filing which is required for the purposes of implementing the
Acquisition; and
(iii) that, subject to the obligations of the Company Board
under the Irish Takeover Rules, and unless the Company Board has
made a Company Change of Recommendation pursuant to and in
accordance with Section 5.2, the Takeover Offer shall incorporate a
recommendation to the Company Shareholders from the Company Board
to accept the Takeover Offer and such recommendation shall not
subsequently be withdrawn, adversely modified or qualified except
as contemplated by Section 5.2.
(d) If Parent elects to implement the Acquisition by way of the
Takeover Offer in accordance with Section 3.6(a), the Parties
mutually agree:
(i) to prepare and file with, or submit to, the SEC, the Irish
Takeover Panel and the Irish High Court, all documents, amendments
and supplements required to be filed therewith or submitted thereto
pursuant to the Irish Takeover Rules, the Securities Act, the
Exchange Act, or otherwise by applicable Laws in connection with
the Takeover Offer and to make any applications or initiate any
appearances as may be required by or desirable to the Irish High
Court for the purpose of discontinuing, cancelling or terminating
the Irish High Court proceedings initiated in connection with the
Scheme and, unless the Company Board has made a Company Change of
Recommendation, each Party shall have reasonable opportunities to
review and make comments on all such documents, amendments and
supplements and, following good faith consideration of such
comments by the other Party and approval of such documents,
amendments and supplements by the other Party, which approval shall
not be unreasonably withheld, conditioned or delayed, file or
submit, as the case may be, such documents, amendments and
supplements with or to the SEC, the Irish Takeover Panel and the
Irish High Court (as applicable);
(ii) to provide the other Party with any comments received from
the SEC, the Irish Takeover Panel or the Irish High Court on any
documents filed by it with the SEC, the Irish Takeover Panel or the
Irish High Court promptly after receipt thereof, other than with
respect to any such documents to the extent related to a Company
Alternative Proposal; and
(iii) to provide the other Party with reasonable prior notice of
any proposed material oral communication with the SEC, the Irish
Takeover Panel or the High Court and, except to the extent
prohibited by the SEC, the Irish Takeover Panel or the High Court,
afford the other Party reasonable opportunity to participate
therein, other than with respect to any such communication to the
extent related to a Company Alternative Proposal.
(e) If the Takeover Offer is consummated, Parent shall cause
Acquirer Sub (or their respective designees) to effect as promptly
as practicable, following it becoming entitled under the Irish
Companies Act to do so, a compulsory acquisition of any Company
Shares under Section 457 of the Irish Companies Act not acquired in
the Takeover Offer for the same consideration per share as provided
for in the Takeover Offer.
(f) For clarity and except as may be required by the Irish
Takeover Rules (and without limiting any other provision of this
Agreement), nothing in this Section 3.6 shall require the Company
to provide Parent with any information with respect to, or to
otherwise take or fail to take any action in connection with the
Company's consideration of or response to, any actual or potential
Company Alternative Proposal.
SECTION 4. EQUITY AWARDS
4.1 The Company Equity Awards.
(a) Company Options. Each Company Option that is
outstanding as of immediately prior to the Effective Time (whether
or not vested) shall, as of the Effective Time, by virtue of the
occurrence of the Effective Time and without any further action on
the part of the holder thereof, Parent, or the Company, be canceled
and converted into the right to receive cash, without interest, in
an amount equal to the product of (i) the total number of Company
Shares subject to such Company Option immediately prior to the
Effective Time, multiplied by (ii) the excess of (A) the
Consideration over (B) the exercise price payable per Share under
such Company Option, which amount shall be paid in accordance with
Section 8.2 (the "Option Consideration"). No holder
of a Company Option that has an exercise price per Share that is
equal to or greater than the Consideration shall be entitled to any
payment with respect to any such canceled Company Option before or
after the Effective Time, and any such Company Option shall be
canceled and shall cease to exist as of the Effective Time and no
consideration shall be delivered in exchange therefor.
(b) Company Share Awards.
(i) Each Company RSU Award that is outstanding as of immediately
prior to the Effective Time (whether or not vested) shall, by
virtue of the occurrence of the Effective Time and without any
further action on the part of the holder thereof, Parent, or the
Company (A) if granted to a non-employee member of the Company
Board or held by a person who, as of the Completion Date, is a
former service-provider of the Company, be canceled and converted
into the right to receive a cash, without interest, amount equal to
(w) the total number of Company Shares subject to such Company RSU
Award immediately prior to the Effective Time multiplied by (x) the
Consideration, which amount shall be paid in accordance with
Section 8.2 (the "RSU Cash Consideration") and (B) if
not granted to an individual described in clause (A), be canceled
and converted into a restricted stock unit (each, a "Parent
RSU") denominated in shares of common stock, $0.0001 par value, of Parent ("Parent
Common Stock"). The number of shares of Parent Common Stock
subject to each such Parent RSU shall be equal to the product
(rounded down to the nearest whole number) of (y) the number of
shares of Company Shares subject to such Company RSU Award
immediately prior to the Effective Time multiplied by (z) the
Equity Award Exchange Ratio. Except as specifically provided above,
following the Effective Time, each such Parent RSU shall continue
to be governed by the same terms and conditions (including vesting
terms) as were applicable to the applicable Company RSU Award
immediately prior to the Effective Time. For purposes of this
Agreement, the term "Equity Award Exchange
Ratio" means (1) the Consideration divided
by (2) the volume weighted average of the per share closing
price of Parent Common Stock on the Nasdaq (as reported in the
Eastern Edition of The Wall Street Journal or, if not
reported thereby, another authoritative source) for five (5)
trading days ending on the second Business Day prior to the
Completion.
(ii) Each Company PSU Award that is outstanding as of
immediately prior to the Effective Time (whether or not vested)
shall by virtue of the occurrence of the Effective Time without any
further action on the part of the holder thereof, Parent, or the
Company be canceled and converted into the right to receive a cash
amount, without interest, equal to (A) the total number of Company
Shares issuable in settlement of such Company PSU Award as set
forth below ("PSU Achievement") multiplied by (B) the
Consideration, which amount shall be paid in accordance with
Section 8.2 (the "PSU Consideration"). PSU
Achievement shall be determined in accordance with the terms of the
applicable Company PSU Award, as determined by the Company Board or
the compensation committee of the Company Board prior to the
Effective Time, in consultation with, but not subject to the
approval of, Parent.
4.2 Further Actions. Prior to the Effective Time,
the Company Board (or, if appropriate, any committee thereof
administering the Company Share Plans) shall take all actions,
including by adopting any resolutions, obtaining any consents or
approvals or otherwise, reasonably necessary to effectuate the
transactions contemplated by this Section 4.
4.3 Amendment of Articles. The Company shall
procure that a special resolution be proposed to the Company
Shareholders at the EGM proposing that the Company Memorandum and
Articles of Association be amended so that any Company Shares
allotted following Scheme Record Time will either be subject to the
terms of the Scheme or acquired by Parent for the same
consideration per Company Share as shall be payable to the Company
Shareholders under the Scheme (depending upon the timing of such
allotment); provided, however, that nothing in such
amendment to the Company Memorandum and Articles of Association
shall prohibit the sale (whether on a stock exchange or otherwise)
of any Company Shares issued on the exercise of Company Options or
vesting or settlement of Company Share Awards, as applicable,
following the EGM but prior to the Scheme Record Time approved by
the Irish High Court, it being always acknowledged that each and
every Company Share will be bound by the terms of the Scheme.
SECTION 5. THE COMPANY CONDUCT
5.1 Conduct of Business by the Company.
(a) From the date of this Agreement until the earlier of the
Completion and termination of this Agreement pursuant to and in
accordance with Section 9, except (w) as prohibited or required by
applicable Laws, including Irish Takeover Rules or Nasdaq rules,
(x) for any necessary or advisable actions taken in good faith to
comply with or implement applicable local COVID-19 Measures, (y) as
set out in Section 5.1 or 7.4(f) of the Company Disclosure
Schedule, or (z) as otherwise required or expressly contemplated by
this Agreement, unless Parent shall otherwise consent in writing
(which consent shall not be unreasonably withheld, conditioned or
delayed), the Company shall, and shall cause each of its
Subsidiaries to, use commercially reasonable efforts (1) to conduct
its business in the ordinary course of business and (2) to preserve
intact its business organization and relationships with significant
customers, suppliers, licensors, licensees and other Third Parties
and keep available the services of its present officers and
employees (without any obligation to put in place any retention
program); provided, however, that no action taken by
the Company or its Subsidiaries with respect to matters explicitly
permitted by an exception to any of Section 5.1(b)(i) through
(xviii) will be a breach of this sentence.
(b) Without limiting the generality of the foregoing, from the
date of this Agreement until the earlier of the Completion and
termination of this Agreement pursuant to and in accordance with
Section 9, except (A) as prohibited or required by applicable Laws,
including Irish Takeover Rules or Nasdaq rules, (B) as set out in
Section 5.1 of the Company Disclosure Schedule, or (C) as otherwise
required or expressly contemplated by this Agreement, without
Parent's prior written consent (which shall not be unreasonably
withheld, conditioned or delayed), the Company shall not, and shall
cause each of its Subsidiaries not to:
(i) in the case of the Company and each of its Subsidiaries,
amend its Organizational Documents other than, with respect to each
Subsidiary, amendments to Organizational Documents that would not
prohibit or hinder, impede or delay or otherwise adversely impact
the consummation of the Transactions;
(ii) (A) subject to the provisions in Section 5.2, merge or
consolidate with any other Person, or acquire (including by merger,
consolidation, or acquisition of stock or assets), directly or
indirectly, any interest in any corporation, partnership, other
business organization or any division or business thereof or any
assets, securities or property that (in the case of such assets,
securities or property) constitute all or a material portion of
such Person or any division or business thereof, other than
transactions (x) solely among the Company and one or more of its
wholly owned Subsidiaries or (y) solely among the Company's direct
and indirect wholly owned Subsidiaries, or (B) adopt a plan of
complete or partial liquidation, dissolution, recapitalization or
restructuring, other than a liquidation or dissolution of any of
the Company's immaterial wholly owned Subsidiaries;
(iii) (A) split, combine or reclassify any shares of its capital
stock (other than transactions (1) solely among the Company and one
or more of its wholly owned Subsidiaries or (2) solely among the
Company's wholly owned Subsidiaries), (B) amend any term or alter
any rights of any of its outstanding Equity Securities, (C)
declare, set aside or pay any dividend or make any other
distribution (whether in cash, stock, property or any combination
thereof) in respect of any Equity Securities, other than dividends
or distributions by a Subsidiary of the Company to the Company or a
wholly owned Subsidiary of the Company or (D) redeem, repurchase,
cancel or otherwise acquire or offer to redeem, repurchase, or
otherwise acquire any of its Equity Securities or any Equity
Securities of any Subsidiary of the Company, other than (x)
repurchases or withholding of Company Shares in connection with the
exercise of Company Options or the vesting or settlement of Company
Share Awards (including in satisfaction of any amounts required to
be deducted or withheld under applicable Laws) in accordance with
the terms of such Company Equity Awards outstanding as of the date
of this Agreement (in accordance with their existing terms as of
the date of this Agreement) or granted after the date of this
Agreement (to the extent permitted by Section 5.1 of the Company
Disclosure Schedule) and (y) transactions among the Company and its
wholly owned Subsidiaries or among the Company's wholly owned
Subsidiaries;
(iv) issue, deliver or sell, or authorize the issuance, delivery
or sale of, any Equity Securities, other than (A) the issuance of
Company Equity Awards permitted by Section 5.1 of the Company
Disclosure Schedule, the issuance of any Company Shares upon the
exercise of Company Options, the issuance of any Company Shares in
connection with any offering period in existence under the Company
ESPP, the vesting or settlement of Company Share Awards, or the
withholding of Company Shares to satisfy Tax obligations pertaining
to the exercise of Company Options or the vesting or settlement of
Company Equity Awards or to satisfy the exercise price, subject to
applicable Law, with respect to Company Options or to effectuate an
optionee direction upon exercise of Company Options that, in each
case, are (x) outstanding as of the date of this Agreement and in
accordance with the terms of the Company ESPP or Company Equity
Awards (as applicable) in existence as of the date of this
Agreement, or (y) granted after the date of this Agreement (to the
extent permitted by Section 5.1 of the Company Disclosure
Schedule), or (B) in connection with transactions (1) solely among
the Company and one or more of its wholly owned Subsidiaries or (2)
solely among the Company's wholly owned Subsidiaries;
(v) except as otherwise permitted under Section 5.1(b)(iv), (A)
establish, adopt, terminate or materially amend any Employee
Agreement or Employee Plan (or any plan, program, or practice that
would be an Employee Agreement or an Employee Plan if it were in
existence on the date of this Agreement), (B) increase in any
manner the compensation or consulting fees, bonus, pension,
welfare, fringe or other benefits, severance or termination pay of
any employee of the Company or any of its Subsidiaries, (C) amend
or waive any of its rights under, or accelerate the vesting under,
any provision of any Employee Agreement or any of the material
Employee Plans (or any plan, program, arrangement, practice or
agreement that would be an Employee Agreement or an Employee Plan
if it were in existence on the date of this Agreement), (D)
materially change any actuarial or other assumptions used to
calculate funding obligations with respect to any Employee Plan or
Employee Agreement that is required by applicable Law to be funded
or change the manner in which contributions to such plans are made
or the basis on which such contributions are determined or (E)
forgive any loans or issue any loans (other than routine travel
advances or other routine business expenses issued or incurred in
the ordinary course of business) to any employee of the Company or
any of its Subsidiaries, except as may be required by GAAP, except
that the Company Group may: (1) make annual or quarterly bonus or
commission payments for completed periods of performance based on
actual performance in the ordinary course of business consistent
with past practice, including bonus or commission payments pursuant
to existing bonus or commission plans or Contracts and payments to
employees; and (2) establish annual or quarterly commission or
incentive compensation plans for employee sales force in the
ordinary course of business consistent with past practice;
(vi) except as required pursuant to the terms of an existing
Employee Plan or Employee Agreement, (A) enter into (1) any
change-of-control agreement with any executive officer, employee,
director or independent contractor or (2) any retention agreement
with any executive officer, employee, director or independent
contractor, (B) enter into any employment or other agreement
providing for severance or termination benefits (1) that are more
favorable than the severance or termination benefits provided by
the severance plans or agreements in existence as of the date of
this Agreement or (2) to any executive officer, director or non-
executive employee with an annual base salary greater than
$250,000 or any consulting agreement
with an independent contractor who is a natural Person with an
annual base compensation greater than $250,000, (C) except to fill vacancies due to a
voluntary resignation, hire any executive officer, director or
non-executive employee with an annual base salary in excess of
$250,000 or (D) terminate the
employment of any executive officer or non-executive employee with
the title of vice president or higher, other than for cause;
(vii) make or authorize any capital expenditure that exceeds the
amounts set out for the respective periods set forth in paragraph
19 of Section 5.1 of the Company Disclosure Schedule;
(viii) (A) acquire any assets or properties (including
Intellectual Property), or (B) sell or otherwise dispose of, divest
or spin-off, transfer, or assign any assets or properties (other
than Intellectual Property, which is addressed in Section
5.1(b)(ix)), except (1) sale of the Company Group products in the
ordinary course of business, (2) assets or properties otherwise
permitted pursuant to Section 5.1(b)(vii), (3) pursuant to
dispositions of obsolete, surplus or worn out assets that are no
longer useful in the conduct of the business of the Company Group,
(4) purchases of components, raw materials, drug product,
inventory, marketing materials or equipment or other materials and
supplies with respect to the Company's operations, drug product
manufacturing, supply chain, marketing strategy or research and
development, in each case, in the ordinary course of business, (5)
intercompany assignment of assets or properties, (6) to the extent
not in excess of $20,000,000 in the
aggregate, or (7) as permitted under clause (vii);
(ix) sell, divest, transfer, assign, license, sublicense, grant
a covenant not to assert with respect to, create or incur any Lien
(other than a Permitted Lien) on, or otherwise abandon, cancel, let
lapse or dispose of, any material Company Intellectual Property,
except (A) solely between or among the Company Group; (B) with
respect to applications of Registered IP, in the ordinary course of
prosecution in the United States
Patent and Trademark Office, United States Copyright Office, and
foreign equivalents thereof, and (C) entry into (1) Standard
Contracts or (2) non-exclusive license agreements, or the creation
or incurrence of mortgages, liens, pledges, charges or security
interests, in each case, in the ordinary course of business
consistent with past practice;
(x) except for intercompany loans and capital contributions and
sales commission advances made in the ordinary course of business
consistent with past practice, lend money or make capital
contributions or advances to or make investments in, any Person, or
incur or guarantee any Indebtedness (including the issuance of any
debt securities, warrants or other rights to acquire any debt
security but except for short-term borrowings of not more than
$15,000,000 in the aggregate,
incurred in the ordinary course of business consistent with past
practice and advances to employees and consultants for travel and
other business related expenses in the ordinary course of business
consistent with past practice);
(xi) commence any Legal Proceeding, except with respect to: (A)
routine matters in the ordinary course of business (including
patent infringement related to generic product filings); (B) such
cases where the Company reasonably determines in good faith that
the failure to commence suit would result in a material impairment
of a valuable aspect of its business (provided that the
Company consults with Parent and considers the views and comments
of Parent with respect to such Legal Proceedings prior to
commencement thereof); or (C) a breach of this Agreement or any
other agreements contemplated hereby;
(xii) except as set forth in Section 7.10, settle, release,
waive or compromise, or offer or propose to settle, release, waive
or compromise, any Legal Proceeding or other claim (or threatened
Legal Proceeding or other claim), other than (A) any Legal
Proceeding relating to a breach of this Agreement or any other
agreements contemplated hereby, or (B) a settlement that results
solely in a monetary obligation involving only the payment of
monies (without the admission of wrongdoing) by the Company Group
of not more than $2,000,000
individually or $10,000,000 in the
aggregate (net of insurance proceeds) and that does not involve any
license, cross license or similar agreement with respect to rights
to Intellectual Property;
(xiii) create or incur any Lien (other than a Permitted Lien) on
any material assets or properties (other than Intellectual
Property, which is addressed in Section 5.1(b)(ix)) other than (A)
Liens created or incurred in the ordinary course of business
consistent with past practice or (B) Liens that may be discharged
at or prior to the Completion that are not material in amount or
effect on the business of the Company Group;
(xiv) (A) enter into any Material Contract other than in the
ordinary course of business consistent with past practice
(provided, that no Contract of the type described in
Sections 6.1(j)(ii), 6.1(j)(v) or 6.1(j)(xiv) shall be entered into
without the prior written consent of Parent (which shall not be
unreasonably withheld, conditioned or delayed)) or (B) terminate,
renew, extend or in any material respect modify or amend (including
waiving, releasing or assigning any material right or claim
thereunder) any Material Contract, other than in the ordinary
course of business consistent with past practice; provided,
that, for purposes of this Section 5.1(b)(xiv), "Material
Contracts" shall include any Company Contract that requires by its
terms the payment or delivery of cash or other consideration by or
to a member of the Company Group in an amount having an expected
value in excess of $25,000,000 in any
single fiscal year after 2022;
(xv) make any material change in any method of financial
accounting or financial accounting principles or practices, except
for any such change required by reason of (or, in the reasonable
good-faith judgment of the Company, advisable under) a change in
GAAP or applicable Laws;
(xvi) (A) make, change or revoke any material Tax election; (B)
adopt or change any material method of Tax accounting; (C) enter
into any material "closing agreement" within the meaning of Section
7121 of the Code (or any similar provision of state, local, or non-
U.S. Law) with respect to Taxes; (D) settle, compromise or
surrender any material Tax claim, audit or assessment for an amount
in excess of reserves therefor on the financial statements of the
Company and its Subsidiaries; (E) file any material amended Tax
Return; (F) affirmatively surrender any right to claim a material
Tax refund; or (G) take or cause any action which may reasonably be
expected to cause the representations set forth in Section
6.1(p)(vi) or Section 6.1(p)(vii) to be untrue;
(xvii) enter into any collective bargaining agreement or other
agreement with any labor organization or recognize or certify any
labor union, works council or other labor organization as the
bargaining representative for any employees of any member of the
Company Group; or
(xviii) agree, commit or propose to do any of the foregoing.
Notwithstanding the foregoing, nothing contained herein shall
give to Parent or Acquirer Sub, directly or indirectly, rights to
control or direct the operations of the Company Group prior to the
Effective Time. Prior to the Effective Time, the Company and each
of the members of the Company Group shall exercise, consistent with
the terms and conditions hereof, complete control and supervision
of their respective operations.
5.2 Non-Solicitation and Company Change of
Recommendation.
(a) No Solicitation or Negotiation. Subject to any
actions which the Company is required to take so as to comply with
the requirements of the Irish Takeover Rules, from the date of this
Agreement until the earlier of the Effective Time and the
termination of this Agreement pursuant to and in accordance with
Section 9, except as otherwise set out in this Section 5.2, the
Company shall not, and it shall cause its Subsidiaries and its and
their respective directors, officers and employees not to, and it
shall use reasonable best efforts to cause its and its
Subsidiaries' other Representatives not to, directly or
indirectly:
(i) solicit, initiate or take any action to knowingly facilitate
or knowingly encourage (including by way of furnishing information
to any Person in connection with) the submission of any Company
Alternative Proposal or any indication, proposal or inquiry that
would reasonably be expected to lead to a Company Alternative
Proposal;
(ii) enter into, continue or participate in any discussions or
negotiations with, furnish any non-public information relating to
the Company or any of its Subsidiaries to, or afford access to the
business, properties, assets, personnel, books or records of the
Company or any of its Subsidiaries to, otherwise cooperate in any
way with, or knowingly assist, participate in, knowingly facilitate
or knowingly encourage any effort by, any Third Party that would
reasonably be expected to seek to make, or has made, a Company
Alternative Proposal or any indication, proposal or inquiry that
would reasonably be expected to lead to a Company Alternative
Proposal (except to notify such Person as to the existence of the
provisions of this Section 5.2);
(iii) (A) withdraw or qualify, amend or modify in any manner
adverse to Parent, the Scheme Recommendation or the recommendation
contemplated by Section 3.6(b), if applicable, (B) fail to include
the Scheme Recommendation in the Scheme Document or the Proxy
Statement, (C) recommend, adopt or approve or publicly propose to
recommend, adopt or approve any Company Alternative Proposal or (D)
fail to reaffirm the Scheme Recommendation in a statement complying
with Rule 14d-9 or Rule 14e-2(a) under the Exchange Act with regard
to a Company Alternative Proposal or in connection with such action
by the close of business on the 10th Business Day after the
commencement of such Company Alternative Proposal under Rule 14d-9
or Rule 14e-2(a) (clauses (A) through (D) of the foregoing in this
clause (iii), a "Company Change of
Recommendation");
(iv) take any action to make any "moratorium," "control share
acquisition," "fair price," "supermajority," "affiliate
transactions" or "business combination statute or regulation" or
other similar anti-takeover laws and regulations under applicable
Laws inapplicable to any Third Party or any Company Alternative
Proposal;
(v) waive or release any Person from any standstill agreement or
any standstill provisions of any Contract entered into in respect
of a Company Alternative Proposal; or
(vi) enter into any agreement in principle, letter of intent,
term sheet, merger agreement, acquisition agreement, option
agreement or other agreement providing for or relating to a Company
Alternative Proposal (other than a Company Alternative Proposal
NDA).
Nothing contained herein shall prevent the Company Board from
(x) complying with Rule 14e-2(a) or Rule 14d-9 under the Exchange
Act with regard to a Company Alternative Proposal, so long as any
action taken or statement made to so comply is consistent with this
Section 5.2 or (y) making any required disclosure to the Company
Shareholders if the Company Board determines in good faith, after
consultation with outside legal counsel, that the failure to take
such action would reasonably be expected to be inconsistent with
applicable Laws; provided that any Company Change of
Recommendation involving or relating to a Company Alternative
Proposal may only be made in accordance with Sections 5.2(b),
5.2(c), 5.2(d) and 5.2(e). For clarity, a "stop, look and
listen" disclosure or similar communication of the type
contemplated by Rule 14d-9(f) under the Exchange Act shall not
constitute a Company Change of Recommendation.
Additionally, the Company shall, and shall cause its
Subsidiaries and its and their respective directors, officers and
employees to, and shall use reasonable best efforts to cause its
and its Subsidiaries' other Representatives to, cease immediately
and cause to be terminated any and all existing activities,
discussions or negotiations, if any, with any Third Party conducted
prior to the date of this Agreement with respect to any Company
Alternative Proposal or with respect to any indication, proposal or
inquiry that would reasonably be expected to lead to a Company
Alternative Proposal. The Company will promptly (and in each case
within 36 hours from the date of this Agreement) request from each
Person (and such Person's Representatives) that has executed a
confidentiality agreement during the past six months in connection
with its consideration of a Company Alternative Proposal to return
or destroy (as provided in the terms of such applicable
confidentiality agreement) all confidential information concerning
the Company or any of its Subsidiaries and shall promptly (and in
each case within 36 hours from the date of this Agreement)
terminate all physical and electronic data access previously
granted to each such Person.
(b) Responding to Company Alternative Proposals.
Notwithstanding Section 5.2(a), if at any time prior to the receipt
of the Company Shareholder Approval (the "Company Approval
Time") (and in no event after the Company Approval Time),
the Company Board receives a written Company Alternative Proposal
made after the date of this Agreement which has not resulted from a
breach in any material respect of this Section 5.2, the Company
Board, directly or indirectly through its Representatives, may (i)
contact the Third Party that has made such Company Alternative
Proposal in order to inform such Third Party of the terms of this
Section 5.2 and clarify the terms of such Company Alternative
Proposal for the sole purpose of the Company Board informing itself
about such Company Alternative Proposal and such Third Party, and
(ii) (x) engage in negotiations or discussions with any such Third
Party that has made such an unsolicited written Company Alternative
Proposal, (y) furnish to such Third Party and its Representatives
and financing sources nonpublic information relating to the Company
or any of its Subsidiaries pursuant to a confidentiality agreement
with terms that are not materially less favorable in the aggregate
to the Company than those contained in the Confidentiality
Agreement (except that such confidentiality agreement need not
contain a standstill or similar provision) and that does not
include any restrictions that prohibits the Company from satisfying
its obligations contemplated by this Section 5.2(b) (such
agreement, a "Company Alternative Proposal NDA")
provided that all such non-public information (to the extent
that such information has not been previously provided or made
available to Parent) is provided or made available to Parent, as
the case may be, substantially concurrently with the time it is
provided or made available to such Third Party; provided,
further, that prior to and as a condition of taking any
actions described in this Section 5.2(b), the Company Board
determines in good faith, after consultation with its financial
advisor and outside legal counsel, that such Company Alternative
Proposal either constitutes or would reasonably be expected to lead
to a Company Superior Proposal.
(c) Notice. The Company shall notify Parent promptly (but
in any event within 36 hours) if any Company Alternative Proposal,
or any indication, proposal or inquiry by a Third Party that would
reasonably be expected to lead to a Company Alternative Proposal,
is received by the Company. Each such notice shall be provided in
writing and shall identify the Third Party making, and, to the
extent applicable, the material terms and conditions (including
price) of, any such Company Alternative Proposal or any such
indication, proposal or inquiry by a Third Party. Following such
initial notice, the Company shall keep Parent reasonably informed,
on a reasonably current basis, of any material changes in the
status and details of any such Company Alternative Proposal or any
such indication, proposal or inquiry and shall promptly (but in no
event later than 36 hours after receipt) provide to Parent copies
of all written proposals, offers or draft agreements relating to a
Company Alternative Proposal. Neither the Company nor any of its
Subsidiaries will enter into any agreement with any Person which
prohibits the Company from providing any information to Parent in
accordance with, or otherwise complying with, this Section 5.2.
(d) Fiduciary Exception to the Company Change of
Recommendation Provision. Notwithstanding anything to the
contrary in this Agreement, but subject to Section 5.2(e), prior to
the Company Approval Time (and in no event after the Company
Approval Time), the Company Board may (A) in response to the
receipt of a written Company Alternative Proposal received after
the date hereof that did not result from a material breach of the
Company's obligations set forth in this Section 5.2, or in response
to the occurrence of a Company Intervening Event, make a Company
Change of Recommendation, or (B) in response to the receipt of a
written Company Alternative Proposal received after the date hereof
that did not result from a material breach of the Company's
obligations set forth in this Section 5.2, effect a Company Change
of Recommendation and terminate this Agreement in accordance with
Section 9.1(a)(ii)(B) in order to substantially concurrently enter
into a definitive agreement providing for a Company Superior
Proposal if, in each case of clause (A) and clause (B), (x) in the
case of such an action taken in connection with a Company
Alternative Proposal, the Company Alternative Proposal has not been
withdrawn and the Company Board determines in good faith, after
consultation with outside legal counsel and its financial advisor
that such Company Alternative Proposal constitutes a Company
Superior Proposal and (y) the Company Board determines in good
faith, after consultation with its financial advisor and outside
legal counsel, that the failure to take such action would be
inconsistent with its directors' fiduciary duties under applicable
Laws.
(e) Last Look. The Company Board and the Company, as
applicable, shall not take any of the actions contemplated by
Section 5.2(d) unless prior to taking such action (i) the Company
has notified Parent, in writing at least four Business Days before
taking such action, that the Company intends to take such action,
which notice attaches, in the case of a Company Change of
Recommendation pursuant to Section 5.2(d)(A) in response to a
Company Superior Proposal or the termination of this Agreement
pursuant to Section 5.2(d)(B) and Section 9.1(a)(ii)(B), the most
current version of each proposed Contract providing for or related
to such Company Superior Proposal (including any Contract relating
to financing or expense reimbursement), the identity of the Third
Party(ies) making the Company Superior Proposal or, in the case of
a Company Intervening Event, a reasonably detailed description of
the facts relating to such Company Intervening Event, (ii) if
requested by Parent, during such four Business Day period, the
Company and its Representatives shall have discussed and negotiated
in good faith with Parent (to the extent that Parent desires to so
discuss or negotiate) regarding any proposal by Parent to amend the
terms of this Agreement in response to such Company Superior
Proposal or other potential Company Change of Recommendation and
(iii) after such four Business Day period, the Company Board
determines in good faith, after consultation with its financial
advisor and outside legal counsel and taking into account any
proposal by Parent to amend the terms of this Agreement, that the
failure to take such action would be inconsistent with its
fiduciary duties under applicable Laws and, in the case of any such
action in connection with a Company Alternative Proposal, such
Company Alternative Proposal continues to constitute a Company
Superior Proposal (it being understood and agreed that in the event
of any amendment to the financial terms or other material terms of
any such Company Superior Proposal, a new written notification from
the Company consistent with that described in clause (i) of this
Section 5.2(e) shall be required, and a new notice period under
clause (i) of this Section 5.2(e) shall commence, during which
notice period the Company shall be required to comply with the
requirements of this Section 5.2(e) anew, except that such new
notice period shall be for three Business Days (as opposed to four
Business Days)). After delivery of such written notice pursuant to
this Section 5.2(e), the Company shall promptly inform Parent of
all material developments affecting the material terms of any such
Company Superior Proposal.
SECTION 6. REPRESENTATIONS AND
WARRANTIES
6.1 Company Representations and Warranties.
Subject to Section 10.8 and except as disclosed (i) in any publicly
available Company SEC Document filed on or after January 1, 2020 and prior to the date of this
Agreement or (ii) in the disclosure schedule delivered by the
Company to Parent immediately prior to the execution of this
Agreement (the "Company Disclosure Schedule"), the
Company represents and warrants to Parent and Acquirer Sub as
follows:
(a) Qualification, Organization, Subsidiaries, etc. The
Company is duly incorporated and validly existing under the Laws of
Ireland. The Company has all
requisite corporate power and authority required to own or lease
all of its properties or assets and to carry on its business as now
conducted. The Company is duly qualified to do business and is in
good standing in each jurisdiction where such qualification is
necessary, except for those jurisdictions where failure to be so
qualified or in good standing has not had and would not reasonably
be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. Prior to the date of this Agreement, the
Company has made available to Parent true and complete copies of
the Memorandum and Articles of Association of the Company as in
effect as of the date of this Agreement (the "Company
Memorandum and Articles of Association").
(b) Subsidiaries.
(i) Each Subsidiary of the Company is a corporation or other
entity duly incorporated or organized, validly existing and in good
standing (except to the extent such concept is not applicable under
applicable Laws of such Subsidiary's jurisdiction of incorporation
or organization, as applicable) under the Laws of its jurisdiction
of incorporation or organization and has all corporate or other
organizational powers and authority, as applicable, required to
own, lease and operate its properties and assets and to carry on
its business as now conducted, except for those jurisdictions where
failure to be so organized, validly existing and in good standing
or to have such power has not had and would not reasonably be
expected to have, individually or in the aggregate, a Company
Material Adverse Effect. Each such Subsidiary is duly qualified to
do business and is in good standing in each jurisdiction where such
qualification is necessary, except for those jurisdictions where
failure to be so qualified or in good standing has not had and
would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect. The Company has made
available true and correct copies of the Organizational Documents
of the Company's Significant Subsidiaries that, in each case, are
in full force and effect as of the date of this Agreement.
(ii) All of the outstanding Equity Securities of each Subsidiary
of the Company have been validly issued and are fully paid and
nonassessable (except to the extent such concepts are not
applicable under applicable Laws of such Subsidiary's jurisdiction
of incorporation or organization, as applicable) and are owned by
the Company or one of its wholly- owned Subsidiaries, directly or
indirectly, free and clear of any Lien (other than Permitted Liens
and any restrictions imposed by applicable Laws) and free of
preemptive rights, rights of first refusal, subscription rights or
similar rights of any Person and transfer restrictions (other than
Permitted Liens and transfer restrictions under applicable Laws or
under the Organizational Documents of such Subsidiary). Except for
the Equity Securities of its Subsidiaries, the Company does not
own, directly or indirectly, any capital stock or other Equity
Securities of any Person.
(c) Capitalization.
(i) The authorized capital of the Company consists of
600,000,000 Company Shares, and 40,000 Company Deferred Shares. As
of December 9, 2022 (the
"Company Capitalization Date"), there were
outstanding (A) 226,962,593 Company Shares, (B) 40,000 Company
Deferred Shares, (C) Company Options to purchase an aggregate of
4,997,294 Company Shares, (D) Company RSU Awards (other than the
Company PSU Awards) providing for the issuance of up to an
aggregate of 3,581,805 Company Shares and (E) Company PSU Awards
providing for the issuance of up to an aggregate of 1,909,313
Company Shares, determined assuming the maximum number of shares to
be issued under the Company PSU Awards. As of December 9, 2022, (X) 21,101,438 additional
Company Shares were reserved for issuance pursuant to the Company
Share Plans (excluding the Company ESPP), and (Y) 2,046,575
additional Company Shares were reserved for issuance pursuant to
the Company ESPP. Except as set out in this Section 6.1(c) and for
changes since the Company Capitalization Date resulting from (x)
the exercise or vesting and settlement of the Company Equity Awards
outstanding on such date (in accordance with their existing terms
in effect as of the date of this Agreement) or issued on or after
such date to the extent permitted by Section 5.1 (as qualified by
or permitted under the Company Disclosure Schedule) or (y) the
issuance of Equity Securities of the Company on or after the date
of this Agreement to the extent permitted by Section 5.1 (as
qualified by or permitted under the Company Disclosure Schedule)
and Section 7.5 (with respect to an offering period in existence
under the Company ESPP), there are no issued, reserved for issuance
or outstanding Equity Securities of the Company.
(ii) All outstanding Company Shares have been, and all Company
Shares that may be issued pursuant to any Company Share Plan, any
employee stock option or other compensation plan or arrangement
will be, when issued in accordance with the respective terms
thereof, duly authorized and validly issued, fully paid and
nonassessable and free of preemptive rights and Liens other than
Permitted Liens. No Subsidiary of the Company owns any Equity
Securities of the Company. There are no outstanding bonds,
debentures, notes or other Indebtedness of the Company having the
right to vote (or convertible into, or exchangeable for, securities
having the right to vote) on any matters on which shareholders of
the Company have the right to vote. As of the date of this
Agreement, other than the Company Shares underlying the Company RSU
Awards or Company PSU Awards, there are no outstanding obligations
of the Company or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any Equity Securities of the Company or its
Subsidiaries. Neither the Company nor any of its Subsidiaries is a
party to any agreement with respect to the voting of any Equity
Securities of the Company.
(iii) Each Company Option (A) was granted in compliance with all
applicable Laws and all of the terms and conditions of the Company
Share Plan pursuant to which it was issued, (B) has an exercise
price per Company Share equal to or greater than the fair market
value of a Company Share on the date of such grant, (C) has a grant
date identical to the date on which the Company Board or the
compensation committee thereof actually awarded such Company Option
and (D) does not trigger any liability for the holder thereof under
Section 409A of the Code.
(d) SEC Filings; Financial Statements; Internal Controls and
Procedures.
(i) Since January 1, 2021, the
Company has timely filed or furnished all reports, schedules,
forms, statements and other documents (including exhibits and all
other information incorporated therein) required to be filed or
furnished by the Company with the SEC (the "Company SEC
Documents"). As of their respective dates, the Company SEC
Documents complied as to form, in all material respects with the
requirements of the Securities Act, the Exchange Act or the
Sarbanes-Oxley Act, as the case may be, the rules and regulations
of the SEC promulgated thereunder applicable to such Company SEC
Documents and the rules and regulations of Nasdaq. Except to the
extent that information contained in any Company SEC Document has
been revised, amended, modified or superseded (prior to the date of
this Agreement) by a later filed Company SEC Document, none of the
Company SEC Documents when filed or furnished contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; provided, that, any such
Company SEC Document that is a registration statement filed
pursuant to the Securities Act did not contain any untrue statement
of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading on the date of the effectiveness of such Company SEC
Document that is a registration statement. No member of the Company
Group other than the Company is subject to the reporting
requirements of Section 13(a) or Section 15(d) of the Exchange
Act.
(ii) The consolidated financial statements of the Company
(including any related notes and schedules) contained or
incorporated by reference in the Company SEC Documents: (A)
complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of
the SEC applicable thereto; (B) were prepared in accordance with
GAAP applied on a consistent basis throughout the periods covered
(except as may be indicated in the notes to such financial
statements or as permitted by Regulation S-X, or, in the case of
unaudited financial statements, as permitted by Form 10-Q, Form 8-K
or any successor form under the Exchange Act); and (C) fairly
present, in all material respects, the consolidated financial
position of the Company and its consolidated Subsidiaries as of the
respective dates thereof and the results of operations,
shareholders' equity, consolidated income and changes in
consolidated financial condition or cash flows of the Company and
its consolidated Subsidiaries for the periods covered thereby
(subject, in the case of the unaudited financial statements, to
normal and recurring year-end adjustments that are not,
individually or in the aggregate, material). No financial
statements of any Person other than the Subsidiaries of the Company
are required by GAAP to be included in the consolidated financial
statements of the Company.
(iii) The Company maintains, and at all times since January 1, 2021, has maintained, a system of
internal controls over financial reporting (as required and defined
in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is
designed to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP, and includes those
policies and procedures that: (A) pertain to the maintenance of
records that in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of the Company; (B)
provide reasonable assurance that transactions are recorded as
necessary to permit preparation of financial statements in
conformity with GAAP and that receipts and expenditures are being
made only in accordance with authorizations of management and
directors of the Company; and (C) provide reasonable assurance
regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the assets of the Company Group
that could have a material effect on its financial statements.
Except as set out in the Company SEC Documents filed prior to the
date of this Agreement, since January 1,
2021, neither the Company nor, to the knowledge of the
Company, the Company's independent registered accountant has
identified or been made aware of: (x) any significant deficiency or
material weakness in the design or operation of internal controls
over financial reporting utilized by the Company; (y) any illegal
act or fraud, whether or not material, that involves the management
or other employees of the Company Group; or (z) any claim or
allegation regarding any of the foregoing.
(iv) The Company and its Subsidiaries maintain disclosure
controls and procedures required by Rule 13a-15 or 15d-15 under the
Exchange Act that are designed to provide reasonable assurance that
all information required to be disclosed in the Company's reports
that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods
specified in the rules and forms of the SEC and that all such
information is accumulated and communicated to the Company's
management as appropriate to allow timely decisions regarding
required disclosure and to enable each of the principal executive
officer of the Company and the principal financial officer of the
Company to make the certifications required under the Exchange Act
and the Sarbanes-Oxley Act with respect to such reports. No
executive officer of the Company has failed in any material respect
to make the certifications required of them under Rules 13a-14 and
15d-14 under the Exchange Act and Sections 302 and 906 of the
Sarbanes-Oxley Act and any related rules and regulations
promulgated by the SEC or Nasdaq with respect to any Company SEC
Document, and the statements contained in any such certifications
are true and complete in all material respects as of the date on
which they were made. No evidence of a material violation of
securities Laws, breach of fiduciary duty or similar violation by
the Company or any of its Representatives has been reported to the
Company's chief legal officer, audit committee (or other committee
of the Company Board designated for this purpose) or the Company
Board pursuant to the rules adopted pursuant to Section 307 of the
Sarbanes-Oxley Act.
(v) The Company is not a party to nor has any obligation or
other commitment to become a party to any securitization
transaction, off-balance sheet partnership or any similar Contract
(including any Contract relating to any transaction or relationship
between or among the Company, on the one hand, and any
unconsolidated Affiliate, including any structured finance, special
purpose or limited purpose entity, on the other hand, or any
"off-balance sheet arrangements" (as defined in Item 303(a) of
Regulation S-K under the Exchange Act)) where the result, purpose
or intended effect of such Contract is to avoid disclosure of any
material transaction involving, or material liabilities of, the
Company Group in the Company's published financial statements or
other Company SEC Documents.
(vi) As of the date of this Agreement, there are no outstanding
or unresolved comments in comment letters received from the SEC
with respect to the Company SEC Documents. To the knowledge of the
Company, none of the Company SEC Documents is the subject of
ongoing SEC review and there are no inquiries or investigations by
the SEC or any internal investigations pending or threatened, in
each case regarding any accounting practices of the Company. The
Company has made available to Parent all material correspondence
with the SEC since January 1, 2021
through the date of this Agreement.
(vii) The Company is in compliance in all material respects with
all current listing and corporate governance requirements of
Nasdaq.
(e) Absence of Changes.
(i) Since December 31, 2021
through the date of this Agreement, there has not occurred any
event, change, effect, development or occurrence, individually or
in the aggregate, that has had or would be reasonably expected to
have, a Company Material Adverse Effect.
(ii) Since the date of the Balance Sheet through the date of
this Agreement, (A) the Company Group has operated in all material
respects in the ordinary course of business (except for
discussions, negotiations and transactions related to this
Agreement or any similar potential strategic transactions) and (B)
no Company Group member has taken, or agreed, committed, arranged,
authorized or entered into any written understanding to take any of
the following actions: (1) (other than transactions solely among
the Company and its wholly owned Subsidiaries) effected any
recapitalization, reclassification, distribution, equity split or
like change in its capitalization, amended any term or altered any
rights of any of its outstanding Equity Securities, or redeemed,
repurchased, canceled or otherwise acquired its Equity Securities
or any Equity Securities of the Company; (2) subjected any material
portion of its properties or assets to any material Liens, except
for Permitted Liens; (3) sold or otherwise dispose of, divested or
spun- off, assigned or transferred any material assets or
properties, except in the ordinary course of business (including
entering into Standard Contracts and non-exclusive license
agreements, and the sale of obsolete assets, in each case, in the
ordinary course of business); (4) except for intercompany loans and
capital contributions and sales commission advances made in the
ordinary course of business, made or authorized any capital
investment in, or any material loan to, or guarantee any
Indebtedness of any Person other than any Company Group member,
except in the ordinary course of business or pursuant to any
existing agreement or budget; (5) amended its Organizational
Documents; (6) declared, set aside or paid any dividend or made any
other distributions (whether in cash, stock, property or any
combination thereof) in respect of any Equity Securities, other
than dividends or distributions by a Subsidiary of the Company to
the Company or a wholly owned Subsidiary of the Company; or (7)
made any material change in any method of financial accounting or
financial accounting principles or practices, except for any such
change required by reason of (or, in the reasonable good-faith
judgment of the Company, advisable under) a change in GAAP or
applicable Laws.
(f) Title to Assets. The Company Group has good and valid
title to, or a valid leasehold interest in, all material tangible
properties and assets owned or leased, or purported to be owned or
leased, by them, including all material tangible assets and
properties reflected on the Company's unaudited balance sheet in
the most recent Quarterly Report on Form 10-Q (the "Balance
Sheet") filed by the Company with the SEC (but excluding
Intellectual Property which is covered by Section 6.1(h)), except
for assets sold or otherwise disposed of in the ordinary course of
business since the date of such Balance Sheet, and except where
such failure has not had and would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse
Effect. Such tangible assets and properties are, in the aggregate,
sufficient to carry on the businesses of the Company Group, except
as would not, individually or in the aggregate, reasonably be
expected to result in a Company Material Adverse Effect.
(g) Real Property. Except as has not had and would
not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect, (i) the Company Group
has good, valid and marketable fee simple title to, or valid
leasehold interests in, as the case may be, each parcel of real
property owned (the "Owned Real Property") or leased
(the "Leased Real Property") by the applicable member
of the Company Group, free and clear of all Liens, except for
Permitted Liens, (ii) each lease, sublease or license (each, a
"Lease") under which the applicable member of the
Company Group leases, subleases or licenses any real property is,
subject to the Equitable Exceptions, a valid and binding obligation
of the applicable member of the Company Group (as the case may be)
and, to the knowledge of the Company, each of the other parties
thereto, and is in full force and effect and enforceable in
accordance with its terms against the applicable member of the
Company Group (as the case may be) and, to the knowledge of the
Company, each of the other parties thereto (except for such Leases
that are terminated after the date of this Agreement in accordance
with their respective terms, other than as a result of a default or
breach by a member of the Company Group of any of the provisions
thereof), (iii) no member of the Company Group, nor, to the
knowledge of the Company, any of the other parties thereto has
violated or committed or failed to perform any act which (with or
without notice, lapse of time or both) would constitute a default
under any provision of any Lease, and (iv) no member of the Company
Group has received written notice that it has violated or defaulted
under any Lease. The Owned Real Property and the Leased Real
Property has been maintained in accordance with normal industry
practice and is suitable for the purposes for which it is currently
used. No member of the Company Group has received any written
notice of any pending or threatened condemnation of any Owned Real
Property or material Leased Real Property by any Governmental
Entity, except as has not and would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse
Effect.
(h) Intellectual Property.
(i) Section 6.1(h)(i) of the Company Disclosure Schedule
identifies (A) the name of the applicant/registrant (or the
Internet domain name registrar, as applicable), (B) the
jurisdiction of application/registration, (C) the application,
patent or registration number and (D) any other co-owners, for each
material item of Registered IP included in the Owned Intellectual
Property. All material Registered IP included in the Owned
Intellectual Property or included in material Licensed Intellectual
Property exclusively licensed to the Company Group (collectively,
the ("Exclusive Company IP") is subsisting, and, with
respect to such material Registered IP that is issued and granted,
to the Company's knowledge, is valid and enforceable. Other than as
identified in the Company Disclosure Schedule, no interference,
reissue, reexamination or other proceeding of any nature (other
than patent or trademark prosecution activities being conducted
before a Governmental Entity in the ordinary course of business) is
pending or, to the knowledge of the Company, threatened, in which
the scope, validity, enforceability, inventorship or ownership of
any material Registered IP included in the Owned Intellectual
Property or, to the knowledge of the Company, in any other
Exclusive Company IP, is contested or challenged. Each member of
the Company Group has complied in all material respects with its
duty of candor and disclosure to the United States Patent and
Trademark Office and any relevant foreign patent office with
respect to all patent and trademark applications included in the
Owned Intellectual Property or, to the extent and for the duration
any member of the Company Group controls the prosecution and
maintenance thereof, any other Exclusive Company IP, in each case
filed by or on behalf of the Company Group and have made no
material misrepresentation in such applications.
(ii) Except as would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect, the Company or any of its Subsidiaries solely owns all
right, title and interest in and to all Owned Intellectual
Property, free and clear of all Liens other than Permitted Liens,
and to the knowledge of the Company, has the right, pursuant to
valid agreements to use all other material Company Intellectual
Property used by the Company Group in their businesses as currently
conducted. The consummation of the Transactions will not result in
the grant of any Lien with respect to any Intellectual Property
owned or controlled by the Parent or any of its Affiliates (other
than the Company Group), except as would not be material to the
business of Parent or any of its Affiliates (other than the Company
Group). Each Company Employee or independent contractor involved in
the creation or development of any material Intellectual Property
intended by the Company to be owned by any member of the Company
Group has irrevocably assigned such Company Employee's or
independent contractor's rights in such Intellectual Property to
the Company or its applicable Subsidiary, except in any instance
where a failure to do so would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect.
(iii) No funding, facilities or personnel of any Governmental
Entity or any university, college, research institute or other
educational institution are being used to create any material Owned
Intellectual Property or, to the knowledge of the Company, any
other material Company Intellectual Property, in each case, except
for any such funding, facilities or personnel that would not result
in such Governmental Entity or institution obtaining ownership
rights in or other rights to use or exploit any Company
Intellectual Property.
(iv) Section 6.1(h)(iv) of the Company Disclosure Schedule sets
forth each license agreement pursuant to which a member of the
Company Group (A) is granted a license under, covenant not to sue
under or option to any of the foregoing under any material
Intellectual Property that is incorporated into or distributed or
used with any Company Product or that is otherwise material to the
business of the Company Group, taken as a whole (each an
"In-bound License") or (B) grants to any Third Party
a license under, covenant not to sue under or option to any of the
foregoing under any material Company Intellectual Property (each an
"Out-bound License"), provided that, In-bound
Licenses shall not include any material transfer agreements,
sponsored research agreements, clinical trial agreements,
nondisclosure agreements, services agreements, commercially
available software-as-a-service offerings, off-the-shelf software
licenses, non-material trademark co-existence agreements or
generally available license agreements, in each case, entered into
in the ordinary course of business, and Out-bound Licenses shall
not include any material transfer agreements, sponsored research
agreements, clinical trial agreements, nondisclosure agreements,
services agreements, research agreements, distribution agreements,
manufacturing agreements, non-material trademark co-existence
agreements or non-exclusive out-bound licenses, in each case,
entered into in the ordinary course of business (collectively,
"Standard Contracts").
(v) The operation of the business of the Company Group as
currently conducted does not infringe, misappropriate or violate,
and has not infringed, misappropriated or violated since
January 1, 2021, any Intellectual
Property owned by any other Person; and, to the knowledge of the
Company, no Person is infringing, misappropriating or otherwise
violating, and has not infringed, misappropriated or violated since
January 1, 2021, any Owned
Intellectual Property or Licensed Intellectual Property exclusively
licensed to any member of the Company Group. Since January 1, 2021, there has been no Legal
Proceeding (A) pending (or, to the knowledge of the Company,
threatened) against any of the members of the Company Group
alleging that the operation of the business of the Company Group as
currently conducted infringes or constitutes the misappropriation
or other violation of any Intellectual Property of another Person,
or (B) pending (or, to the knowledge of the Company, threatened) by
any member of the Company Group that another Person has infringed,
misappropriated or otherwise violated any of the Owned Intellectual
Property or Licensed Intellectual Property exclusively licensed to
any member of the Company Group.
(vi) The Company has taken commercially reasonable security,
organizational, physical, administrative and technical measures,
including measures designed to protect against unauthorized
disclosure and designed to protect the secrecy, confidentiality,
and value of its trade secrets and other material confidential
technical information, and no such trade secret or other material
confidential technical information has been disclosed by or on
behalf of any member of the Company Group to, or, to the knowledge
of the Company, has been discovered by, any Person, other than
pursuant to valid non-disclosure obligations restricting the
disclosure and use thereof, which obligations, to the knowledge of
the Company, have not been breached.
(vii) As of the date of this Agreement, none of the Owned
Intellectual Property or, to the knowledge of the Company, any
other Exclusive Company IP, is subject to any outstanding Order
that adversely and materially restricts the use, transfer,
validity, enforceability, ownership, registration or licensing by
any member of the Company Group of any such Exclusive Company
IP.
(i) Data Protection.
(i) Except as would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect, since January 1, 2021, the
members of the Company Group (A) to the knowledge of the Company,
are, and have been, in compliance with all Data Security
Requirements and (B) have not received, or otherwise been subject
to, any written notices, complaints, notices, audits, proceedings,
investigations or claims conducted or asserted by any other Person
(including any Governmental Entity) regarding any unauthorized or
unlawful Processing of Personal Information or other violation of
any Data Security Requirements.
(ii) Except as would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect, since January 1, 2021, the
Company Group have maintained and complied with commercially
reasonable administrative, technical and physical safeguards that
are designed to (A) prevent Security Incidents and (B) protect the
confidentiality, integrity and availability of all Personal
Information and Company IT Assets currently used by the Company
Group. Except as would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect, and to the knowledge of the Company, since January 1, 2021, through the date of this
Agreement, none of the members of the Company Group has experienced
a Security Incident.
(iii) The Company IT Assets (A) operate and perform in all
material respects in accordance with their documentation and
functional specifications and otherwise as required by the Company
Group in connection with its businesses, (B) have not malfunctioned
or failed since January 1, 2021 in a
manner that has had a material impact on the businesses of the
Company Group, and (C) to the knowledge of the Company, are free
from material bugs, material malicious codes or other material
defects.
(j) Contracts. Section 6.1(j) of the Company Disclosure
Schedule identifies each Company Contract (other than any Company
Contract that is an Employee Plan identified in Section 6.1(q) of
the Company Disclosure Schedule) that constitutes a Material
Contract as of the date of this Agreement. For purposes of this
Agreement, each of the following Company Contracts other than a
Standard Contract shall be deemed to constitute a "Material
Contract":
(i) any Company Contract that requires by its terms the payment
or delivery of cash or other consideration by or to a member of the
Company Group in an amount having an expected value in excess of
$25,000,000 in the fiscal year ending
December 31, 2022;
(ii) any Company Contract (x) having an expected value in excess
of $20,000,000 in the fiscal year
ending December 31, 2022 (A)
containing any exclusivity obligations or otherwise limiting the
freedom or right of any member of the Company Group (or upon the
Completion by virtue of the consummation of the Acquisition, Parent
and its Subsidiaries) in any material respect, to engage in any
line of business, to make use of any material Company Intellectual
Property (other than the scope of the rights granted by the terms
of any In-bound or any Out-bound License to use such material
Company Intellectual Property) or to compete with any other Person
in any location or line of business, or (B) containing any "most
favored nations" terms and conditions (including with respect to
pricing) granted by a member of the Company Group or (y) or
containing any exclusivity obligations or otherwise limiting the
freedom or right of Parent or any of its Subsidiaries (other than
the members of the Company Group), in any material respect, to
engage in any line of business, to make use of any Intellectual
Property or to compete with any other Person in any location or
line of business, in each case, from and after the Completion;
(iii) any Company Contract relating to Indebtedness in excess of
$30,000,000 (whether incurred,
assumed, guaranteed or secured by any asset) of any member of the
Company Group;
(iv) any Company Contract that provides for the creation of any
Lien, other than a Permitted Lien, with respect to any tangible
asset and Owned Intellectual Property of any Company Group member
that is material to the conduct of the business of the Company
Group as currently conducted, taken as a whole;
(v) any Company Contract constituting a joint venture,
partnership, or limited liability company or the sharing of profits
and losses;
(vi) any Company Contract that prohibits the payment of
dividends or distributions in respect of the capital stock of the
Company or any material Subsidiary, the pledging of the capital
stock or other Equity Securities of the Company or any material
Subsidiary or prohibits the issuance of any guaranty or the
incurrence of any Indebtedness for borrowed money by the Company or
any material Subsidiary;
(vii) any other Company Contract that is currently in effect and
has been filed (or is required to be filed) by the Company as an
exhibit pursuant to Item 601(b)(10) of Regulation S-K under the
Securities Act or that would be required to be disclosed under Item
404 of Regulation S-K under the Securities Act;
(viii) any Company Contract with any Affiliate, director,
executive officer, holder of 5% or more of the Company Shares or,
to the knowledge of the Company, any of their Affiliates (other
than the Company) or immediate family members that would be
required to be disclosed under Item 404 of Regulation S-K that has
not been otherwise disclosed in the Company SEC Documents filed
prior to the date of this Agreement or with annual payments in the
fiscal year ending December 31, 2021
in excess of $1,000,000, other than
offer letters or employment agreements that can be terminated at
will without severance obligations (or upon only the minimum
severance and notice requirements required by applicable Laws) and
Company Contracts with respect to Company Equity Awards;
(ix) any Company Contract having an expected payment obligation
in excess of $10,000,000 in the
fiscal year ending December 31, 2023,
for the lease or sublease of any material real property;
(x) any Company Contract that provides for the acquisition or
disposition of any business, or a material amount of stock or
assets of any Person, in each case, for consideration in excess of
$50,000,000 (whether by merger, sale
of stock, sale of assets or otherwise) with material obligations
remaining to be performed or material liabilities continuing after
the date of this Agreement (other than indemnification obligations
under which there are no pending claims or other provisions that
customarily survive such performance);
(xi) any Company Contract with any Governmental Entity under
which payments in excess of $20,000,000 were received by any member of the
Company Group in the fiscal year ending December 31, 2021;
(xii) any In-bound License or Out-bound License;
(xiii) any hedging, swap, derivative or similar Company
Contract; and
(xiv) any Company Contract with a sole-source supplier related
to Tepezza, Krystexxa or Uplizna such that the inability to
maintain supply from such supplier would materially impact product
availability.
As of the date of this Agreement, the Company has made available
to Parent or Parent's Representatives a true and correct copy of
each Material Contract. Neither the applicable member of the
Company Group nor, to the knowledge of the Company, the other party
thereto is in material breach of or material default under any
Material Contract and, neither the applicable member of the Company
Group, nor, to the knowledge of the Company, the other party
thereto has taken or failed to take any action that with or without
notice, lapse of time or both would constitute a material breach of
or material default under any Material Contract. To the knowledge
of the Company, each Material Contract is enforceable by the
applicable member of the Company Group in accordance with its
terms, subject to the Equitable Exceptions. Since January 1, 2022 through the date of this
Agreement, none of the members of the Company Group has received
any written notice (x) regarding any violation or breach or default
under any Material Contract that has not since been cured or (y)
from any Person that such Person intends to terminate, or not
renew, any Material Contract, in each case, except for such
violations or breaches that would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse
Effect. Since January 1, 2021, no
member of the Company Group has waived in writing any rights under
any Material Contract, except for waivers that would not reasonably
be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. For the purposes of this final paragraph
of this Section 6.1(j) (other than the first sentence), Material
Contracts shall include any Company Contract in effect as of the
date of this Agreement that requires by its terms the payment or
delivery of cash or other consideration by or to any member of the
Company Group in an amount having an expected value in excess of
$25,000,000 in any single fiscal year
after 2022.
(k) Liabilities. The Company Group does not have any
liabilities of the type required to be disclosed in the liabilities
column of a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with GAAP, except for: (i)
liabilities reflected or reserved in the audited and unaudited
financial statements included in the Company SEC Documents; (ii)
liabilities or obligations incurred pursuant to the terms of this
Agreement; (iii) liabilities for performance of obligations under
Contracts binding upon the applicable member of the Company Group
(other than resulting from any breach or acceleration thereof) made
available to Parent or Parent's Representatives prior to the date
of this Agreement or entered into in compliance with Section 5.1 or
in the ordinary course of business, including Standard Contracts;
(iv) liabilities incurred since the date of the Balance Sheet in
the ordinary course of business or in connection with the
Transactions (none of which would reasonably be expected to be
material to the conduct of the business of the Company Group as
currently conducted, taken as a whole); and (v) liabilities that
would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
(l) Compliance with Law. Each member of the Company Group
is, and since January 1, 2021, has
been, in compliance with all applicable Laws and all applicable
Orders, except where the failure to be in compliance would not
reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect and, since January 1, 2021, no member of the Company Group
has been given written notice of, or been charged with, any
unresolved violation of, any Law or Order, except, in each case,
for any such violation that would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse
Effect.
(m) Regulatory Matters.
(i) Since January 1, 2021, the
Company Group has filed with the applicable regulatory authorities
(including the FDA or any other Governmental Entity performing
functions similar to those performed by the FDA) all required
material filings, declarations, listings, registrations, reports or
submissions, including but not limited to adverse event reports and
investigational new drug safety reports. All such filings,
declarations, listings, registrations, reports or submissions were
in material compliance with applicable Laws when filed, and no
deficiencies that have been asserted by any applicable Governmental
Entity with respect to any such filings, declarations, listing,
registrations, reports or submissions remain outstanding.
(ii) Except as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect,
all nonclinical and clinical investigations sponsored by or on
behalf of the Company Group are, to the knowledge of the Company,
being or have been conducted in material compliance with applicable
Laws and guidance, including (A) Good Clinical Practices
requirements, (B) applicable International Council for
Harmonisation of Technical Requirements for Pharmaceuticals for
Human Use guidelines, (C) approved clinical protocols and informed
consents and (D) applicable Laws restricting the use and disclosure
of individually identifiable health information. As of the date of
this Agreement, neither the FDA nor any other foreign, federal,
state or local governmental or regulatory authority performing
functions similar to those performed by the FDA has sent any
written notices or other correspondence to any member of the
Company Group with respect to any ongoing clinical or nonclinical
studies or tests requiring the termination, suspension or material
modification of such studies or tests, which modification,
individually or in the aggregate, would reasonably be expected to
have a Company Material Adverse Effect.
(iii) To the Company's knowledge, since January 1, 2021, neither the members of the
Company Group nor any Representative acting on any member of the
Company Group's behalf has (A) made an untrue statement of a
material fact or fraudulent statement to the FDA or any
Governmental Entity having applicable jurisdiction over the Company
Group under applicable Healthcare Laws, (B) failed to disclose a
material fact required to be disclosed to the FDA or (C) committed
any other act, made any statement or failed to make any statement,
that (in any such case) establishes a reasonable basis for the FDA
to invoke its Fraud, Untrue Statements of Material Facts, Bribery,
and Illegal Gratuities Final Policy or for any Governmental Entity
having applicable jurisdiction over the Company Group under
applicable Healthcare Laws to invoke an equivalent policy. As of
the date of this Agreement, none of any member of the Company Group
nor, to the Company's knowledge, any entity or other Representative
acting on any member of the Company Group's behalf is the subject
of any pending or, to the Company's knowledge, threatened
investigation in writing by the FDA pursuant to its Fraud, Untrue
Statements of Material Facts, Bribery, and Illegal Gratuities Final
Policy or by any Governmental Entity having applicable jurisdiction
over the Company Group under applicable Healthcare Laws on the
basis of an equivalent Policy.
(iv) Neither the Company nor, to the knowledge of the Company,
any executive officers, employees, agents or clinical investigators
of the Company Group or any entity or individual acting on the
Company's behalf has been (A) debarred under 21 U.S.C. § 335a or
any similar Law, (B) excluded from participation in federal health
care programs under 42 U.S.C. §§ 1320a-7, 1320a-7a or any similar
Law, (C) disqualified by any Governmental Entity, (D) suspended or
otherwise determined to be or identified as ineligible to
participate in any health care contracting program of any
Governmental Entity or (E) convicted of, charged with, investigated
for or engaged in any conduct that would reasonably be expected to
result in such debarment, exclusion, disqualification, suspension,
or ineligibility. No debarment, exclusion or disqualification
proceedings or investigations are pending or, to the Company's
knowledge, threatened against the Company or any officer, director,
consultant, employee, manager or agent acting for or on behalf of
the Company Group. No Legal Proceedings are pending or, to the
Company's knowledge, threatened that would reasonably be expected
to result in criminal liability, debarment, disqualification, or
exclusion by any Governmental Entity.
(v) Except as, individually or in the aggregate, would not
reasonably be expected to have a Company Material Adverse Effect,
the Company Group is in compliance and since January 1, 2021, has been in compliance with all
Healthcare Laws to the extent applicable to the operation of its
business as currently conducted. The Company is not subject to any
enforcement, regulatory or Legal Proceeding against or affecting
the Company relating to or arising under any Healthcare Law, and no
such enforcement, regulatory or Legal Proceeding has been
threatened, including by the issuance of a warning letter, untitled
letter, Form 483 or similar notice of potential violations of
Healthcare Laws. To the extent required by applicable Laws, all
manufacturing operations conducted for the benefit of any member of
the Company Group with respect to any product or product candidate
being used in human clinical trials have been conducted in
accordance with GMP Regulations, except where the failure to so
comply would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect.
(n) Certain Business Practices. To the Company's
knowledge, neither the Company, nor any other member of the Company
Group, nor any of its or their respective employees,
representatives or agents (in each case, acting in the capacity of
an employee or representative of any member of the Company Group)
has (i) used any funds (whether of any member of the Company Group
or otherwise) for unlawful contributions, gifts, entertainment or
other unlawful expenses relating to political activity, (ii) made
any unlawful payment to foreign or domestic Government Officials or
employees or to foreign or domestic political parties or campaigns
or (iii) violated any provision of any applicable Anti-Corruption
Laws or any rules or regulations promulgated thereunder, any
applicable anti-money laundering laws and any rules or regulations
promulgated thereunder or any applicable Law of similar effect.
(o) Regulatory Permits. The Company Group holds all
Regulatory Permits necessary to enable the Company Group to conduct
its business in the manner in which its business is currently being
conducted, except where failure to hold such Regulatory Permits
would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect. The Regulatory
Permits held by the Company Group are, in all material respects,
valid and in full force and effect. The Company Group is in
compliance with the terms and requirements of such Regulatory
Permits, except where failure to be in compliance would not
reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect.
(p) Tax Matters.
(i) Except as would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect, (A) each of the Tax Returns required to be filed by the
Company Group with any Governmental Entity has been filed on or
before the applicable due date (taking into account any extensions
of such due date), and all such Tax Returns are accurate and
complete, (B) all Taxes required to be paid have been paid, except
with respect to matters being contested in good faith and in
accordance with applicable Laws or for which adequate reserves have
been established in accordance with GAAP on the financial
statements of the relevant member of the Company Group, (C) the
Company Group has made adequate provision for all unpaid Taxes not
yet due, (D) there are no Liens for Taxes upon any property or
assets of any member of the Company Group, except for Permitted
Liens, (E) during the last three years, no claim has been made in
writing by a Tax Authority in a jurisdiction where a member of the
Company Group does not file Tax Returns that such Person is or may
be subject to taxation in that jurisdiction, and (F) neither the
execution of this Agreement nor the Scheme will result in the loss,
withdrawal or restriction of any applicable Tax holiday or reduced
Tax rate granted by a Tax Authority to any member of the Company
Group that is not generally available to Persons without specific
application therefor.
(ii) Except as would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect, (A) no deficiency for any Tax has been asserted or assessed
by a Tax Authority in writing against any member of the Company
Group which deficiency has not been paid, settled or withdrawn or
is not being contested in good faith and in accordance with
applicable Laws, (B) there are no pending or ongoing, audits,
examinations, investigations or other proceedings by any Tax
Authority with respect to Taxes of or with respect to any member of
the Company Group and (C) no member of the Company Group has
received any form of written notice from any Tax Authority
communicating an intent to initiate any such audit, examination,
investigation or other proceeding.
(iii) None of the members of the Company Group (A) is a party to
or is bound by any material Tax sharing, allocation or
indemnification agreement or arrangement that would have a
continuing effect after the Completion Date (other than such
agreements or arrangements (x) exclusively between or among the
members of the Company Group or (y) with third parties made in the
ordinary course of business, the principal purpose of which is not
Tax) or (B) has any material liability for the Taxes of another
Person (other than members of the Company Group) under Treasury
Regulations Section 1.1502-6 (or any similar provision of state,
local or foreign Law), as a transferee or successor, or otherwise
by operation of Law.
(iv) No member of the Company Group has been either a
"distributing corporation" or a "controlled corporation" in a
distribution of stock intended to qualify for Tax- free treatment
under Section 355 of the Code in the last two years.
(v) To the knowledge of the Company, no member of the Company
Group has entered into any "listed transaction" within the meaning
of Treasury Regulations Section 1.6011-4(b)(2) or any similar
transaction requiring disclosure in accordance with a corresponding
provision of state, local or foreign Law.
(vi) The statements in Section 6.1(p)(vi) of the Company
Disclosure Schedule, to the extent materially relevant to whether
any member of the Company Group first became a surrogate foreign
corporation after November 9, 2017,
are true in all material respects, and to the knowledge of the
Company no member of the Company Group first became a surrogate
foreign corporation after November 9,
2017.
(vii) With respect to any taxable period or year, neither the
Company nor any material member of the Company Group is, or has
been treated as, a U.S. corporation under Section 7874(b) of the
Code, and to the knowledge of the Company no other member of the
Company Group is or has been treated as a U.S. corporation under
Section 7874(b) of the Code.
(viii) Notwithstanding anything herein to the contrary, this
Section 6.1(p) contains the sole representations concerning Taxes
of the Company Group (other than representations concerning Taxes
of the Company Group under Section 6.1(q)).
(q) Employee Matters; Benefit Plans.
(i) Except as required by applicable Laws, the employment of
each of the Company's employees located in the United States is
terminable by the Company at will.
(ii) None of the members of the Company Group is a party to, has
no duty to bargain for, nor is currently negotiating in connection
with entering into, any collective bargaining agreement or other
Contract with a labor organization or works council representing
any of its employees and there are no labor organizations or works
councils representing, purporting to represent or, to the knowledge
of the Company, seeking to represent any employees of the Company
Group. Since January 1, 2021, through
the date of this Agreement, there has not been any strike,
slowdown, work stoppage, lockout, picketing or labor dispute, or
any threat thereof affecting the Company Group or any of its
employees. Since January 1, 2021, and
except for those matters that would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse
Effect, the Company Group has complied with all applicable Laws
related to employment and employment practices, including any
pertaining to payment wages and hours of work, leaves of absence,
plant closing notifications, employment statutes or regulations,
workplace health and safety, retaliation, or discrimination
matters, including charges of unfair labor practices or harassment
complaints, and, as of the date of this Agreement, there is no
material Legal Proceeding pending or, to the knowledge of the
Company, threatened in writing relating to such applicable
Laws.
(iii) To the knowledge of the Company, in the last five years,
(A) no allegations of sexual harassment, discrimination or sexual
misconduct have been made against any member of the Company Board
or any officer of the Company Group subject to the reporting
requirements of Section 16(a) of the Exchange Act, (B) no member of
the Company Group has entered into any settlement agreement related
to allegations of sexual harassment, discrimination or sexual
misconduct by any member of the Company Board or any officer of the
Company Group subject to the reporting requirements of Section
16(a) of the Exchange Act and (C) there have been no, and there are
no proceedings currently pending or, to the knowledge of the
Company, threatened, related to any allegations of sexual
harassment, discrimination or sexual misconduct by any member of
the Company Board or any officer of the Company Group subject to
the reporting requirements of Section 16(a) of the Exchange
Act.
(iv) Section 6.1(q)(iv) of the Company Disclosure Schedule sets
forth a true and complete list of the material Employee Agreements
as of the date of this Agreement (A) the terms of which obligate
the Company or any member of the Company Group to provide any
severance or termination benefits to any employee, other than as
may be required by applicable Laws; or (B) pursuant to which the
Company or any member of the Company Group is obligated to provide
any change-in-control, retention, or similar payment or benefits to
any employee.
(v) Section 6.1(q)(v) of the Company Disclosure Schedule sets
forth a true and complete list of the material Employee Plans.
(vi) The Company has made available to Parent or Parent's
Representatives prior to the execution of this Agreement with
respect to each material Employee Plan accurate and complete copies
of the following (other than equity grant notices, and related
documentation, with respect to employees of the Company Group and
agreements with consultants entered into in the ordinary course of
business), as relevant: (A) all plan documents and all amendments
thereto, and all related trust or other funding documents; (B) any
currently effective determination letter or opinion letter received
from the United States Internal Revenue Service; (C) the most
recent annual actuarial valuation and the most recent Form 5500;
(D) the most recent summary plan descriptions and any material
modifications thereto; (E) the most recent nondiscrimination tests
required to be performed under the Code; and (F) copies of any non-
routine correspondence with any Governmental Entity in the past two
years.
(vii) Neither any member of the Company Group nor any other
Person who would be or, at any relevant time, would have been
considered a single employer with the Company under the Code or
ERISA has during the past six years maintained, contributed to, or
been required to contribute to a plan subject to Title IV of ERISA
or Code Section 412, including any "single employer" defined
benefit plan or any "multiemployer plan" each as defined in Section
4001 of ERISA.
(viii) Neither the Company nor any Subsidiary has any obligation
to provide, and no Employee Plan or other agreement provides any
individual with the right to, a gross up, indemnification,
reimbursement or other payment for any excise or additional taxes,
interest or penalties incurred pursuant to Section 409A or Section
4999 of the Code or due to the failure of any payment to be
deductible under of Section 280G of the Code.
(ix) Each of the Employee Plans that is intended to be qualified
under Section 401(a) of the Code has obtained a favorable
determination letter (or opinion letter, if applicable) as to its
qualified status under the Code. Except as would not reasonably be
expected to, individually or in the aggregate, have a Company
Material Adverse Effect, each of the Employee Plans and Employee
Agreements is now and has been operated in compliance with its
terms and all applicable Laws, including ERISA and the Code.
(x) Each Employee Plan and Employee Agreement that is a
"nonqualified deferred compensation plan" (within the meaning of
Section 409A of the Code) is in documentary compliance with, and
has been operated and administered in all material respects in
compliance with, Section 409A of the Code and the guidance issued
by the Internal Revenue Service provided thereunder.
(xi) Except to the extent required under Section 601 et
seq. of ERISA or 4980B of the
Code (or any other similar state or local Law), neither any member
of the Company Group nor any Employee Plan or Employee Agreement
has any obligation to provide post- employment welfare benefits to
or make any payment to, or with respect to, any present or former
employee, officer or director of any member of the Company Group
pursuant to any retiree medical benefit plan or other retiree
welfare plan.
(xii) The execution and delivery of this Agreement, shareholder
or other approval of this Agreement, or the consummation of the
Transactions (including in combination with other events or
circumstances) could not, (A) accelerate the time of payment or
vesting, or materially increase the amount of, compensation or
benefits due to any such Company Employee under any Employee
Agreement or Employee Plan, (B) directly or indirectly cause any of
the members of the Company Group to transfer or set aside any
material assets to fund any benefits under any Employee Agreement
or Employee Plan, (C) otherwise give rise to any material liability
under any Employee Agreement or Employee Plan or (D) limit or
restrict the right to merge, materially amend, terminate or
transfer the assets of any Employee Agreement or Employee Plan on
or following the Effective Time.
(xiii) Neither the execution and delivery of this Agreement,
shareholder or other approval of this Agreement nor the
consummation of the Transactions (including in combination with
other events or circumstances) could result in the payment of any
amount that could, individually or in combination with any other
such payment, constitute an "excess parachute payment" as defined
in Section 280G(b)(1) of the Code.
(xiv) As of the date of this Agreement, the Company has made
available to Parent a true and complete list, as of the Company
Capitalization Date, of all of the Company Share Plans, all
outstanding Company Equity Awards, including, the date of grant,
the type of the award, the number of Company Shares subject to such
type of award (based on the aggregate number of shares granted on
the grant date and vesting on the applicable vesting date), vesting
schedule and, for the Company Options, the applicable exercise
price.
(r) Environmental Matters. Except for those matters that
would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect, (i) (A) the Company
Group is, and since January 1, 2021
has been, in compliance in with all applicable Environmental Laws,
which compliance includes obtaining, maintaining or complying with
all Governmental Authorizations required under Environmental Laws
for the operation of their respective business, (B) as of the date
of this Agreement, there is no investigation, suit, claim, action
or Legal Proceeding relating to or arising under any Company Group
that is pending or, to the knowledge of the Company, threatened in
writing against any member of the Company Group or any Owned Real
Property or Leased Real Property, and (C) as of the date of this
Agreement, since January 1, 2021,
none of the members of the Company Group has received any written
notice, report, demand, letter, claim or other information of or
entered into any legally-binding agreement, Order, settlement,
judgment, injunction or decree involving uncompleted, outstanding
or unresolved violations, liabilities or requirements on the part
of the respective member of the Company Group relating to or
arising under Environmental Laws, and (ii) to the knowledge of the
Company (A) no property currently owned or operated by any member
of the Company Group (including soils, groundwater, surface water,
buildings and surface and subsurface structures) is contaminated
with any Hazardous Substance which could reasonably be expected to
require remediation or other action pursuant to any Environmental
Law, (B) no member of the Company Group is subject to obligation or
liability for any Hazardous Substance disposal or contamination on
any Third Party property, (C) no natural person has been exposed to
any Hazardous Substance at a property or facility of the Company
Group at levels in excess of applicable permissible exposure levels
or (D) there are no other circumstances or conditions involving any
member of the Company Group that could reasonably be expected to
result in any claim, obligation, liability, investigation, cost or
restriction on the ownership, use or transfer of any property
pursuant to any Environmental Law.
(s) Insurance. The Company has made available to Parent
an accurate and complete copy of all material insurance policies
and all material self-insurance programs and arrangements relating
to the business, assets and operations of the Company Group as of
the date of this Agreement (collectively, the "Insurance
Policies"). All Insurance Policies are with reputable
insurance carriers, provide reasonably adequate coverage for all
normal risks incident to the business of the Company and its
Subsidiaries as currently conducted and their respective properties
and assets, and are in character and amount reasonably comparable
to that carried by Persons engaged in similar businesses and
subject to the same or similar risks to the same or similar extent.
Except as would not reasonably be expected to have, individually or
in the aggregate, a Company Material Adverse Effect, all such
insurance policies are in full force and effect (except for any
expiration thereof in accordance with its terms), no notice of
cancellation or modification has been received as of the date of
this Agreement, and there is no existing default or event which,
with the giving of notice or lapse of time or both, would
constitute a default by any insured thereunder.
(t) Legal Proceedings; Orders.
(i) As of the date of this Agreement, there is no Legal
Proceeding pending and served (or, to the knowledge of the Company,
pending and not served or threatened) against any member of the
Company Group or, to the knowledge of the Company, against any
Company Employee in such individual's capacity as such, other than
any Legal Proceedings that would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse
Effect.
(ii) As of the date of this Agreement, there is no Order to
which a member of the Company Group or their respective assets is
subject that is reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect.
(iii) As of the date of this Agreement, no investigation or
review by any Governmental Entity with respect to any member of the
Company Group is pending or, to the knowledge of the Company, is
being threatened, other than any investigations or reviews that
would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
(u) Corporate Authority Relative to this Agreement.
(i) The Company has all requisite corporate power and authority
to enter into this Agreement and, subject to receipt of the Company
Shareholder Approval, to consummate the Transactions, including the
Acquisition. The execution and delivery of this Agreement and the
consummation of the Transactions (including the Acquisition) have
been duly and validly authorized by the Company Board and, except
for (A) the Company Shareholder Approval and (B) the filing of the
required documents and other actions in connection with the Scheme
with, and to receipt of the required approval of the Scheme by, the
Irish High Court, and registration by the Registrar of Companies of
the Court Order and a copy of the minute required by Section 86 of
the Irish Companies Act, no other corporate proceedings on the part
of the Company are necessary to authorize the consummation of the
Transactions (including the Acquisition). On or prior to the date
of this Agreement, the Company Board has determined that the
Transactions are fair to and in the best interests of the Company
and adopted a resolution to make, subject to Section 5.2 and to the
obligations of the Company Board under the Irish Takeover Rules,
the Scheme Recommendation and the recommendation contemplated by
Section 3.6(b). This Agreement has been duly and validly executed
and delivered by the Company and, assuming this Agreement
constitutes the valid and binding agreement of the Parent Parties,
constitutes the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
subject to the Equitable Exceptions.
(ii) The execution, delivery and performance by the Company of
this Agreement and the consummation by the Company of the
Transactions (including the Acquisition) require no action by or in
respect of, Clearances of, or Filings with, any Governmental Entity
other than (A) compliance with the provisions of the Irish
Companies Act, (B) compliance with the Irish Takeover Panel Act and
the Irish Takeover Rules, (C) compliance with any applicable
requirements of the HSR Act, (D) compliance with and Filings under
any applicable Antitrust Laws of any non-U.S. jurisdictions or
Foreign Investment Laws, (E) compliance with any applicable
requirements of the Securities Act, the Exchange Act and any other
applicable U.S. state or federal securities laws or pursuant to the
rules of the Nasdaq, and (F) any other actions, Clearances or
Filings the absence of which has not had and would not reasonably
be expected to have, individually or in the aggregate, a Company
Material Adverse Effect.
(v) No Violation. The execution, delivery and performance
by the Company of this Agreement and the consummation of the
Transactions (including the Acquisition) and thereby do not and
will not (i) contravene, conflict with, or result in any violation
or breach of any provision of the Organizational Documents of the
Company, (ii) assuming (solely with respect to the performance
under this Agreement by the Company and the consummation of the
transactions contemplated by this Agreement) compliance with the
matters referred to in Section 6.1(u)(ii) and receipt of the
Company Shareholder Approval, contravene, conflict with or result
in any violation or breach of any provision of any applicable Law,
(iii) assuming (solely with respect to the performance under this
Agreement by the Company and the consummation of the transactions
contemplated by this Agreement) compliance with the matters
referred to in Section 6.1(u)(ii), receipt of the Company
Shareholder Approval, the Company Notes are discharged at or prior
to the Effective Time, and the Company Credit Agreement is
terminated and repaid in full at or prior to the Effective Time,
require any Clearance or other action by any Person under,
constitute a default, or an event that, with or without notice or
lapse of time or both, would constitute a default under, result in
additional payment obligations under or cause or permit the
termination, cancellation, acceleration or other change of any
right or obligation or the loss of any benefit to which any member
of the Company Group is entitled under, any provision of any
Material Contract binding upon any member of the Company Group or
affecting, or relating in any way to, the assets or business of the
Company and its Subsidiaries, or (iv) result in the creation or
imposition of any Lien (other than Permitted Liens) on any asset or
property of the Company or any of its Subsidiaries, except, in the
case of each of clauses (ii) through (iv), as has not had and would
not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
(w) Information Supplied. The information provided by and
relating to the Company and its Subsidiaries to be contained in the
Scheme Document, the Proxy Statement and any other documents filed
or furnished with or to the Irish High Court, the SEC or pursuant
to the Irish Companies Act and the Irish Takeover Rules in each
case in connection with the Acquisition will not, on the date the
Scheme Document and the Proxy Statement (and any amendment or
supplement thereto) is first mailed to the Company Shareholders and
at the time of the Scheme Meeting, contain any untrue statement of
any material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, at the time and in light of the circumstances under which
they were made, not false or misleading.
(x) Fairness Opinion. The Company Board (in such
capacity) has received the opinion of Morgan Stanley & Co LLC,
as financial advisor to the Company, on or prior to the date of
this Agreement, to the effect that, as of the date of such opinion
and based on and subject to the matters set out therein, including
the various assumptions made, procedures followed, matters
considered and qualifications and limitations set out therein, the
Consideration to be paid to the holders of Company Shares pursuant
to this Agreement is fair, from a financial point of view, to such
holders, and as of the date of this Agreement the foregoing opinion
has not been withdrawn, revoked or modified in any respect. It is
agreed and understood that such opinion is for the benefit of the
Company Board. The Company shall deliver or make available to
Parent solely for informational purposes a copy of the signed
opinion as soon as practicable following the Company's receipt of
such opinion.
(y) Brokers and Other Advisors. Except for Morgan Stanley
& Co LLC and J.P. Morgan LLC, no broker, finder, investment
banker, financial advisor or other Person is entitled to any
brokerage, finder's or other similar fee or commission, or the
reimbursement of expenses in connection therewith, in connection
with the Transactions based upon arrangements made by or on behalf
of the Company. The Company has made available to Parent (on an
"outside counsel only" basis) correct and complete copies of all
Contracts pursuant to which any broker, finder, investment banker,
financial advisor or other Person is entitled to any fees, rights
to indemnification and expenses in connection with any of the
Transactions.
(z) No Other Representations or Warranties; Acknowledgment by
the Company. Except for the representations and warranties
expressly set out in this Section 6.1, none of the members of the
Company Group nor any of their Affiliates nor any other Person on
behalf of any of them is making or has made any express or implied
representation or warranties of any kind or nature whatsoever,
including with respect to the Company Group or its respective
businesses or with respect to any other information made available
to Parent, Acquirer Sub or their Representatives in connection with
the Transactions, including the accuracy or completeness thereof
and the Company hereby expressly disclaims any such other
representations and warranties.
6.2 Parent Representations and Warranties. Subject
to Section 10.8, each of Parent and Acquirer Sub jointly and
severally represents and warrants to the Company as follows:
(a) Qualification and Organization. Each Parent Party is
a legal entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization. Each
Parent Party has all requisite corporate power and authority
required to own or lease all of its properties or assets and to
carry on its business as now conducted. Each Parent Party is duly
qualified to do business and is in good standing in each
jurisdiction where such qualification is necessary, except for
those jurisdictions where failure to be so qualified or in good
standing has not had and would not reasonably be expected to have,
individually or in the aggregate, a Parent Material Adverse Effect.
Prior to the date of this Agreement, Parent has made available to
the Company true and complete copies of the Organizational
Documents of each of Parent and Acquirer Sub, in each case, as in
effect on the date of this Agreement. Acquirer Sub was formed
solely for the purpose of engaging in the Transactions and
activities incidental thereto and has not engaged in any business
activities or conducted any operations other than in connection
with the Transactions and those incident to its formation. Either
Parent or a wholly owned subsidiary of Parent owns beneficially and
of record all of the outstanding capital stock of Acquirer Sub.
(b) Corporate Authority Relative to this Agreement.
(i) Each of Parent and Acquirer Sub has all requisite corporate
power and authority to enter into this Agreement and, with respect
to Parent, to consummate the Transactions, including the
Acquisition. The execution and delivery of this Agreement and the
consummation of the Transactions (including the Acquisition) have
been duly and validly authorized by the Parent board and, except
for the filing of the required documents in connection with the
Scheme with, and to receipt of the required approval of the Scheme
by, the Irish High Court, no other corporate proceedings on the
part of Parent or Acquirer Sub are necessary to authorize the
consummation of the Transactions (including the Acquisition). This
Agreement has been duly and validly executed and delivered by
Parent and Acquirer Sub and, assuming this Agreement constitutes
the valid and binding agreement of the Company, constitutes the
valid and binding agreement of Parent and Acquirer Sub, enforceable
against Parent and Acquirer Sub in accordance with its terms,
subject to the Equitable Exceptions.
(ii) The execution, delivery and performance by Parent and
Acquirer Sub of this Agreement (in the case of Parent, and the
consummation by Parent and Acquirer Sub of the Transactions
(including the Acquisition)) require no action by or in respect of,
Clearances of, or Filings with, any Governmental Entity other than
(A) compliance with the provisions of the Irish Companies Act, (B)
compliance with the Irish Takeover Panel Act and the Irish Takeover
Rules, (C) compliance with any applicable requirements of the HSR
Act, (D) compliance with and Filings under any Antitrust Laws of
any non-U.S. jurisdictions or any Foreign Investment Laws, (E)
compliance with any applicable requirements of the Securities Act,
the Exchange Act and any other applicable U.S. state or federal
securities laws or pursuant to the rules of the Nasdaq, and (F) any
other actions, Clearances or Filings the absence of which has not
had and would not reasonably be expected to have, individually or
in the aggregate, a Parent Material Adverse Effect.
(c) No Violation. Assuming compliance with the Scheme,
the Act and any directions or orders of the Irish High Court, the
execution, delivery and performance by Parent and Acquirer Sub of
this Agreement and the consummation of the Transactions (including
the Acquisition) do not and will not (A) contravene, conflict with,
or result in any violation or breach of any provision of the
Organizational Documents of Parent or Acquirer Sub, (B) assuming
compliance with the matters referred to in Section 6.2(b)(ii),
contravene, conflict with or result in any violation or breach of
any provision of any applicable Law, (C) assuming compliance with
the matters referred to in Section 6.2(b)(ii), require any
Clearance or other action by any Person under, constitute a
default, or an event that, with or without notice or lapse of time
or both, would constitute a default, under, or cause or permit the
termination, cancellation, acceleration or other change of any
right or obligation or the loss of any benefit to which Parent or
any of its Subsidiaries is entitled under, any provision of any
Parent permit or any Contract binding upon Parent or any of its
Subsidiaries or affecting, or relating in any way to, the assets or
business of Parent and its Subsidiaries, or (D) result in the
creation or imposition of any Lien on any asset of Parent or any of
its Subsidiaries, except, in the case of each of clauses (B)
through (D), as has not had and would not reasonably be expected to
have, individually or in the aggregate, a Parent Material Adverse
Effect.
(d) Investigations; Litigation. As of the date of this
Agreement, there is no Legal Proceeding pending or, to the
knowledge of Parent, threatened in writing against or affecting
Parent, any of its Subsidiaries, any present or former officers,
directors or employees of Parent or any of its Subsidiaries in
their respective capacities as such, or any of the respective
properties or assets of Parent or any of its Subsidiaries, before
(or, in the case of threatened Legal Proceedings, that would be
before) any Governmental Entity (i) that has been or would
reasonably be expected to have, individually or in the aggregate, a
Parent Material Adverse Effect or (ii) that would in any manner
challenge or seek to prevent, enjoin or alter any of the other
Transactions. As of the date of this Agreement, there is no Order
outstanding or, to the knowledge of Parent, threatened in writing
against or affecting Parent, any of its Subsidiaries, any present
or former officers, directors or employees of Parent or any of its
Subsidiaries in their respective capacities as such, or any of the
respective properties or assets of any of Parent or any of its
Subsidiaries, that has been or would reasonably be expected to
have, individually or in the aggregate, a Parent Material Adverse
Effect.
(e) Ownership of Shares. Neither Parent nor any of
Parent's Affiliates directly or indirectly owns, and at all times
for the past three years, neither Parent nor any of Parent's
controlled Affiliates has owned, beneficially or otherwise, any
Company Share or any securities, contracts or obligations
convertible into or exercisable or exchangeable for Company Share.
Neither Parent nor Acquirer Sub has enacted or will enact a plan
that complies with Rule 10b5-1 under the Exchange Act covering the
purchase of any of the shares of the Company's capital stock.
(f) Information Supplied. The information provided by and
relating to Parent and its Affiliates to be contained in the Scheme
Document, the Proxy Statement and any other documents filed or
furnished with or to the Irish High Court, the SEC or pursuant to
the Irish Companies Act and the Irish Takeover Rules in each case
in connection with the Acquisition will not, on the date the Scheme
Document and the Proxy Statement (and any amendment or supplement
thereto) is first proposed to the Company Shareholders and at the
time of the Scheme Meeting, contain any untrue statement of any
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, at the time and in light of the circumstances under which
they were made, not false or misleading.
(g) Financing.
(i) From the date of this Agreement to and including the
Completion (or if earlier, the termination of this Agreement
pursuant to and in accordance with Section 9), Parent and Acquirer
Sub shall have, at all times, sufficient cash, available lines of
credit or other sources of immediately available and cleared funds
to enable Parent and Acquirer Sub to make all required payments
payable on the Completion in connection with the Transactions,
including the payment of expenses and fees (such amounts,
collectively, the "Financing Amounts").
(ii) As of the date of this Agreement, Parent has delivered to
the Company true, correct and complete copies, dated as of the date
of this Agreement, of the fully executed Debt Agreement, together
with all attached exhibits, schedules and annexes, and the fee
letters (which may be redacted as described below) associated
therewith (but excluding any side letters or other similar
agreements which do not impact the amount or availability of the
Financing or amend or, waive any of the terms of the Debt Agreement
or expand the conditions to obtaining the Financing on or before
the occurrence of Completion), to provide to Parent the amount of
financing set forth in the Debt Agreement, in order to consummate
the Transactions. As of the date of this Agreement, a true, correct
and complete copy of each fee letter related to the Debt Agreement
as in effect on the date of this Agreement has been provided to the
Company, except that the fees and other customary "flex" terms
(including provisions in such fee letter related to fees and
economic terms) may have been redacted; provided, however,
that no redacted term provides that the aggregate amount or net
cash proceeds of the Financing set forth in the unredacted portion
of the Debt Agreement could be reduced or adds or modifies any
conditions or contingencies that affect the availability of all or
any portion of the Financing. Parent has fully paid (or caused to
be paid) all commitment and other fees, if any, required by the
Debt Agreement that are due and payable on or before the date of
this Agreement. As of the date of this Agreement and other than as
set forth in the Debt Agreement and assuming the satisfaction or
waiver of each of the Conditions at Completion, there are no
conditions precedent to the funding of the full amount of the
Financing as necessary to consummate the transactions contemplated
by this Agreement and to satisfy all of the payment and other
obligations of Parent and Acquirer Sub under this Agreement, and
there are no contractual contingencies or other provisions under
any agreement (including any side letters) relating to the
Transactions to which Parent or Acquirer Sub or any of their
respective Affiliates is a party that would permit the Financing
Sources to reduce the total amount of the Financing or impose any
additional conditions precedent to the availability of the
Financing or that could affect the timing, termination or
availability of the Financing necessary to consummate the
Transactions.
(iii) As of the date of this Agreement, the Debt Agreement is a
valid and binding obligation of Parent and, to the knowledge of
Parent, each other party thereto, and is enforceable in accordance
with its terms, subject, in each case, to Equitable Exceptions, and
in full force and effect, and has not been amended, modified,
withdrawn, terminated or rescinded in any respect. No such
amendment, modification, withdrawal termination, or rescission is
contemplated by Parent or, to the knowledge of Parent, any other
party thereto (other than as set forth therein with respect to
"flex" rights and/or to add additional lenders, arrangers,
bookrunners, syndication agents and similar entities who had not
executed the Debt Agreement as of the date of this Agreement). As
of the date of this Agreement, assuming that each of the Conditions
are satisfied at Completion, no event has occurred that (with or
without notice, lapse of time or both) constitutes a breach or
default under the Debt Agreement on the part of Parent. Other than
customary engagement letters, the redacted fee letters provided in
accordance with clause (ii) above or nondisclosure or non-reliance
agreements which do not impact the conditionality or aggregate
amount of the Financing, as of the date of this Agreement, there
are no other contracts or side letters, or arrangements to which
Parent or any of its Affiliates is a party related to the
Financing, other than as expressly contained in the Debt Agreement
or otherwise delivered to the Company. As of the date of this
Agreement, Parent does not have any reason to believe that any of
the conditions to the Financing will not be satisfied or, assuming
satisfaction or waiver of the conditions to the Financing, that the
Financing will not be available to Parent on the date on which
Completion shall occur.
(iv) Notwithstanding anything contained in this Agreement to the
contrary, the obligations of the Parent Parties under this
Agreement, including their obligations to consummate the
Completion, are not conditioned in any manner upon the Parent
Parties obtaining the Financing or any other financing.
(h) No Other Representations or Warranties; Acknowledgment by
Parent and Acquirer Sub.
(i) Except for the representations and warranties expressly set
out in this Section 6.2, neither Parent nor Acquirer Sub nor any of
their Affiliates nor any other Person on behalf of any of them is
making or has made any express or implied representation or
warranties of any kind or nature whatsoever, including with respect
to Parent, Acquirer Sub or their respective businesses or with
respect to any other information made available to the Company
Group or its Representatives in connection with the Transactions,
including the accuracy or completeness thereof and Parent and
Acquirer Sub hereby expressly disclaim any such other
representations and warranties.
(ii) Parent and Acquirer Sub acknowledge and agree that, except
for the representations and warranties made by the Company in this
Agreement (as qualified by the Company Disclosure Schedule), none
of the members of the Company Group nor any of their Affiliates nor
any other Person is making or has made any representations or
warranties, expressed or implied, at law or in equity, with respect
to or on behalf of the Company Group, its businesses, operations,
assets, liabilities, financial condition, results of operations,
future operating or financial results, estimates, projections,
forecasts, plans or prospects (including the reasonableness of the
assumptions underlying such estimates, projections, forecasts,
plans or prospects) or the accuracy or completeness of any
information regarding the Company or any member of the Company
Group or any other matter made available to Parent, Acquirer Sub or
their Representatives in expectation of, or in connection with,
this Agreement or the Transactions. Neither Parent nor Acquirer Sub
is relying upon and each of Parent and Acquirer Sub specifically
disclaims that it is relying upon or has relied upon any such other
representations or warranties that may have been made by any Person
and acknowledges and agrees that the Company and each member of the
Company Group and their Affiliates have specifically disclaimed any
such other representations and warranties.
(iii) Parent and Acquirer Sub have conducted their own
independent investigation of the Company and the Company Group and
the Transactions and have had an opportunity to discuss and ask
questions regarding the Company and the Company Groups' businesses
with the management of the Company.
SECTION 7. ADDITIONAL AGREEMENTS
7.1 Access to Information; Confidentiality; Notices of
Certain Events.
(a) Upon reasonable notice, the Company shall, and shall cause
its Subsidiaries to, afford to Parent, its Subsidiaries and its and
their respective Representatives and Financing Sources, reasonable
access during normal business hours, during the period from the
date of this Agreement to the earlier of the Completion and the
date, if any, on which this Agreement is validly terminated
pursuant to and in accordance with Section 9, to (i) its and its
Subsidiaries' properties, contracts, commitments and books and
records and (ii) all other information not made available pursuant
to clause (i) of this Section 7.1(a) concerning its and its
Subsidiaries' businesses, properties and personnel as Parent may
reasonably request; provided, however, that any such access
shall be conducted at Parent's expense, at a reasonable time and in
compliance with then- applicable local COVID-19 Measures, under the
supervision of appropriate personnel of the Company and in such a
manner as not to unreasonably interfere with the normal operation
of the business of the Company and its Subsidiaries; provided,
further, that the Company shall be permitted to provide such
information electronically or by other remote access where
practicable. Any such access shall be subject to the Company's
reasonable security measures and insurance requirements and shall
not include invasive testing.
(b) Without limiting the generality of Section 7.1(a) (and
subject to the limitations set forth therein), during the period
from the date of this Agreement to the earlier of the Completion
and the date, if any, on which the Agreement is validly terminated
pursuant to and in accordance with Section 9, the Company agrees
to, and to cause its Subsidiaries to, subject to applicable Law
including Antitrust Law, (i) reasonably assist and reasonably
cooperate with Parent and its Subsidiaries (A) to facilitate the
post-Completion integration of the Company Group with Parent and
its Subsidiaries (including, at the request of Parent from time to
time, reasonably assisting and cooperating with Parent and its
Affiliates in the planning and development of a post- Completion
integration plan) and (B) by making reasonably available relevant
Third Party advisors and employees on a mutually convenient basis,
at the reasonable request of Parent from time to time, for
post-Completion Tax planning and other Tax matters related to this
Agreement (including any matters described in Section 7.13 or any
other planning that is aimed at preserving or obtaining a Tax basis
step up in the assets of the Company and its Subsidiaries for
applicable Tax purposes, it being understood and agreed that
neither the Company nor any of its Subsidiaries makes any
representations regarding the availability or effectiveness of such
Tax planning); provided, that (1) the Company is not hereby
required (before the Completion) to make any Tax elections,
transfers of entities, or take any other action or step that may be
requested by Parent that (x) would have a greater than a de
minimis effect on the Company or any of its Subsidiaries or
shareholders, or (y) would reasonably be expected to prevent or
delay the Completion, (2) Parent shall indemnify the Company for
any and all costs and expenses (including any Taxes) that may
result from any election or restructuring, or any other action as
to which the Company incurs material costs and expenses, in each
case requested by Parent from the Company or its Subsidiaries
pursuant to this Section 7.1(b)(i)(B); and (3) that such
cooperation shall not require any party to disclose any information
subject to applicable privileges, including the attorney-client
privilege, and (ii) provide reasonable access to key personnel
identified by Parent to facilitate Parent's efforts with respect to
the post-Completion retention of such key personnel.
(c) Notwithstanding anything to the contrary in this Section 7.1
or Section 7.2, neither the Company nor any of its respective
Subsidiaries shall be required to provide access to, disclose
information to or assist or cooperate with Parent, its Subsidiaries
and its and their respective Representatives in each case if and to
the extent such access, disclosure, assistance or cooperation (i)
would jeopardize any attorney-client privilege with respect to such
information, or (ii) would, as reasonably determined based on the
advice of outside counsel, contravene any applicable Law or
confidentiality obligations in any Contract to which any member of
the Company Group is subject or bound; provided that the
Company shall, and shall cause its Subsidiaries to, use reasonable
best efforts to make appropriate substitute disclosure arrangements
under circumstances in which such restrictions apply (including
redacting such information (A) to remove references concerning
valuation of the Company Group, (B) as necessary to comply with any
Contract in effect on the date of this Agreement or after the date
of this Agreement or with applicable Laws and (C) as necessary to
address reasonable attorney-client, work-product or other privilege
or confidentiality concerns, or entering into a joint defense or
other arrangement) and to provide such information as to the
applicable matter as can be conveyed. Each of the Company and
Parent may, as each deems advisable and necessary, reasonably
designate any competitively sensitive material provided to the
other under this Section 7.1 or Section 7.2 as "Outside Counsel
Only Material." Such materials and the information contained
therein shall be given only to the outside counsel of the recipient
and, subject to any additional confidentiality or joint defense
agreement the Parties may mutually propose and enter into, will not
be disclosed by such outside counsel to employees, officers or
directors of the recipient unless express permission is obtained in
advance from the source of the materials (the Company or Parent, as
the case may be) or its legal counsel.
(d) Each Party shall promptly notify and provide copies to the
other Party of the occurrence of any event which would or would
reasonably be expected to (A) prevent or materially delay the
consummation of the Scheme, the Acquisition or the other
Transactions or (B) result in the failure of any Condition;
provided that the delivery of any notice pursuant to this
Section 7.1(d) shall not in and of itself (i) affect or be deemed
to modify any representation, warranty, covenant, right, remedy, or
condition to any obligation of any Party hereunder or (ii) update
any section of the Company Disclosure Schedule. A failure of either
Party to provide information pursuant to this Section 7.1(d) shall
not constitute a breach for purposes of any Condition.
(e) The Parties hereby agree that all information provided to
them or their respective Representatives pursuant to this Agreement
shall be subject to the Confidentiality Agreement.
7.2 Consents and Regulatory Approvals.
(a) The terms of the Acquisition at the date of publication of
the Scheme Document shall be set out in the Rule 2.7 Announcement
and the Scheme Document, to the extent required by applicable
Laws.
(b) Subject to the terms and conditions of this Agreement, each
Party shall, and each shall cause its Subsidiaries to, use its
respective reasonable best efforts to take, or cause to be taken,
(i) all actions and to do, or cause to be done, all things
necessary, proper or advisable, to the extent permitted by
applicable Laws, to achieve satisfaction of the Conditions and to
consummate the Acquisition and the other Transactions and (ii) all
actions, to file, or cause to be filed, all documents and to do, or
cause to be done, and to assist and cooperate with the other
Parties in doing, all things necessary, proper or advisable under
applicable Antitrust Laws to consummate and make effective the
Transactions as soon as reasonably practicable, including: (A) the
obtaining of all necessary Clearances and expirations or
terminations of waiting periods from Governmental Entities and the
making of all necessary registrations and filings and the taking of
all steps as may be necessary to obtain any such Clearances or
expiration or termination of a waiting period by or from, or to
avoid an action or proceeding by, any Governmental Entity in
connection with any Antitrust Law, (B) the obtaining of all
necessary Clearances from Third Parties, and (C) the execution and
delivery of any additional instruments necessary to consummate the
Transactions.
(c) In furtherance and not in limitation of the foregoing, the
Parties agree to use reasonable best efforts to, and cause their
Affiliates to use reasonable best efforts to, promptly take all
actions and steps requested or required by any Governmental Entity
as a condition to granting any Clearances, and to cause the prompt
expiration or termination of any applicable waiting period and to
resolve objections, if any, of the FTC or DOJ, or other
Governmental Entities of any Required Non-U.S. Jurisdiction so as
to obtain such Clearances under the HSR Act or other Antitrust
Laws, and to avoid the commencement of a lawsuit by the FTC, the
DOJ or other Governmental Entities under Antitrust Laws, and to
avoid the entry of, or to effect the dissolution of, any Order in
any Legal Proceeding which would otherwise have the effect of
preventing the Completion or delaying the Completion beyond the End
Date, including (i) negotiating, committing to and effecting, by
consent decree, hold separate order or otherwise, the sale, lease,
license, divestiture or disposition of any assets, rights, product
lines, or businesses of the Company or any of its Subsidiaries,
(ii) terminating existing relationships, contractual rights or
obligations of the Company or any of its Subsidiaries, (iii)
terminating any venture or other arrangement of the Company or any
of its Subsidiaries, (iv) creating any relationship, contractual
rights or obligations of the Company or any of its Subsidiaries,
(v) effectuating any other change or restructuring of the Company
or any of its Subsidiaries and (vi) otherwise taking or committing
to take any actions with respect to the businesses, product lines
or assets of the Company or any of its Subsidiaries (the actions
referred to in clauses (i) through (vi), collectively,
"Remedy Actions"); provided, however, that,
notwithstanding anything to the contrary herein (including the
"reasonable best efforts standard" set forth in Section 7.2(b)),
neither Parent nor any of its Affiliates shall be required to
proffer, consent to or agree to or effect any Remedy Action (x)
with respect to any assets, categories of assets or portions of any
business of the Company or any of its Subsidiaries if, in each
case, any such Remedy Action would, individually or in the
aggregate, reasonably be expected to be material to the business,
assets or financial condition of the Company and its Subsidiaries,
taken as a whole or (y) with respect to the items listed on Section
7.2(c) of the Company Disclosure Schedule or (z) for the avoidance
of doubt, with respect to any assets, categories of assets or
portions of any business of Parent or its Affiliates (such effect
referred to in clauses (x), (y), or (z), a "Burdensome
Condition"); provided, further, that the
Company shall only be permitted to take or commit to take such
Remedy Action with the prior written consent of Parent; provided,
further, that Parent may only require the Company to take or commit
to take any such Remedy Action if such Remedy Action is binding on
the Company only in the event the Completion occurs.
(d) Subject to the terms and conditions of this Agreement, each
of the Parties hereto shall (and shall cause their respective
Affiliates, if applicable, to) (i) promptly, but in no event later
than 15 Business Days after the date of this Agreement (or such
later date as may be agreed in writing among the Parties), make an
appropriate filing of all Notification and Report forms as required
by the HSR Act with respect to the Transactions and (ii) as
promptly as reasonably practicable after the date of this Agreement
and in any event no later than January 16,
2023 (or such later date as may be agreed in writing among
the Parties), make all other filings, notifications or other
consents as may be required to be made or obtained by such Party
under foreign Antitrust Laws or Foreign Investment Laws in those
jurisdictions identified in Section 7.2(d) of the Company
Disclosure Schedule, which contains the list of the only non U.S.
jurisdictions where filing, notification, expiration of a waiting
period or consent or approval is a condition to Completion as
agreed by the Parties (each, a "Required Non-U.S.
Jurisdiction").
(e) Parent shall consult in advance with the Company, and take
into account in good faith the views of the Company, regarding the
strategy for all matters with any Governmental Entity; provided,
that, in the event of a disagreement regarding such strategy,
the determination of Parent shall be final so long as consistent
with its obligations hereunder. Notwithstanding anything in this
Agreement to the contrary, neither Party shall commit to or agree
with any Governmental Entity to stay, toll or extend any applicable
waiting period under the HSR Act, or pull and refile under the HSR
Act, or other applicable Antitrust Laws or Foreign Investment Laws,
without the prior written consent of the other Party (such consent
not to be unreasonably withheld, conditioned or delayed). Without
limiting the generality of anything contained in this Section 7.2,
each Party hereto shall use its reasonable best efforts to (i)
cooperate in all respects and consult with each other in connection
with any filing or submission in connection with any investigation
or other inquiry, including allowing the other Party to have a
reasonable opportunity to review in advance and comment on drafts
of filings and submissions, in each case, as required under
applicable Antitrust Laws, (ii) give the other Parties prompt
notice of the making or commencement of any request, inquiry,
investigation or Legal Proceeding brought by a Governmental Entity
or brought by a Third Party before any Governmental Entity, in each
case, with respect to the Transactions under applicable Antitrust
Laws, (iii) promptly keep the other Parties informed as to the
status of any such request, inquiry, investigation, action or Legal
Proceeding under applicable Antitrust Laws, (iv) promptly inform
the other Parties of any communication to or from the FTC, DOJ or
any other Governmental Entity in connection with any such request,
inquiry, investigation or Legal Proceeding under applicable
Antitrust Laws, (v) promptly furnish to the other Party, subject to
an appropriate confidentiality agreement to limit disclosure to
outside counsel and consultants retained by such counsel, with
copies of documents, communications or materials provided to or
received from any Governmental Entity in connection with any such
request, inquiry, investigation, action or Legal Proceeding under
applicable Antitrust Laws, (vi) subject to an appropriate
confidentiality agreement to limit disclosure to counsel and
outside consultants retained by such counsel, and to the extent
reasonably practicable, consult in advance and cooperate with the
other Parties and consider in good faith the views of the other
Parties in connection with any substantive communication, analysis,
appearance, presentation, memorandum, brief, argument, opinion or
proposal to be made or submitted in connection with any such
request, inquiry, investigation, action or Legal Proceeding under
applicable Antitrust laws and (vii) except as may be prohibited by
any Governmental Entity or by any Law, in connection with any such
request, inquiry, investigation or Legal Proceeding in respect of
the Transactions, each Party shall provide advance notice of and
permit authorized Representatives of the other Party to be present
at each meeting or conference relating to such request, inquiry,
investigation or Legal Proceeding under applicable Antitrust Laws
and to have access to and be consulted in advance in connection
with any argument, opinion or proposal to be made or submitted to
any Governmental Entity in connection with such request, inquiry,
investigation or Legal Proceeding under applicable Antitrust Laws;
provided that documents and information provided to the
other Party pursuant to this paragraph may be redacted (A) to
remove references to valuation of the Company or the identity of
alternative acquirers, (B) to comply with contractual arrangements,
or (C) to protect privilege, and may be limited to outside counsel
and outside consultants retained by such counsel. Each Party shall
supply as promptly as practicable such information, documentation,
other material or testimony that may be reasonably requested by any
Governmental Entity, including by responding at the earliest
reasonably practicable date with any request for additional
information, documents or other materials, including any "second
request" under the HSR Act, received by any Party or any of their
respective Subsidiaries from any Governmental Entity in connection
with such applications or filings for the Transactions under
applicable Antitrust Laws. Parent and Acquirer Sub shall pay all
filing fees under the HSR Act and for any filings required under
Required Non-U.S. Jurisdictions, but the Company shall bear its own
costs for the preparation of any such filings.
(f) Parent agrees that it shall not, and shall not permit any of
its controlled Affiliates to, directly or indirectly, acquire or
agree to acquire any assets, business or any Person (whether by
merger, consolidation, license, purchasing a substantial portion of
the assets of or equity in any Person or by any other manner) if
the entering into of an agreement relating to or the consummation
of such acquisition, merger, consolidation or purchase, whether
individually or in the aggregate, would reasonably be expected to
(i) impose any material delay in the expiration or termination of
any applicable waiting period or impose any material delay in the
obtaining of, or increase the risk of not obtaining, any Clearance
under the HSR Act or any other Required Non-U.S. Jurisdiction, (ii)
materially increase the risk of any Governmental Entity entering
any permanent, preliminary or temporary injunction or other order,
decree, decision, determination or judgment that would materially
delay, restrain, prevent, enjoin or otherwise prohibit consummation
of the Acquisition and the other Transactions or (iii) otherwise
prevent the consummation of the Acquisition and the Transactions by
the End Date.
(g) In the event that the latest date on which the Irish High
Court or the Irish Takeover Panel would permit Completion to occur
is prior to the End Date, the Parties shall use their respective
reasonable best efforts to obtain consent of the Irish High Court
or the Irish Takeover Panel, as applicable, to an extension of such
latest date (but not beyond the End Date). If (i) the Irish High
Court or the Irish Takeover Panel require the lapsing of the Scheme
prior to the End Date, or (ii) the Condition set out in paragraph 1
of the Conditions fails to be satisfied, the Parties shall (unless
and until this Agreement is terminated pursuant to and in
accordance with Section 9) take all reasonable actions required in
order to re-initiate the Scheme process as promptly as practicable
(it being understood that no such lapsing described in clause (i)
or (ii) shall, in and of itself, result in a termination of, or
otherwise affect any rights or obligations of any Party under, this
Agreement).
7.3 Directors' and Officers' Indemnification and
Insurance.
(a) For a period of not less than six years from the Effective
Date, Parent shall cause the Company or any applicable Subsidiary
thereof (collectively, the "D&O Indemnifying
Parties"), to the fullest extent each such D&O
Indemnifying Party is so authorized or permitted by applicable
Laws, as now or hereafter in effect, to: (i) indemnify and hold
harmless, to the fullest extent permitted under the applicable Laws
and pursuant to existing arrangements and Organizational Documents
of the Company Group (as in effect as of the date of this
Agreement) each person who is at the date of this Agreement, was
previously, or during the period from the date of this Agreement
through the date of the Effective Time, serving as a director or
officer of the Company or any of its Subsidiaries, or at the
request or for the benefit of the Company or any of its
Subsidiaries as a director, trustee or officer of any other entity
or any benefit plan maintained by the Company or any of its
Subsidiaries (collectively, the "D&O Indemnified
Parties"), as in effect as of the date of this Agreement,
in connection with any D&O Claim and any losses, claims,
damages, liabilities, Claim Expenses, judgments, fines, penalties
and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection with or in respect
of any thereof) relating to or resulting from a D&O Claim; and
(ii) promptly advance to such D&O Indemnified Party any Claim
Expenses incurred in defending, serving as a witness with respect
to or otherwise participating with respect to any D&O Claim in
advance of the final disposition of such D&O Claim, including
payment on behalf of or advancement to the D&O Indemnified
Party of any Claim Expenses incurred by such D&O Indemnified
Party in connection with enforcing any rights with respect to such
indemnification or advancement, in each case without the
requirement of any bond or other security, but subject to the
D&O Indemnifying Party's receipt of a written undertaking by or
on behalf of such D&O Indemnified Party to repay such Claim
Expenses if it is ultimately determined under applicable Laws that
such D&O Indemnified Party is not entitled to be indemnified.
All rights to indemnification and advancement conferred hereunder
shall continue as to a Person who has ceased to be a director or
officer of the Company or any of its Subsidiaries after the date of
this Agreement and shall inure to the benefit of such Person's
heirs, successors, executors and personal and legal
representatives. As used in this Section 7.3: (x) the term
"D&O Claim" means any threatened, asserted,
pending or completed Legal Proceeding, whether instituted by any
Governmental Entity or any other Person, arising out of or
pertaining to acts or omissions occurring at or prior to the
Effective Time that relate to such D&O Indemnified Party's
duties or service (A) as a director or officer of the Company or
the applicable Subsidiary thereof at or prior to the Effective Time
(including with respect to any acts, facts, events or omissions
occurring in connection with the approval of this Agreement, the
Scheme, the Acquisition and the consummation of the other
Transactions (including the Acquisition), including the
consideration and approval thereof and the process undertaken in
connection therewith) or (B) as a director, trustee or officer of
any other entity or any benefit plan maintained by the Company or
any of its Subsidiaries (for which such D&O Indemnified Party
is or was serving at the request or for the benefit of the Company
or any of its Subsidiaries) at or prior to the Effective Time; and
(y) the term "Claim Expenses" means reasonable
out-of-pocket attorneys' fees and all other reasonable
out-of-pocket costs, expenses and obligations (including experts'
fees, travel expenses, court costs, retainers and transcript fees)
paid or incurred in connection with investigating, defending, being
a witness in or participating in (including on appeal), or
preparing to investigate, defend, be a witness in or participate in
any D&O Claim for which indemnification is authorized pursuant
to this Section 7.3(a), including any action relating to a claim
for indemnification or advancement brought by a D&O Indemnified
Party.
(b) For a period of not less than six years from the Effective
Date, Parent shall cause the Organizational Documents of the
Company and its Subsidiaries to contain provisions no less
favorable with respect to indemnification, advancement of expenses
and limitations on liability of directors and officers than are set
out in the Organizational Documents of the Company and its
Subsidiaries as of the date of this Agreement, which provisions
shall not be amended, repealed or otherwise modified for a period
of at least six years from the Effective Date in any manner that
would adversely affect the rights thereunder of any D&O
Indemnified Party, unless any modification or amendment is required
by applicable Laws (but then only to the extent required by
applicable Laws). At the Company's option and expense, prior to the
Effective Time, the Company may purchase (and pay in full the
aggregate premium for) a six-year prepaid "tail" insurance policy
(which policy by its express terms shall survive the Acquisition)
of at least the same coverage and amounts and containing terms and
conditions that are no less favorable to the directors and officers
of the Company and its Subsidiaries as the Company's and its
Subsidiaries' existing directors' and officers' insurance policy or
policies with a claims period of six years from the Effective Time
for D&O Claims arising from facts, acts, events or omissions
that occurred on or prior to the Effective Time; provided
that the premium for such tail policy shall not exceed 300% of the
annual amount currently paid by the Company and its Subsidiaries
for such insurance (such amount being the "Maximum
Premium"). If the Company fails to obtain such tail policy
prior to the Effective Time, Parent shall obtain such a tail
policy; provided, however, that the premium for such
tail policy shall not be required to exceed the Maximum Premium;
provided, further, that if such tail policy cannot be
obtained or can be obtained only by paying a premium in excess of
the Maximum Premium, Parent shall only be required to obtain as
much coverage as can be obtained by paying a premium equal to the
Maximum Premium. Parent and the Company shall cause any such policy
(whether obtained by Parent or the Company) to be maintained in
full force and effect, for its full term, and Parent shall,
following the Effective Time, cause the Company to honor all its
obligations thereunder.
(c) If Parent or the Company or any of their respective
successors or assigns (i) consolidates with or merges with or into
any other Person and shall not be the continuing or surviving
company, partnership or other Person of such consolidation or
merger or (ii) liquidates, dissolves or winds-up, or transfers or
conveys all or substantially all of its properties and assets to
any Person, then, and in each such case, proper provision shall be
made so that the successors and assigns of Parent or the Company,
as applicable, assume the obligations set out in this Section
7.3.
(d) The provisions of this Section 7.3 are intended to be for
the express benefit of, and shall be enforceable by, each D&O
Indemnified Party (who are intended to be third party beneficiaries
of this Section 7.3), his or her heirs and his or her personal
Representatives, shall be binding on all successors and assigns of
Parent, and following the Effective Time, the Company. The
exculpation and indemnification provided for by this Section 7.3
shall not be deemed to be exclusive of any other rights to which a
D&O Indemnified Party is entitled, pursuant to applicable Laws
or Contract made available to Parent prior to the date of this
Agreement.
7.4 Employment and Benefit Matters.
(a) From the date of Completion through the first anniversary of
the Effective Time (or, if shorter, the period of employment of the
relevant Continuing Employee) (the "Benefits Continuation
Period"), Parent shall provide or shall cause Acquirer Sub
to provide, to (i) each Continuing Employee a base salary or hourly
rate that is no less favorable than the base salary or hourly rate
provided to such Continuing Employee immediately prior to the
Effective Time, (ii) each Continuing Employee target annual or
quarterly cash bonus, incentive compensation (excluding any
special, retention or one-time award opportunities) and commissions
opportunities (as applicable) that are no less favorable than the
target annual or quarterly cash bonus, incentive compensation
(excluding any special, retention or one-time award opportunities)
and commissions opportunities provided to such Continuing Employee
immediately prior to the Effective Time, and (iii) to the
Continuing Employees as a group, employee benefits that are, in the
aggregate, no less favorable than the employee benefits provided to
similarly-situated employees of Parent and its Subsidiaries;
provided that for purposes of determining whether such
employee benefits are no less favorable in the aggregate, any
equity, defined benefit pension plan benefits, nonqualified
deferred compensation, retiree health or welfare benefits,
post-termination health or welfare benefits, and retention or
change in control payments or awards shall not be taken into
account.
(b) In addition, Acquirer Sub shall provide, and Parent shall
cause Acquirer Sub to provide, to each Continuing Employee who
experiences a termination of employment during the Benefits
Continuation Period, severance, termination and similar benefits
that are no less favorable than the severance, termination and
similar benefits to which such Continuing Employee would have been
entitled upon such a termination of employment under any Employee
Plan that is a severance plan, policy, program, agreement or
arrangement and set out on Section 7.4(b) of the Company Disclosure
Schedule (collectively, the "Severance Arrangements")
and in which such Continuing Employee was eligible to participate
as of immediately prior to the Effective Time. For purposes of
determining compliance with this Section 7.4(b), only the existing
terms of the Severance Arrangements will be taken into account, and
any modifications to the Severance Arrangements that are effective
after the date of this Agreement but prior to the Effective Time
(and are made without Parent's advance written consent) will be
disregarded.
(c) For purposes of vesting, eligibility to participate and
determining level of benefits under the employee benefit plans of
Parent or any Affiliate providing benefits to any Continuing
Employees following the Effective Time (the "New
Plans"), each Continuing Employee shall be credited with
his or her years of service with the Company Group and its
predecessors before the Effective Time, to the same extent and for
the same purpose as such Continuing Employee was entitled, before
the Effective Time, to credit for such service under the
corresponding Employee Plan in which the Continuing Employee
participated or was eligible to participate immediately prior to
the Effective Time, provided that the foregoing shall not
apply with respect to (i) any defined benefit pension plan or any
retiree or post-termination health or welfare benefits, (ii) any
benefit plan that is frozen or for which participation is limited
to a grandfathered population, (iii) any cash- or equity-based
compensation arrangements, or (iv) to the extent that its
application would result in a duplication of benefits or
compensation with respect to the same period of service, and
provided, further, that such service shall only be
credited to the extent service with Parent is credited for
similarly situated employees of the Parent Group under the New
Plans. In addition, and without limiting the generality of the
foregoing, (A) each Continuing Employee shall be immediately
eligible to participate, without any waiting time, in any and all
New Plans to the extent coverage under such New Plan is replacing
comparable coverage under an Employee Plan in which such Continuing
Employee had already satisfied any such waiting period and
participated immediately before the Effective Time (such plans,
collectively, the "Old Plans"), and (B) for purposes
of each New Plan providing medical, dental, pharmaceutical or
vision benefits to any Continuing Employee, Parent shall use its
reasonable best efforts to (1) cause all pre-existing condition
exclusions and actively-at-work requirements of such New Plan to be
waived for such employee and his or her covered dependents, unless
and to the extent the individual, immediately prior to entry in the
New Plans, was subject to such conditions under the comparable Old
Plans, and (2) to the extent not prohibited by the terms, or by any
third party administrator, of any New Plan that is a fully insured
medical, dental, pharmaceutical or vision benefit plan of Parent or
any Affiliate, credit each Continuing Employee with all deductible
payments, co-payments and other out-of-pocket expenses incurred by
such Continuing Employee and his or her covered dependents under
the medical, dental, pharmaceutical or vision benefit plans of the
Company prior to the Completion during the plan year in which the
Completion occurs for the purpose of determining the extent to
which such Continuing Employee has satisfied the deductible,
co-payments or maximum out-of-pocket requirements applicable to
such Continuing Employee and his or her covered dependents for such
plan year under any New Plan that is a medical, dental,
pharmaceutical or vision benefit plan of Parent or its Affiliates,
as if such amounts had been paid in accordance with such plan (to
the extent such credit would have been given under comparable Old
Plans prior to the Completion).
(d) Prior to the Effective Time, if requested by Parent in
writing, the Company shall cause any United States Tax-qualified
defined contribution plan (collectively, the "Company 401(k)
Plan") to be terminated effective immediately prior to the
Effective Time. In the event that Parent requests that the Company
401(k) Plan be terminated, the Company shall provide Parent with
evidence that such Plan has been terminated (the form and substance
of which shall be subject to review and approval by Parent) not
later than the day immediately preceding the Effective Time. Upon
the distribution of the assets in the accounts under the Company
401(k) Plan to the participants, Parent shall permit the Continuing
Employees who are then actively employed by Parent or its
Subsidiaries to make rollover contributions of "eligible rollover
distributions" (within the meaning of Section 401(a)(31) of the
Code), in the form of cash, from the Company 401(k) Plan to the
applicable tax-qualified defined contribution plans of Parent or
its Subsidiaries.
(e) Except as permitted pursuant to Section 10.1, prior to
making any broad- based communications (written or oral) to the
directors, officers or employees of the Company or any of its
Subsidiaries pertaining to compensation or benefit matters that are
affected by the transactions contemplated by this Agreement, the
Company shall provide Parent with a copy of the intended
communication, Parent shall have a reasonable period of time to
review and comment on the communication, and the Company shall
consider any such comments in good faith.
(f) Nothing contained in this Section 7.4 (whether express or
implied) shall (i) create or confer any rights, remedies or claims
upon any employee of the Company or any of its Affiliates or any
right of employment or engagement or continued employment or
engagement or any particular term or condition of employment or
engagement for any Company Employee or any other Person, (ii) be
considered or deemed to establish, amend, or modify any Employee
Plan or any other benefit or compensation plan, program, policy,
agreement, arrangement, or Contract, (iii) prohibit or limit the
ability of Parent or any of its Affiliates to amend, modify or
terminate any benefit or compensation plan, program, policy,
agreement, arrangement, or contract at any time assumed,
established, sponsored or maintained by any of them or (iv) confer
any rights or benefits (including any third-party beneficiary
rights) on any Person other than the Parties.
7.5 Employee Share Purchase Plan. As promptly as
reasonably practicable following the date of this Agreement, the
Company shall take all actions necessary or required under the
Company ESPP and applicable Laws to (i) limit participation in the
Company ESPP to those employees who participated in the Company
ESPP immediately prior to the execution and delivery of this
Agreement, (ii) prevent participants from increasing their payroll
deductions or purchase elections from those in effect immediately
prior to the execution and delivery of this Agreement, (iii) ensure
that, except for any offering period in existence under the Company
ESPP on the date of this Agreement, no offering period shall be
authorized or commenced on or after the date of this Agreement, and
no existing offering period shall be extended, and (iv) if the
Completion shall occur prior to the end of any offering period in
existence under the Company ESPP on the date of this Agreement,
cause the rights of participants in the Company ESPP with respect
to any such offering period (and purchase period thereunder) then
underway under the Company ESPP to be determined by treating the
last Business Day prior to the Effective Time as the last day of
such offering period and purchase period. The Company shall
terminate the Company ESPP in its entirety effective as of the
Effective Time, contingent upon the Effective Time. Prior to the
Effective Time, the Company shall take all actions (including, if
appropriate, amending the terms of the Company ESPP) that are
necessary to give effect to the transactions contemplated by this
Section 7.5.
7.6 Financing.
(a) From and after the date hereof until the earlier of the
Completion and the termination of this Agreement pursuant to and in
accordance with Section 9, in a timely manner so as not to delay
the Completion, the Parent Parties shall use their reasonable best
efforts to (i) take, or cause to be taken, all appropriate action,
and to do, or cause to be done, all things necessary, proper or
advisable to consummate, no later than the date the Completion is
required to occur pursuant to this Agreement, the Financing on the
terms set forth in the Debt Agreement and (ii) satisfy or cause to
be satisfied (or waived) on a timely basis all conditions to
funding described in the Debt Agreement.
(b) In the event any portion of the Financing contemplated by
the Debt Agreement becomes unavailable regardless of the reason
therefor (as determined by Parent in its reasonable discretion
after consulting with the Financing Sources), (i) Parent shall
promptly notify the Company in writing of such unavailability and
the reason therefor and (ii) Parent shall use its reasonable best
efforts, and shall cause each of its Subsidiaries to use their
reasonable best efforts, to obtain as promptly as practicable
following the occurrence of such event, alternative debt financing
for any such portion from alternative sources (the
"Alternative Financing") in an amount sufficient,
when taken together with cash of Parent and its Subsidiaries (but
not including the Company and its Subsidiaries) and the other
sources of funds immediately available to Parent at the Completion
to pay the Financing Amounts and that do not include any conditions
to the consummation of such alternative debt financing that are
more onerous than the conditions set forth in the Debt Agreement.
In addition to the foregoing, the Parent may also obtain
Alternative Financing at its sole discretion which replaces the
Financing, so long as the Parent is able to give the
representations set forth in Section 6.2(h) with respect to such
Alternative Financing as at the date such Alternative Financing
becomes effective (with references to "date hereof," the
"Financing," "Financing Sources" and "Debt Agreement" (and other
like terms) in that section deemed to have been replaced with
references to the date such Alternative Financing, the commitments
thereunder and the agreements with respect thereto becomes
effective).
(c) To the extent requested in writing by the Company from time
to time, the Parent Parties shall provide the Company with updates
on a reasonably current basis on the status of the Financing. The
Parent Parties shall, (i) to the extent not publicly filed, provide
copies of all executed credit agreements and indentures and any
amendments, modifications, replacements or waivers relating to the
Financing or any Indebtedness that is a takeout to the Financing
(or notice that such documents have been publicly filed) within one
Business Day of execution thereof and (ii) provide prompt written
notice (and in any event, within two Business Days) of (A) the
receipt of any written notice or other written communication from
any Financing Source with respect to such Financing Source's
failure or anticipated failure to fund its commitments under any
definitive agreements relating to the Financing, (B) any material
breach or material default by any party to such definitive
agreements of which any Parent Party obtains knowledge, (C) any
actual or, to the knowledge of any Parent Party, threatened in
writing, withdrawal, repudiation, or termination of any of such
definitive agreements or (D) receipt of written notice or other
written communication from any Financing Source relating to a
material dispute or disagreement with respect to the obligation to
fund all or any portion of the Financing at Completion (but
excluding, for the avoidance of doubt, any ordinary course
negotiations with respect to the terms of the Financing or the Debt
Agreement); provided that in no event will the Parent
Parties be under any obligation to disclose any information that is
subject to attorney-client or similar privilege (provided
that the Parent Parties shall use their respective reasonable best
efforts to cause any such information to be disclosed in a manner
that would not result in the loss of any such privilege).
(d) Notwithstanding anything contained in this Agreement to the
contrary, the Parent Parties expressly acknowledge and agree that
their obligations under this Agreement, including their obligations
to consummate the Completion, are not conditioned in any manner
upon the Parent Parties obtaining the Financing or any other
financing. To the extent Parent obtains Alternative Financing
pursuant to Section 7.6(b) or amends, replaces, supplements,
modifies or waives any of the Financing, references to the
"Financing," "Financing Sources" and "Debt Agreement" (and other
like terms in this Agreement) shall be deemed to refer to such
Alternative Financing, the commitments thereunder and the
agreements with respect thereto, or the Financing as so amended,
replaced, supplemented, modified or waived.
7.7 Section 16 Matters. Prior to the Effective
Time, Parent Parties and the Company shall take all such steps as
may be required (to the extent permitted under applicable Laws) to
cause any dispositions of the Company Shares (including derivative
securities with respect to the Company Shares) resulting from the
Transactions by each individual who is subject to the reporting
requirements of Section 16(a) of the Exchange Act with respect to
the Company, to be exempt under Rule 16b-3 promulgated under the Exchange Act.
7.8 Financing Cooperation.
(a) Until the earlier to occur of the Completion and the
termination of this Agreement pursuant to and in accordance with
Section 9, the Company shall use its reasonable best efforts, and
shall cause each of its Subsidiaries to use its reasonable best
efforts, and shall use its reasonable best efforts to cause its and
their respective officers, employees and advisors and other
Representatives, including legal and accounting advisors, to use
their reasonable best efforts, to provide to Parent and its
Subsidiaries such assistance as may be reasonably requested by
Parent in writing that is customary in connection with the
offering, arranging, obtaining, syndication, consummation, issuance
or sale of the Financing, including using reasonable best efforts
with respect to:
(i) participating in and assisting with the due diligence,
syndication or other marketing of the Financing, including using
reasonable best efforts with respect to (A) the participation by
members of management of the Company with appropriate seniority in
a reasonable number of meetings, presentations, road shows,
drafting sessions, due diligence sessions and sessions with
prospective lenders, investors and rating agencies, at times and at
locations reasonably acceptable to the Company and upon reasonable
notice, (B) assisting with Parent's preparation of customary
materials for registration statements, offering documents, private
placement memoranda, bank information memoranda, prospectuses,
rating agency presentations, syndication documents and other
syndication materials, including information memoranda, lender and
investor presentations, bank books and other marketing documents
and similar documents required in connection with any portion of
the Financing (collectively, "Marketing Material")
and due diligence sessions related thereto, (C) delivering and
consenting to the inclusion or incorporation in any SEC filing
related to the Financing of the historical audited consolidated
financial statements and unaudited consolidated interim financial
statements of the Company included or incorporated by reference
into the Company SEC Documents (the "Historical Financial
Statements") and (D) delivering customary authorization
letters, management representation letters, confirmations, and
undertakings in connection with the Marketing Material (in each
case, as applicable, subject to customary confidentiality
provisions and disclaimers);
(ii) timely furnishing Parent and its Financing Sources with
existing historical financial and other customary information
(collectively, the "Financing Information") with
respect to the Company and its Subsidiaries as is reasonably
requested by Parent or its Financing Sources and customarily
required in Marketing Material for Financings of the applicable
type, including all Historical Financial Statements and other
customary information with respect to the Company and its
Subsidiaries (A) of the type that would be required by Regulation
S-X and Regulation S-K under the Securities Act if the Financing
were incurred by Parent and registered on Form S-3 under the
Securities Act, including audit reports of annual financial
statements to the extent so required, or (B) reasonably necessary
to permit Parent to prepare pro forma financial statements
customary for Financings of the applicable type;
(iii) providing to Parent's legal counsel and its independent
auditors such customary documents and other customary information
relating to the Company and its Subsidiaries as may be reasonably
requested in connection with their delivery of any customary
negative assurance opinions and customary comfort letters relating
to the Financing and use reasonable best efforts to cause the
Company's independent auditors to provide customary cooperation
with the respect to the Financing, including by using reasonable
best efforts to cause the Company's independent auditors to provide
customary comfort letters (including "negative assurance" comfort,
if customary and appropriate) in connection with any capital
markets transaction comprising a part of the Financing or
contemplated as part of any refinancing of the Financing, including
at the time of pricing and closing, to the applicable Financing
Sources, and by providing customary representation letters to the
extent required by such independent auditor in connection with the
foregoing;
(iv) obtaining the consents of the Company's independent
auditors to use their audit reports on the audited Historical
Financial Statements of the Company and to references to such
independent auditors as experts in any Marketing Material and
registration statements and related government filings filed or
used in connection with the Financing;
(v) obtaining the Company's independent auditors' customary
assistance with the accounting due diligence activities of the
Financing Sources, including by participating in a reasonable
number of diligence sessions;
(vi) provide customary authorization letters authorizing the
distribution of information related to the Company and its
Subsidiaries to prospective lenders in connection with a syndicated
bank financing;
(vii) assist the Parent Parties in obtaining or updating the
Parent Parties' corporate and facility credit ratings;
(viii) assist the Parent Parties in the negotiation of and
co-operate with the Parent Parties' preparation of any credit
agreement, indenture, note, purchase agreement, underwriting
agreement, and such other customary closing certificates and
schedules as may be reasonably requested by Parent, in each case as
contemplated in connection with the Financing;
(ix) cooperate with internal and external counsel of Parent in
connection with providing customary back-up certificates and
factual information regarding any legal opinion that such counsel
may be required to deliver in connection with the Financing;
(x) providing documents reasonably requested by Parent or the
Financing Sources relating to the repayment or refinancing of any
Indebtedness for borrowed money of the Company or any of its
Subsidiaries to be repaid or refinanced on the Completion Date and
the release of related liens or guarantees (if any) effected
thereby, including customary payoff letters and (to the extent
required) evidence that notice of any such repayment has been
timely delivered to the holders of such Indebtedness, in each case
in accordance with the terms of the definitive documents governing
such Indebtedness (provided that any such notice or payoff
letter shall be expressly conditioned on the Completion);
(xi) procuring consents to the reasonable use of all of the
Company's and its Subsidiaries' logos in connection with the
Financing (provided that such logos are used solely in a
manner that is not intended to and is not reasonably likely to harm
or disparage the Company or its Subsidiaries or the reputation or
goodwill of the Company or any of its Subsidiaries); and
(xii) providing at least three Business Days in advance of the
Completion Date such documentation and other information about the
Company and its Subsidiaries as is reasonably requested in writing
by Parent at least 10 Business Days in advance of the Completion
Date in connection with the Financing that relates to applicable
"know your customer" and anti- money laundering rules and
regulations, including without limitation, the USA PATRIOT ACT,
and, to the extent required by any Financing Source, a beneficial
ownership certificate (substantially similar in form and substance
to the form of Certification Regarding Beneficial Owners of Legal
Entity Customers published jointly, in May
2018, by the Loan Syndications and Trading Association and
Securities Industry and Financial Markets Association) in respect
of any of the Company or any of its Subsidiaries that qualifies as
a "legal entity customer" under the Beneficial Ownership Regulation
(31 C.F.R. § 1010.230).
In addition, in connection with any marketing efforts of the
Parent Parties' Financing, the Parent may reasonably request the
Company to file a Current Report on Form 8-K pursuant to the
Exchange Act that contains material non-public information with
respect to any member of the Company Group, which Parent, in
consultation with the Financing Sources and upon the advice of
outside counsel, reasonably determines is necessary to include in a
registration statement, customary offering memorandum or other
offering document for the Financing (each an "Offering
Document") in order to (i) correct any untrue statement of
a material fact or an omission of a material fact necessary in
order to make the statements therein not misleading or (ii) to
cause such Offering Document to comply with the requirements of the
Securities Act. The Company shall consider such request promptly,
and if the Company approves of such request (such approval not be
unreasonably withheld), then the Company shall promptly file such
Current Report on Form 8- K in a form reasonably satisfactory to
the Company. Notwithstanding anything to the contrary in this
Section 7.8, the Company shall not be obligated to effect any such
filing of a Current Report on Form 8-K pursuant to this Section 7.8
if in the good faith judgment of the Company Board it would be
detrimental to the Company and its shareholders for such Current
Report on Form 8-K to be filed at such time or in the near future,
in which case the Company shall not be obligated to file such
Current Report on Form 8-K.
Notwithstanding anything to the contrary herein, (A) no member
of the Company Group shall be required to take or to permit the
taking of any action pursuant to this Section 7.8 to (i) pay any
commitment or other fee or incur any liability (other than
third-party costs and expenses that are to be promptly reimbursed
by Parent upon request by the Company pursuant to Section 7.8(c)),
(ii) execute or deliver any definitive financing documents or any
other agreement, certificate, document or instrument, or agree to
any change to or modification of any existing agreement,
certificate, document or instrument, in each case that would be
effective prior to the Completion Date or would be effective if the
Completion does not occur (except (x) to the extent required by
Section 7.8(b), applicable Company Supplemental Indentures, (y)
customary officers' certificates relating to the execution thereof
that would not conflict with applicable Law and would be accurate
in light of the facts and circumstances at the time delivered and
(z) the authorization letter and management representation letters
delivered pursuant to clause (i)(D) above), (iii) provide access to
or disclose information that the Company or any of its Subsidiaries
reasonably determines would result in a loss of any attorney-client
privilege of the Company or any of its Subsidiaries
(provided that the Company shall, and shall cause its
Subsidiaries to, use their respective reasonable best efforts to
cause any such information to be disclosed in a manner that would
not result in the loss of any such privilege), (iv) deliver or
cause its Representatives to deliver any legal opinions, (v) be an
issuer or other obligor with respect to the Financing prior to the
Completion, (vi) commence any Company Note Offers and Consent
Solicitations that are not conditional on Completion occurring or
(vii) prepare any financial statements information (other than the
Financing Information) that are not available to it and prepared in
the ordinary course of its financial reporting practice, (B) none
of the Company Board, officers of the Company, or directors and
officers of the Subsidiaries of the Company shall be required to
adopt resolutions or consents approving the agreements, documents
or instruments pursuant to which the Financing is obtained or the
Company Note Offers and Consent Solicitations is consummated, and
(C) neither the Company nor any of its Subsidiaries shall be
required to take or permit the taking of any action that would (i)
interfere unreasonably with the business or operations of the
Company or its Subsidiaries, (ii) cause any representation or
warranty in this Agreement to be breached by the Company or any of
its Subsidiaries (unless waived by Parent), (iii) cause any
director, officer or employee or shareholder of the Company or any
of its Subsidiaries to incur any personal liability or (iv) result
in a material violation or breach of, or a default under, any
material Contract to which the Company or any of its Subsidiaries
is a party, the Organizational Documents of the Company or its
Subsidiaries or any material applicable Law. Parent shall cause all
non-public or other confidential information provided by or on
behalf of the Company or any of its Subsidiaries or Representatives
pursuant to this Section 7.8 to be kept confidential in accordance
with the Confidentiality Agreement; provided that the
Company acknowledges and agrees that the confidentiality
undertakings that will be obtained in connection with syndication
of the Financing will be in a form customary for use in the
syndication of acquisition-related debt during a takeover offer
period in compliance with the requirements of the Irish Takeover
Panel and the Takeover Rules.
(b) Cooperation as to Certain Indebtedness. If requested
by Parent, the Company shall use its reasonable best efforts to
assist Parent or one or more of its Subsidiaries in (i) commencing
any of the following (as requested by Parent): (A) one or more
offers to purchase any or all of the outstanding debt issued under
the Indenture for cash (the "Offers to Purchase"); or
(B) one or more offers to exchange any or all of the outstanding
debt issued under the Indenture for securities issued by Parent or
any of its Affiliates (the "Offers to Exchange"); and
(ii) soliciting the consent of the holders of debt issued under the
Indenture regarding certain proposed amendments to the Indenture
(the "Consent Solicitations" and, together with the
Offers to Purchase and Offers to Exchange, if any, the
"Company Note Offers and Consent Solicitations");
provided that the closing (or effectiveness) of any such
transaction shall not be consummated until the Completion and any
such transaction shall be funded using consideration provided by
Parent. Company Note Offers and Consent Solicitations shall be made
on such terms and conditions (including price to be paid and
conditionality) as are proposed by Parent and which are permitted
by the terms of the Indenture and applicable Laws, including SEC
rules and regulations. Parent shall consult with the Company
regarding the material terms and conditions of any Company Note
Offers and Consent Solicitations, including the timing and
commencement of any Company Note Offers and Consent Solicitations
and any tender deadlines. Parent shall have provided the Company
with the necessary offer to purchase, offer to exchange, consent
solicitation statement, letter of transmittal, press release, if
any, in connection therewith, and each other document relevant to
the transaction that will be distributed by Parent in the
applicable Company Note Offers and Consent Solicitations
(collectively, the "Debt Offer Documents") a
reasonable period of time in advance of commencing the applicable
the Company Note Offers and Consent Solicitations to allow the
Company and its counsel to review and comment on such Debt Offer
Documents, and Parent shall give reasonable and good faith
consideration to any comments made or input provided by the Company
and its legal counsel. Subject to the receipt of the requisite
holder consents, in connection with any or all of the Consent
Solicitations, the Company shall execute a supplemental indenture
to the Indenture in accordance with the terms thereof amending the
terms and provisions of the Indenture as described in the
applicable Debt Offer Documents in a form as reasonably requested
by Parent (the "Company Supplemental Indenture");
provided that the amendments effected by such supplemental
indenture shall not become operative until the Completion. Subject
to the second paragraph of Section 7.8(a) above, until the earlier
of the Completion and the termination of this Agreement pursuant to
and in accordance with Section 9, the Company shall use its
reasonable best efforts, and shall cause each of its Subsidiaries
to use its reasonable best efforts, and shall use its reasonable
best efforts to cause its and their respective Representatives to
use their reasonable best efforts, to provide all reasonable and
customary cooperation as may be reasonably requested by Parent in
writing to assist Parent in connection with any Company Note Offers
and Consent Solicitations (including upon Parent's written request,
using reasonable best efforts to cause the Company's independent
accountants to provide customary consents for use of their reports
to the extent required in connection with any Company Note Offers
and Consent Solicitations). The dealer manager, solicitation agent,
information agent, depositary or other agent retained in connection
with any Company Note Offers and Consent Solicitations will be
selected and retained by Parent, and their fees and out-of-pocket
expenses will be paid directly by Parent. If, at any time prior to
the completion of the Company Note Offers and Consent
Solicitations, the Company or any of its Subsidiaries, on the one
hand, or Parent or any of its Subsidiaries, on the other hand,
discovers any information that should be set forth in an amendment
or supplement to the Debt Offer Documents, so that the Debt Offer
Documents shall not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of
circumstances under which they are made, not misleading, such party
that discovers such information shall use reasonable best efforts
to promptly notify the other Party, and an appropriate amendment or
supplement prepared by Parent describing such information shall be
disseminated to the holders of the applicable notes, debentures or
other debt securities of the Company or its Subsidiaries
outstanding under the Indenture. The consummation of any or all of
the Company Note Offers and Consent Solicitations shall not be a
condition to Completion.
(c) Parent shall, promptly upon request by the Company,
reimburse the Company for all reasonable and documented third-party
out-of-pocket costs and expenses (including attorneys' fees)
incurred by the Company or its Subsidiaries in connection with the
cooperation, and shall indemnify and hold harmless the Company, its
Subsidiaries and their respective Representatives from and against
any and all liabilities, losses, damages, claims, expenses
(including attorneys' fees), interest, judgments and penalties
suffered or incurred by them, in connection with this Section 7.8
(other than to the extent resulting from (x) information provided
by the Company or its Subsidiaries in writing in accordance with
the terms hereof to the extent such information, as provided, is
inaccurate or misleading or (y) the Company's or its Subsidiaries'
or Representatives' willful misconduct or gross negligence, as
determined by a final non-appealable judgment of a court of
competent jurisdiction), in each case whether or not the Completion
is consummated or this Agreement is terminated.
7.9 Treatment of Certain Existing Indebtedness.
(a) The Company shall, not later than 11:00 a.m. New York City time three Business Days
prior to the expected Completion Date and otherwise accordance with
the terms of the Company Credit Agreement and on a date determined
by the Company in consultation with Parent, execute and deliver to
the Administrative Agent (as defined in the Company Credit
Agreement) the requisite prepayment notices to repay, in full, all
loans outstanding under the Company Credit Agreement, contingent
upon consummation of the Acquisition. The Company shall prepare
such prepayment notice in accordance with the terms of the Company
Credit Agreement. The Company will deliver a copy of such notice to
Parent promptly after giving such notices to the Administrative
Agent. The Company and its Subsidiaries shall use its reasonable
best efforts to cooperate with any back-stop, "roll-over" or
termination of any existing letters of credit under the Company
Credit Agreement or otherwise, shall take all actions reasonably
requested by Parent to cause the release and discharge of all
related Liens and security interests under the Company Credit
Agreement, and shall take such other actions as Parent may
reasonably request in connection with such repayment, redemption or
prepayment (including providing to Parent at least three Business
Days prior to Completion a draft payoff letter or other similar
evidence of termination or discharge in respect of the Company
Credit Agreement or any other applicable Company Indebtedness in
form and substance customary for transactions of this type in
substantially final form, taking into account any final per diem
and out of pocket expense calculations that are to be finalized
once the Completion Date is determined). The Company shall deliver
to Parent executed payoff letters on the Completion Date.
(b) Prior to the expected Completion Date, the Company shall use
reasonable best efforts to cooperate with Parent, if Parent shall
so request, to effect a redemption of the Company Notes in
accordance with their terms (the "Redemption");
provided that the consummation of any such Redemption shall
be conditional upon the Completion. Such cooperation by the Company
shall include: (i) delivery of a notice of redemption, in form
reasonably satisfactory to Parent, to the trustee with respect to
the Company Notes, which such notice shall direct such trustee to
deliver the notice of conditional redemption to the applicable
holders with respect to the Company Notes, in each case, in
accordance with the Indenture, (ii) concurrently with the deposit
by Parent with the paying agent under the Company Notes of an
amount sufficient to satisfy and discharge the Company Notes,
delivery of a notice of satisfaction and discharge, in form
reasonably satisfactory to Parent, to the trustee with respect to
the Company Notes, and (iii) use of its best efforts to take all
other actions necessary to facilitate the Redemption, other than
depositing with the applicable paying agent under the applicable
Indenture the amounts sufficient to pay off, redeem, satisfy,
discharge and/or defease the Company Notes.
7.10 Transaction Litigation. Subject to the last
sentence of this Section 7.10, the Company shall promptly notify
Parent of any stockholder Legal Proceedings (including derivative
claims) commenced against it, its Subsidiaries or its or its
Subsidiaries' respective directors or officers relating to this
Agreement or any of the Transactions (collectively,
"Transaction Litigation") and shall keep Parent
informed regarding any Transaction Litigation. The Company shall
reasonably cooperate with Parent in the defense or settlement of
any Transaction Litigation, and shall give Parent the opportunity
to consult with it regarding the defense and settlement of such
Transaction Litigation and shall consider in good faith Parent's
advice with respect to such Transaction Litigation, and the Company
shall give Parent the opportunity to participate in (but not
control), at Parent's expense, the defense and settlement of such
Transaction Litigation. Prior to the Effective Time, neither the
Company nor any of its Subsidiaries shall settle or offer to settle
any Transaction Litigation without the prior written consent of
Parent (which consent shall not be unreasonably withheld,
conditioned or delayed). Notwithstanding anything to the contrary
in this Section 7.10, in the event of any conflict with any other
covenant or agreement contained in Section 7.2 that expressly
addresses the subject matter of this Section 7.10, Section 7.2
shall govern and control.
7.11 State Takeover Statutes. Each of Parent and
the Company shall (a) take all action necessary so that no
"moratorium," "control share acquisition," "fair price,"
"supermajority," "affiliate transaction" or "business combination"
statute or regulation or other similar state anti- takeover Law, or
any similar provision of the Organizational Documents of the
Company or the Organizational Documents of Parent, as applicable,
is or becomes applicable to the Scheme, the Acquisition or any of
the other Transactions, and (b) if any such Law or provision is or
becomes applicable to the Scheme, the Acquisition or any other
Transactions, cooperate and grant such approvals and take such
actions as are reasonably necessary so that the Transactions may be
consummated as promptly as practicable on the terms contemplated
hereby and otherwise act to eliminate or minimize the effects of
such Law on the Scheme, the Acquisition or the other
Transactions.
7.12 Acquirer Sub. Until the Effective Time,
Parent shall at all times be the direct or indirect owner of all of
the outstanding shares of capital stock of Acquirer Sub. Parent
shall take all action necessary to cause Acquirer Sub to perform
its obligations under this Agreement and to consummate the
Acquisition on the terms and subject to the conditions set out in
this Agreement.
7.13 Tax Matters. Parent may, in its sole
discretion, cause a timely and irrevocable election under Section
338(g) of the Code (and any corresponding provisions of state or
local Tax law) to be made with respect to the Company and any or
all of its Subsidiaries that is not a U.S. corporation.
7.14 Stock Exchange Delisting; Deregistration.
Prior to the Completion Date, the Company shall cooperate with
Parent and use its reasonable best efforts to take, or cause to be
taken, all actions, and do or cause to be done all things,
reasonably necessary, proper or advisable on its part under
applicable Laws and rules and policies of Nasdaq to enable the
delisting of the Company Shares from Nasdaq and the deregistration
of the Company Shares under the Exchange Act as promptly as
practicable after the Effective Time, and in any event no more than
ten days after the Completion Date.
7.15 Filing of Form S-8; Listing of Additional
Shares. Parent agrees to file no later than the Completion Date
a registration statement on Form S-8 (or any successor or other
appropriate form) with respect to the Parent Common Stock issuable
with respect to the Parent RSUs and shall use reasonable best
efforts to: (i) maintain the effectiveness of such registration
statement or registration statements (and maintain the current
status of the prospectus or prospectuses contained therein) for so
long as the Parent RSUs assumed in accordance with this Agreement
remain outstanding and (ii) take any action required to be taken by
it under any applicable state securities laws in connection with
the conversion of the RSU Awards into Parent RSUs. Parent shall
take all action necessary to cause the Parent Common Stock to be
issuable upon the vesting and settlement of the Parent RSUs, to be
authorized for listing on Nasdaq.
SECTION 8. COMPLETION OF ACQUISITION AND
MERGER
8.1 Completion.
(a) Completion Date. Completion shall take place remotely
at 9:00 a.m., New York City time, on
a date to be selected by Parent in consultation with the Company as
promptly as reasonably practicable following, but not later than
the third Business Day (or such shorter period of time as remains
before 5:00 p.m., New York City time,
on the End Date) after, the satisfaction or, in the sole discretion
of the applicable Party, waiver (where applicable) of all of the
Conditions ("Completion Date") (other than those
Conditions that by their nature are to be satisfied at the
Completion Date, but subject to the satisfaction or waiver of such
Conditions at the Completion Date).
(b) On or prior to Completion:
(i) the Company shall cause a meeting of the Company Board (or a
duly authorized committee thereof) to be held at which resolutions
are passed (conditional only on delivery of the Court Order to the
Registrar of Companies occurring and effective as of the Effective
Time) approving:
(A) the removal of the directors of the Company as Parent shall
determine;
(B) the appointment of such persons as Parent may nominate as
the directors of the Company; and
(C) the registration of the transfer to Acquirer Sub (and/or its
nominee(s)) in accordance with the Scheme of the relevant Company
Shares.
(ii) the Company shall deliver to Parent:
(A) a certified copy of the resolutions referred to in Section
8.1(b)(i); and
(B) letters of resignation from the directors who are removed
from the Company in accordance with Section 8.1(b)(i)(A).
(c) On or substantially concurrently with the Completion and
subject to and in accordance with the terms and conditions of the
Scheme, the Company shall cause a copy of the Court Order to be
delivered to the Companies Registration Office and shall cause a
copy to be provided to Parent as soon as practicable following the
Company's receipt thereof:
(i) in respect of each Company Share subject to the Scheme,
subject to Section 8.2(a), Parent shall pay, or caused to be paid,
in respect of each holder of Company Shares at the Scheme Record
Time, the Consideration to the applicable Company Shareholder or
its nominees (who are intended to be third party beneficiaries of
this Section 8.1(c) and Section 8.2(a)).
8.2 Payment of Consideration.
(a) Payment. Within 14 days following the Effective Date,
in respect of each Company Share subject to the Scheme, Parent
shall pay, or cause to be paid, in respect of each holder of
Company Shares at the Scheme Record Time, the Consideration in
accordance with the terms and conditions of the Scheme.
(b) Payroll. As soon as reasonably practicable after the
Completion (but no later than 10 Business Days after the Effective
Time), Parent shall, or shall cause the Acquirer Sub or the Company
to, pay through the Company's payroll the aggregate Option
Consideration, RSU Cash Consideration and PSU Consideration payable
with respect to Company Options or other Company Equity Awards held
by current or former employees of any member of the Company Group
(net of any withholding Taxes required to be deducted and withheld
by applicable Laws); provided, however, that,
notwithstanding the foregoing, with respect to any Company RSU
Awards and Company PSU Awards that constitute nonqualified deferred
compensation subject to Section 409A of the Code and that are not
permitted to be paid at the Effective Time without triggering a Tax
or penalty under Section 409A of the Code, payment shall be made at
the earliest time permitted under the applicable Company Share Plan
and award agreement that will not trigger a Tax or penalty under
Section 409A of the Code; provided, further, that to the
extent the holder of a Company Option, or other Company Equity
Award is not, and was not at any time during the vesting period of
the Company Option or other Company Equity Award, an employee of
the Company or any other member of the Company Group for employment
tax purposes, Parent shall pay, or cause to be paid, the Option
Consideration, RSU Cash Consideration or PSU Consideration payable
pursuant to Section 4.1 with respect to such Company Option or
other Company Equity Award in the manner described in Section
8.2(a).
8.3 Withholding. Notwithstanding anything herein
to the contrary, Parent, the Company and their respective
Affiliates shall be entitled to deduct and withhold from any amount
payable pursuant to this Agreement to any Person who was a holder
of a Company Share subject to the Scheme such amounts as Parent,
the Company or such Affiliate is required to deduct and withhold
with respect to the making of such payment under the Code or any
other provision of federal, state, local or non-U.S. Tax law. To
the extent that amounts are so withheld and timely paid over to the
appropriate Tax Authority, such withheld amounts shall be treated
for all purposes of this Agreement as having been paid to the
Person to whom such consideration would otherwise have been
paid.
SECTION 9. TERMINATION
9.1 Termination.
(a) This Agreement may be terminated and the Acquisition and the
other Transactions may be abandoned at any time prior to the
Effective Time, notwithstanding receipt of the Company Shareholder
Approval (except in the case of Section 9.1(a)(iii)(B)):
(i) by either the Company or Parent:
(A) if the Acquisition is implemented by way of the Scheme,
Scheme Meeting or the EGM shall have been completed and the Scheme
Meeting Resolution or the Required EGM Resolutions, as applicable,
shall not have been approved by the requisite majorities (an
"Non Approval Termination"); or
(B) if the Effective Time shall not have occurred by
5:00 p.m., New York City time, on the
End Date, provided that the right to terminate this
Agreement pursuant to this Section 9.1(a)(i)(B) shall not be
available to a Party whose breach of any provision of this
Agreement shall have been the primary cause of the failure of the
Effective Time to have occurred by such time (an "End Date
Termination"); or
(C) if the Acquisition is implemented by way of the Scheme, the
Irish High Court shall decline or refuse to sanction the Scheme,
unless both Parties agree in writing that the decision of the Irish
High Court shall be appealed (it being agreed that the Company
shall make such an appeal if requested to do so in writing by
Parent and the counsel appointed by Parent and by the Company agree
that doing so is a reasonable course of action); or
(D) if there shall be in effect any Law or final and
non-appealable Order (other than under any Antitrust Laws or
Foreign Investment Laws of any jursidiction that is not (A) a
Required Non-U.S. Jurisdiction or (B) under the HSR Act) issued,
promulgated, made, rendered or entered into by any court or other
tribunal of competent jurisdiction, that permanently restrains,
enjoins or otherwise prohibits the consummation of the Acquisition;
provided that the right to terminate this Agreement pursuant
to this Section 9.1(a)(i)(D) shall not be available to any Party
whose breach of any provision of this Agreement shall have been the
primary cause of such Law, order, writ, decree, judgment, or
injunction (a "Restraining Order Termination");
(ii) by the Company:
(A) if any Parent Party shall have breached or failed to perform
in any material respect any of its covenants or other agreements
contained in this Agreement or if any of its representations or
warranties set out in this Agreement are inaccurate, which breach,
failure to perform or inaccuracy (1) would result in a failure of
the Condition set forth paragraph 5.1 or paragraph 5.2 and (2) is
not reasonably capable of being cured by the End Date or, if
curable, is not cured by the earlier of (x) the End Date and (y) 45
days following written notice by the Company thereof (a
"Parent Breach Termination"); or
(B) prior to obtaining the Company Shareholder Approval, if (1)
in accordance with Section 5.2, the Company Board shall have
authorized the Company to terminate this Agreement under this
Section 9.1(a)(ii)(B) in response to a Company Superior Proposal
and (2) substantially concurrently with such termination, a Company
Change of Recommendation shall have occurred and a definitive
agreement providing for the consummation of such Company Superior
Proposal is duly executed and delivered by all parties thereto and,
the Company pays Parent the Reimbursement Payments (the
"Superior Proposal Termination");
(iii) by Parent:
(A) if the Company shall have breached or failed to perform in
any material respect any of its covenants or other agreements
contained in this Agreement or if any of its representations or
warranties set out in this Agreement are inaccurate, which breach,
failure to perform or inaccuracy (1) would result in a failure of
the Condition set out in paragraph 4.2 or paragraph 4.3 and (2) is
not reasonably capable of being cured by the End Date or, if
curable, is not cured by the earlier of (x) the End Date and (y) 45
days following written notice by Parent thereof (a "Company
Breach Termination"); or
(B) if, prior to the receipt of the Company Shareholder
Approval, (x) a Company Change of Recommendation shall have
occurred, (y) the Company Board shall fail to reaffirm the Scheme
Recommendation in a statement complying with Rule 14e- 2(a) under
the Exchange Act with regard to a Company Alternative Proposal or
in connection with such action by the close of business on the 10th
Business Day after the commencement of such Company Alternative
Proposal under Rule 14e-2(a) (the foregoing a "Change of
Recommendation Termination") or (z) the Company has
materially breached its obligations under Section 5.2 that cannot
be cured; or
(iv) by mutual written consent of the Company and Parent.
(b) The termination of this Agreement pursuant to and in
accordance with Section 9.1(a) shall not give rise to any liability
of the Parties except as provided in this Section 9.1(b) and in
Section 7.8(c), Section 9.1(c), Section 9.2 and Section 10 of this
Agreement shall survive, and continue in full force and effect,
notwithstanding its termination.
(c) Subject to the proviso in this Section 9.1(c), upon the
termination of this Agreement pursuant to and in accordance with
this Section 9, no Party (or any partner, member, manager,
stockholder, director, officer, employee, Affiliate, agent or other
representative of such Party) shall have any liability in
connection with this Agreement or the Transaction, other than the
obligation of the Company (if applicable) to reimburse Parent for
the Reimbursement Amount, subject to the Cap and the obligation of
Parent (if applicable) to pay the Company (or an entity designated
by the Company) the Reverse Termination Payment; provided,
however, that nothing herein shall release any Party from
liability (including any monetary damages or other appropriate
remedy) for Willful Breach.
9.2 Certain Effects of Termination.
(a) In the event of a Parent Payment Event, the Company shall
reimburse Parent for the Reimbursement Amount, subject to the Cap
(the "Reimbursement Payment"), in immediately
available funds within seven Business Days following the Company's
receipt of invoices or written documentation supporting Parent's
request for a Reimbursement Payment. The Reimbursement Amount will
be exclusive of any VAT incurred by Parent or its Subsidiaries
attributable to third party costs other than Irrecoverable VAT
incurred by Parent or its Subsidiaries. In the event of a Specified
Termination, then Parent shall pay to the Company (or an entity
designated by the Company) $974,415,054 (the "Reverse Termination
Payment") in immediately available funds within seven
Business Days thereafter; provided that the Company shall
not be entitled to receive the Reverse Termination Payment if the
Company's breach of this Agreement shall have been the primary
cause of such Specified Termination.
(b) The "Parent Payment Events" means where the
Parties have issued the Rule 2.7 Announcement and this Agreement is
terminated in accordance with Section 9.1(a):
(i) by Parent pursuant to a Change of Recommendation
Termination;
(ii) by the Company pursuant to a Superior Proposal Termination;
or
(iii) all of the following occur:
(A) this Agreement is terminated (x) by Parent pursuant to a
Company Breach Termination as a result of a material breach or
failure to perform any covenant or agreement in this Agreement
described in Section 9.1(a)(iii)(A) that first occurred following
the making of a Company Alternative Proposal of the type referenced
in the following clause (B), (y) by Parent or the Company pursuant
to a Non Approval Termination but if such termination is by the
Company at such time Parent would be permitted to terminate this
Agreement; and
(B) prior to the Scheme Meeting, a Company Alternative Proposal
was publicly disclosed or announced and not withdrawn (or, in the
case of a Company Breach Termination as a result of a material
breach or failure to perform any covenant or agreement in this
Agreement, was made publicly or privately to the Company Board), or
any Person shall have publicly announced an intention (whether or
not conditional) to make a Company Alternative Proposal that has
not been withdrawn (it being understood that, for purposes of this
Section 9.2(b)(iii)(B) references to "20%" in the definition
of Company Alternative Proposal shall be deemed to refer to
"50%"); and
(C) (x) a Company Alternative Proposal is consummated within 12
months after such termination, or (y) a definitive agreement
providing for a Company Alternative Proposal is entered into within
12 months after such termination and is subsequently
consummated.
(c) The "Specified Termination" means a valid
termination of this Agreement:
(i) by Parent or the Company pursuant to an End Date
Termination, if, on the date of such termination, each of the
Conditions has been satisfied or, to the extent permitted by
applicable Laws, waived, (other than (X) paragraphs 3.1, 3.2 or 3.3
of the Conditions (only as a result of an Order or injunction under
(1) the HSR Act or (2) any other Antitrust Law or Foreign
Investment Laws in any Required Non-U.S. Jurisdiction), or (Y)
paragraphs 2.3 and 2.4 of the Conditions or (Z) any Condition that
by its nature can only be satisfied on the Sanction Date or, in the
alternative to (Y) and (Z) where the Acquisition is implemented by
Takeover Offer, any other condition that by its nature can only be
satisfied by no later than the latest date upon which the Takeover
Offer may be declared unconditional in all respects);
(ii) by Parent or the Company pursuant to a Restraining Order
Termination pursuant to or in connection with (1) the HSR Act or
(2) any other Antitrust Law or Foreign Investment Laws in any
Required Non-U.S. Jurisdiction; or
(iii) by the Company pursuant to a Parent Breach Termination
with respect to Section 7.2 in connection with (1) the HSR Act or
(2) any other Antitrust Law or Foreign Investment Laws in any
Required Non-U.S. Jurisdiction.
(d) Single Payment Only. The Parties acknowledge and
agree that in no event will Parent or the Company be required to
pay, as applicable, the Reverse Termination Payment or the
Reimbursement Payment on more than one occasion, whether or not the
Reverse Termination Payment or the Reimbursement Payment may be
payable pursuant to more than one provision of this Agreement at
the same or at different times and upon the occurrence of different
events.
(e) VAT.
(i) VAT on the Reimbursement Payment. Parent and the
Company consider that any amounts payable under this Section 9 do
not represent consideration for a taxable supply for VAT purposes
and agree to use all reasonable efforts to secure that any
Reimbursement Payment should not represent consideration for a
taxable supply for VAT purposes (including not taking any contrary
position in any Tax filing or return or in any correspondence with
any Tax Authority). If and to the extent that any relevant Tax
Authority determines that any Reimbursement Payment is
consideration for a taxable supply and that the Company (or any
member of a VAT Group of which the Company is a member) is liable
to account to a Tax Authority for VAT in respect of such supply and
such VAT is Irrecoverable VAT:
(A) the sum of the total amount payable by the Company by way of
any Reimbursement Payment, together with any Irrecoverable VAT
arising in respect of the supply for which the Reimbursement
Payment is consideration ("Company Irrecoverable
VAT"), shall not exceed the Cap and the total amount of the
Reimbursement Payment shall be reduced to ensure such;
(B) to the extent that the Company has already paid amounts in
respect of any Reimbursement Payment the sum of which, when
combined with any Company Irrecoverable VAT, exceeds the Cap,
Parent shall repay to Company, by way of a reduction in the amount
of the Reimbursement Payment, an amount necessary to ensure that
the sum of the total remaining Reimbursement Payment combined with
any Company Irrecoverable VAT arising in connection with such does
not exceed the Cap; and
(C) the Company shall (and shall procure that any applicable
member of the Company Group shall) accommodate any reasonable
action that Parent requests, in writing and without delay, to
avoid, dispute, defend, resist, appeal or compromise any
determination of a Tax Authority that any Reimbursement Payment is
consideration for a taxable supply for VAT purposes and/or that
Company or any member of a VAT Group of which the Company is a
member is liable to account to the relevant Tax Authority for VAT
in respect of such supply and/or that all or any part of such VAT
is Irrecoverable VAT.
(ii) VAT on the Reverse Termination Payment. Parent and
the Company consider that any amounts payable under this Section 9
do not represent consideration for a taxable supply for VAT
purposes and agree to use all reasonable efforts to secure that any
Reverse Termination Payment should not represent consideration for
a taxable supply for VAT purposes (including not taking any
contrary position in any Tax filing or return or in any
correspondence with any Tax Authority). If and to the extent that
any relevant Tax Authority determines that any Reverse Termination
Payment is consideration for a taxable supply and that the Company
or an entity designated by the Company (or any member of a VAT
Group of which the Company or an entity designated by the Company
is a member) is liable to account to a Tax Authority for VAT in
respect of such supply, Parent shall pay, in addition to the
Reverse Termination Payment, an amount equal to such VAT to the
Company or an entity designated by the Company (or any member of a
VAT Group of which the Company or an entity designated by the
Company is a member) immediately upon receipt of a valid VAT
invoice.
(f) Recovered VAT. If the Reimbursement Payment is
reduced in accordance with Section 9.2(e)(i)(A) and / or (B) and
the Company (or any member of a VAT Group of which the Company is a
member) subsequently becomes entitled to recover all, or any part,
of the Company Irrecoverable VAT amount as originally applied to
the calculation in accordance with Section 9.2(e)(i)(A) and / or
(B) whether by way of credit or refund from the relevant Tax
Authority, the Company shall notify Parent without delay and the
Reimbursement Payment shall be increased to reflect the correct
amount of Company Irrecoverable VAT subject to a maximum of the
original Reimbursement Payment. However, the increase of the
Reimbursement Payment shall be subject to a maximum to ensure at
all times that the sum of the total increased Reimbursement Payment
combined with any remaining Company Irrecoverable VAT arising in
connection with such does not exceed the Cap. Where there is an
increase in the Reimbursement Payment in accordance with this
Section 9.2(f), as soon as practicable (and, in any event, within
five (5) Business Days of recovering whether by way of credit or
refund any such VAT from the relevant Tax Authority), the Company
(or the relevant member of a VAT Group of which the Company is a
member) shall pay to Parent the appropriate amount by way of an
increase in the Reimbursement Payment.
(g) Outside the European Union. Parent confirms that it
is established outside of the European Union for VAT purposes and
is a taxable person for VAT purposes within the meaning of
applicable VAT Laws.
(h) Sole and Exclusive Remedy.
(i) If this Agreement is terminated pursuant to Section 9.1,
Parent's receipt of the Reimbursement Payment and any other amount
to the extent owed pursuant to Section 9.2 and Parent's right to
seek specific performance pursuant to Section 10.7 will be the sole
and exclusive remedies of (x) Parent and Acquirer Sub and (y) the
former, current and future holders of any equity, controlling
persons, directors, officers, employees, agents, attorneys,
Affiliates (other than Parent or Acquirer Sub), members, managers,
general or limited partners, stockholders and assignees of each of
Parent and Acquirer Sub (the Persons in clauses (x) and (y)
collectively, the "Parent Related Parties") against
any of (A) the Company and its Affiliates; and (B) the former,
current and future holders of any equity, controlling persons,
directors, officers, employees, agents, attorneys, Affiliates,
members, managers, general or limited partners, stockholders and
assignees of each of the Company and its Affiliates (the Persons in
clauses (A) and (B) collectively, the "Company Related
Parties") in respect of this Agreement, the Transactions,
any agreement executed in connection herewith and the transactions
contemplated hereby and thereby, the termination of this Agreement,
the failure to consummate the Transactions or any claims or actions
under applicable Laws arising out of any breach, termination or
failure. Parent's receipt (or the receipt by such other Person as
Parent may designate) of the Reimbursement Payment and any other
amount to the extent owed pursuant to Section 9.2 will be the only
monetary damages the Parent Related Parties may recover from
Company Related Parties in respect of this Agreement, any agreement
executed in connection herewith and the transactions contemplated
hereby and thereby, the termination of this Agreement, the failure
to consummate the Transactions or any claims or actions under
applicable Laws arising out of any such breach, termination or
failure, and upon payment of such amount, (A) none of the Company
Related Parties will have any further liability or obligation to
any of the Parent Related Parties relating to or arising out of
this Agreement, any agreement executed in connection herewith or
the transactions contemplated hereby and thereby or any matters
forming the basis of such termination (except that the Parties (or
their respective Affiliates) will remain obligated with respect to,
and Parent may be entitled to remedies with respect to, the
Confidentiality Agreement and Section 9.1(c), as applicable); and
(B) none of Parent, Acquirer Sub or any other Person will be
entitled to bring or maintain any Law against any Company Related
Party arising out of this Agreement, the Transactions, any
agreement executed in connection herewith or the transactions
contemplated hereby and thereby or any matters forming the basis
for such termination. Notwithstanding the foregoing, this Section
9.2(h)(i) will not relieve the Company from liability (I) for any
Willful Breach of this Agreement or (II) for any breaches of the
Confidentiality Agreement.
(ii) If this Agreement is terminated pursuant to Section 9.1,
the Company's receipt of the Reverse Termination Payment and any
other amount to the extent owed pursuant to Section 9.2 and the
Company's right to seek specific performance pursuant to Section
10.7 will be the sole and exclusive remedies of the Company Related
Parties against any of Parent Related Parties in respect of this
Agreement, the Transactions, any agreement executed in connection
herewith and the transactions contemplated hereby and thereby, the
termination of this Agreement, the failure to consummate the
Transactions or any claims or actions under applicable Laws arising
out of any breach, termination or failure. The Company's receipt
(or the receipt by such other Person as the Company may designate)
of the Reverse Termination Payment and any other amount to the
extent owed pursuant to Section 9.2 will be the only monetary
damages the Company Related Parties may recover from Parent Related
Parties in respect of this Agreement, any agreement executed in
connection herewith and the transactions contemplated hereby and
thereby, the termination of this Agreement, the failure to
consummate the Transactions or any claims or actions under
applicable Laws arising out of any such breach, termination or
failure, and upon payment of such amount, (A) none of the Parent
Related Parties will have any further liability or obligation to
any of the Company Related Parties relating to or arising out of
this Agreement, any agreement executed in connection herewith or
the transactions contemplated hereby and thereby or any matters
forming the basis of such termination (except that the Parties (or
their respective Affiliates) will remain obligated with respect to,
and the Company may be entitled to remedies with respect to, the
Confidentiality Agreement and Section 9.1(c), as applicable); and
(B) none of the Company or any other Person will be entitled to
bring or maintain any Law against any Parent Related Party arising
out of this Agreement, the Transactions, any agreement executed in
connection herewith or the transactions contemplated hereby and
thereby or any matters forming the basis for such termination.
Notwithstanding the foregoing, this Section 9.2 will not relieve
Parent from liability (I) for any Willful Breach of this Agreement
or (II) for any breaches of the Confidentiality Agreement.
(iii) Each of the Parties acknowledges that any amount payable
by the Company pursuant to this Section 9.2, including the
Reimbursement Payment, does not constitute a penalty, but rather
shall constitute liquidated damages in a reasonable amount that
will compensate Parent Parties for the disposition of its rights
under this Agreement in the circumstances in which such amounts are
due and payable, which amounts would otherwise be impossible to
calculate with precision.
(iv) Each of the Parties acknowledges that any amount payable by
Parent pursuant to this Section 9.2, including the Reverse
Termination Payment, does not constitute a penalty, but rather
shall constitute liquidated damages in a reasonable amount that
will compensate the Company and the entities designated by the
Company for the operational impact of entering this Agreement and
all related consequences on ongoing business activities in the
event of a Specified Termination, which amounts would otherwise be
impossible to calculate with precision.
(v) Any amount payable to the Company or its designee, or to
Parent or its designee, as applicable, pursuant to this Section 9.2
shall be paid in such amounts and to such Persons as the Company or
Parent, as applicable, shall designate within seven Business Days
of the Specified Termination.
SECTION 10. GENERAL
10.1 Announcements. Subject to the requirements of
applicable Laws or the applicable rules of any securities exchange
or Governmental Entity (including the Panel), the Parties shall
consult with each other as to the terms of, the timing of and the
manner of publication of any formal public announcement which
either Party may make primarily regarding the Acquisition, the
Scheme or this Agreement. Parent and the Company shall each give
the other a reasonable opportunity to review and comment upon any
such public announcement and shall not issue any such public
announcement prior to such consultation, except as may be required
by applicable Laws or the applicable rules of any securities
exchange or Governmental Entity (including the Irish Takeover
Panel). For clarity, the provisions of this Section 10.1 do not
apply to a redemption of the Company Notes, any announcement,
document or publication in connection with a Company Alternative
Proposal, the Company Superior Proposal or a Company Change of
Recommendation or any amendment to the terms of the Scheme proposed
by Parent that would effect an increase in the Consideration
whether before or after a Company Change of Recommendation.
Notwithstanding the foregoing: (a) each Party may, without such
consultation or consent, make any public statement in response to
questions from the press, analysts, investors or those attending
industry conferences, make internal announcements to any officer or
other employee, or individual who is an individual independent
contractor, consultant or director, of or to any of the Company
Group and make disclosures in Company SEC Documents, so long as
such statements are consistent in tone and substance with previous
press releases, public disclosures, public statements or statements
to such Persons made jointly by the Parties (or individually, if
approved by the other Party); and (b) a Party may, without the
prior consent of the other Party hereto but subject to giving
advance notice to the other Party, issue any such press release or
make any such public announcement or statement as may be required
by applicable Laws.
10.2 Notices.
(a) Any notice or other document to be served under this
Agreement may be delivered by overnight delivery service (with
proof of service) or hand delivery, or sent in writing (including
email transmission, the receipt of which is confirmed other than by
out-of-office replies or other automatically generated responses),
to the Party to be served as follows:
(i) if to Parent or Acquirer Sub, to:
Amgen Inc.
One Amgen Center Drive
Thousand Oaks, CA 91320-1799
USA
Attention: Corporate Secretary
Facsimile: (805) 499-6751
with copy to (which in and of itself shall not constitute
notice):
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
USA
Attention: Francis J. Aquila
Email: aquilaf@sullcrom.com
and
William Fry LLP
2 Grand Canal Square
Dublin 2
Ireland
Attention:
Myra Garrett
Mark Talbot
Email:
myra.garrett@williamfry.com
mark.talbot@williamfry.com
(ii) if to the Company, to:
Horizon Therapeutics plc
70 St. Stephen's Green
Dublin 2
D02 E2X4, Ireland
Attn: General Counsel
Email: legal@horizontherapeutics.com
with copy to (which in and of itself shall not constitute
notice):
Cooley LLP
10265 Science Center Drive
San Diego, CA 92121
USA
Attention:
Barbara L. Borden
Rama Padmanabhan
Rowook Park
Email:
bborden@cooley.com
rama@cooley.com
rpark@cooley.com
and
Matheson LLP
70 Sir John Rogerson's Quay
Dublin 2
Ireland
Attention:
David Fitzgibbon
David Jones
Email:
david.fitzgibbon@matheson.com
david.jones@matheson.com
or such other postal or email address as it may have notified to
the other Party in writing in accordance with the provisions of
this Section 10.2.
(b) All such notices, requests and other communications shall be
deemed received on the date of receipt by the recipient thereof if
received prior to 5:00 p.m.
(addressee's local time) on a Business Day. Otherwise, any such
notice, request or communication shall be deemed to have been
received on the next succeeding Business Day.
10.3 Assignment. Neither Party shall assign all or
any part of its rights or obligations under this Agreement without
the prior written consent of the other Party; provided that
Parent, without the Company's consent, may assign any or all of its
rights and obligations hereunder, in whole or from time to time in
part, to one or more of its Subsidiaries and Acquirer Sub, without
the Company's consent, may assign its rights and obligations
hereunder, in whole or from time to time in part, to any other
wholly owned Subsidiary of Parent (provided that the prior
consent in writing has been obtained from the Irish Takeover Panel
in respect of each such assignment), but no such assignment shall
relieve Parent or Acquirer Sub, as applicable, of its obligations
hereunder.
10.4 Counterparts. This Agreement may be executed
in any number of counterparts, all of which, taken together, shall
constitute one and the same agreement, and each Party may enter
into this Agreement by executing a counterpart and delivering it to
the other Party (by hand delivery, e-mail or otherwise).
10.5 Amendment. No amendment of this Agreement
shall be binding unless the same shall be evidenced in writing duly
executed by each of the Parties, except that, following approval by
the Company Shareholders, there shall be no amendment to the
provisions hereof which by applicable Laws would require further
approval by the Company Shareholders without such further approval
nor shall there be any amendment or change not permitted under
applicable Laws. Notwithstanding anything to the contrary herein,
this Section 10.5, Sections 10.12(b) and 10.12(c), 10.13 and 10.14
may not be amended, supplemented, waived or otherwise modified in
any manner materially adverse to the Financing Sources without the
prior written consent of such Financing Sources party to any
definitive agreement relating to the Financing (it being expressly
agreed that the Financing Sources in their capacities as such shall
be third party beneficiaries of this Section 10.5 and shall be
entitled to the protections of the provisions contained in this
Section 10.5 as if they were a party to this Agreement).
10.6 Entire Agreement. This Agreement, together
with the Confidentiality Agreement, the Rule 2.7 Announcement and
any documents delivered by Parent and the Company in connection
herewith (including the Company Disclosure Schedule), constitutes
the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between Parent and the
Company with respect to the subject matter hereof, it being
understood that the Confidentiality Agreement shall survive the
execution and delivery of this Agreement.
10.7 Inadequacy of Damages. The Parties
acknowledge and agree that irreparable harm would occur and that
the Parties would not have any adequate remedy at Law (i) for any
breach of any of the provisions of this Agreement or (ii) in the
event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is
accordingly agreed that, except where this Agreement is terminated
in accordance with Section 9.1, the Parties shall be entitled to
seek an injunction or injunctions to prevent breaches or threatened
breaches of this Agreement and to specifically enforce the terms
and provisions of this Agreement, without proof of actual damages,
and each Party further agrees to waive any requirement for the
securing or posting of any bond in connection with such remedy.
Subject to Section 9.1(b), the Parties further agree that (x) by
seeking the remedies provided for in this Section 10.7, a Party
shall not in any respect waive its right to seek any other form of
relief that may be available to a Party under this Agreement and
(y) nothing contained in this Section 10.7 shall require any Party
to institute any proceeding for (or limit any Party's right to
institute any proceeding for) specific performance under this
Section 10.7 before exercising any termination right under Section
9.1 (and pursuing damages after such termination), nor shall the
commencement of any action pursuant to this Section 10.7 or
anything contained in this Section 10.7 restrict or limit any
Party's right to terminate this Agreement in accordance with the
terms of Section 9.1 or pursue any other remedies under this
Agreement that may be available then or thereafter.
10.8 Disclosure Schedule References and SEC Document
References.
(a) The Parties agree that each section or subsection of the
Company Disclosure Schedule, shall be deemed to qualify the
corresponding section or subsection of this Agreement, irrespective
of whether or not any particular section or subsection of this
Agreement specifically refers to the Company Disclosure Schedule.
The Parties further agree that disclosure of any item, matter or
event in any particular section or subsection of either the Company
Disclosure Schedule shall be deemed disclosure with respect to any
other section or subsection of the Company Disclosure Schedule, to
which the relevance of such disclosure would be reasonably apparent
on its face, notwithstanding the omission of a cross-reference to
such other section or subsections.
(b) The Parties agree that in no event shall any cautionary,
predictive or forward-looking statements contained in any part of
any Company SEC Document entitled "Risk Factors," "Forward-Looking
Statements," "Cautionary Statement Regarding Forward-Looking
Statements," "Special Note Regarding Forward Looking Statements" or
"Note Regarding Forward Looking Statements" be deemed to be an
exception to (or a disclosure for purposes of or otherwise qualify)
any representations and warranties of any Party contained in this
Agreement.
(c) Remedies and Waivers. No delay or omission by either
Party in exercising any right, power or remedy provided by Law or
under this Agreement shall affect that right, power or remedy or
operate as a waiver of it. The exercise or partial exercise of any
right, power or remedy provided by Law or under this Agreement
shall not preclude any other or further exercise of it or the
exercise of any other right, power or remedy.
10.9 Severability.
(a) If any term, provision, covenant or condition of this
Agreement or the Acquisition is held by a court of competent
jurisdiction or other Governmental Entity to be invalid, void or
unenforceable, the Parties shall negotiate in good faith to modify
this Agreement or, as appropriate, the terms and conditions of this
Agreement and the Acquisition, so as to effect the original intent
of the Parties as closely as possible in an equitable manner in
order that the Transactions may be consummated as originally
contemplated to the fullest extent possible in accordance with
applicable Laws.
(b) If at any time any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any respect under the Law of
any jurisdiction, that shall not affect or impair (i) the legality,
validity or enforceability in that jurisdiction of any other
provision of this Agreement; or (ii) the legality, validity or
enforceability under the Law of any other jurisdiction of that or
any other provision of this Agreement.
10.10 No Partnership and No Agency.
(a) Nothing in this Agreement and no action taken by the Parties
pursuant to this Agreement shall constitute, or be deemed to
constitute, a partnership, association, joint venture or other
co-operative entity between any of the Parties.
(b) Nothing in this Agreement and no action taken by the Parties
pursuant to this Agreement shall constitute, or be deemed to
constitute, either Party the agent of the other Party for any
purpose. No Party has, pursuant to this Agreement, any authority or
power to bind or to contract in the name of the other Party to this
Agreement.
10.11 Costs and Expenses. Except as otherwise
provided in this Agreement, all costs and expenses incurred in
connection with this Agreement shall be paid by the Party incurring
such cost or expense, except that (a) the Irish Takeover Panel's
document review fees shall be borne by Parent, (b) the costs
associated with the filing, printing, publication and proposing of
the Rule 2.7 Announcement shall be borne by Parent, (c) the costs
associated with the filing, printing, publication and proposing of
the Scheme Document, Proxy Statement and any other materials
required to be proposed to the Company Shareholders pursuant SEC
rules, the Irish Companies Act or the Irish Takeover Rules shall be
borne by the Company, (d) the filing fees incurred in connection
with notifications with any Governmental Entities under any
Antitrust Laws, shall be borne by Parent and (e) the cost incurred
in connection with soliciting proxies in connection with the Scheme
Meeting and the EGM shall be borne by the Company.
10.12 Governing Law and Jurisdiction.
(a) This Agreement and all Legal Proceedings based upon, arising
out of or related to this Agreement or the Transactions shall be
governed by, and construed in accordance with, the Laws of the
State of Delaware; provided, however, that the
Acquisition and the Scheme and matters related thereto (including
matters related to the Takeover Rules) shall, to the extent
required by the Laws of Ireland, and the interpretation of the
duties of directors of the Company shall, be governed by, and
construed in accordance with, the Laws of Ireland.
(b) Each of the Parties irrevocably agrees that the state and
federal courts sitting in the State of Delaware, and any appellate
courts therefrom, are to have exclusive jurisdiction to settle any
Legal Proceeding based upon, arising out of or related to this
Agreement or the Transactions and, for such purposes, irrevocably
submits to the exclusive jurisdiction of such courts and waives, to
the fullest extent permitted by Law, any objection which any of
them may now or hereafter have to the laying of venue of, and the
defense of an inconvenient forum to the maintenance of, any such
Legal Proceeding in any such court. Any Legal Proceeding based
upon, arising out of or related to this Agreement or the
Transactions shall therefore be brought in the state and federal
courts sitting in the State of Delaware, and any appellate courts
therefrom. Notwithstanding the forgoing, the Scheme and matters
related to the sanction thereof shall be subject to the
jurisdiction of the Irish High Court and any appellate courts
therefrom.
(c) Each of the Parties acknowledges and irrevocably agrees (i)
that any Legal Proceeding (whether at Law, in equity, in contract,
in tort or otherwise) arising out of, or in any way relating to,
the Financing or the performance of services thereunder or related
thereto against or by any Financing Source in its capacity as such
shall be subject to the exclusive jurisdiction of any state or
federal court sitting in the Borough of Manhattan, New York, New
York, and any appellate court therefrom, and each Party hereto
submits for itself and its property with respect to any such Legal
Proceeding to the exclusive jurisdiction of such courts, (ii) not
to bring or permit any of its Affiliates to bring or support anyone
else in bringing any such Legal Proceeding in any other court,
(iii) to waive and hereby waive, to the fullest extent permitted by
Law, any objection which any of them may now or hereafter have to
the laying of venue of, and the defense of an inconvenient forum to
the maintenance of, any such Legal Proceeding in any such court,
(iv) that a final judgment in any such Legal Proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by Law and (v) that
any such Legal Proceeding shall be governed by, and construed in
accordance with, the Laws of the State of New York (it being
expressly agreed that the Financing Sources in their capacities as
such shall be third party beneficiaries of this Section 10.12(c)
and shall be entitled to enforce the provisions contained in this
Section 10.12(c) as if they were a party to this Agreement).
(d) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAWS, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY ACTION ARISING OUT OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE FINANCING, OR THE
PERFORMANCE OF SERVICES THEREUNDER OR RELATED THERETO (INCLUDING
ANY ACTION, PROCEEDING OR COUNTERCLAIM), INCLUDING IN ANY ACTION
AGAINST OR BY ANY FINANCING SOURCE IN ITS CAPACITY AS SUCH,
INCLUDING ANY ACTION DESCRIBED IN SECTION 10.12(c)(i) IN ANY SUCH
COURT DESCRIBED IN SECTION 10.12(c)(i) (IT BEING EXPRESSLY AGREED
THAT THE FINANCING SOURCES IN THEIR CAPACITIES AS SUCH SHALL BE
THIRD PARTY BENEFICIARIES OF THIS SECTION 10.12(d) AND SHALL BE
ENTITLED TO ENFORCE THE PROVISIONS CONTAINED IN THIS SECTION
10.12(d) AS IF THEY WERE A PARTY TO THIS AGREEMENT).
10.13 Third Party Beneficiaries. Except to the
extent:
(a) as expressly provided in Section 7.3;
(b) as expressly provided in Section 7.8(b);
(c) as expressly provided in Section 8.1(c);
(d) as expressly provided in Section 10.5;
(e) as expressly provided in Section 10.12(b);
(f) as expressly provided in Section 10.12(c);
(g) as expressly provided in Section 10.12(d); and
(h) as expressly provided in Section 10.14,
this Agreement is not intended to confer upon any Person other
than the Company and the Parent Parties any rights or remedies
under or by reason of this Agreement.
10.14 Waiver of Claims Against Financing Sources.
Without limiting in any respect the liabilities of the Financing
Sources to Parent or its Affiliates, or the remedies of Parent or
its Affiliates against the Financing Sources under any other
agreement to which they are both parties, none of the Financing
Sources shall have any liability to the Parties or their Affiliates
relating to or arising out of this Agreement, whether at Law or
equity, in contract, in tort or otherwise, and neither the Parties
nor any of their Affiliates will have any rights or claims against
the Financing Sources under this Agreement. Notwithstanding
anything herein to the contrary, in no event shall the Company or
its Affiliates be entitled to seek the remedy of specific
performance of this Agreement against any of the Financing Sources
(it being expressly agreed that the Financing Sources in their
capacities as such shall be third party beneficiaries of this
Section 10.14 and shall be entitled to enforce the provisions
contained in this Section 10.14 as if they were a party to this
Agreement).
10.15 Non-Survival of Representations, Warranties,
Covenants and Agreements. The representations, warranties,
covenants and agreements contained in this Agreement and in any
certificate or other writing delivered pursuant hereto shall not
survive the Effective Time or the termination of this Agreement
pursuant to and in accordance with Section 9, except that (i)
Section 7.3 and Section 8 shall survive the Effective Time, and
(ii) Section 7.8(c), Sections 9.1(b)-(c), Section 9.2 and this
Section 10 shall survive the termination of this Agreement pursuant
to and in accordance with Section 9. above.
In Witness Whereof the Parties have entered into this
Agreement on the date specified above.
SIGNED for and
on behalf of
HORIZON THERAPEUTICS PLC by its
authorized signatory:
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Name:
Title:
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In Witness Whereof the Parties have entered into this
Agreement on the date specified above.
SIGNED for and
on behalf of
AMGEN INC. by its authorized signatory:
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Name:
Title:
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In Witness Whereof the Parties have entered into this
Agreement on the date specified above.
SIGNED for and
on behalf of
PILLARTREE LIMITED by its authorized
signatory:
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Name:
Title:
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SOURCE Amgen