8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 2, 2015

SHIRE PLC

(Exact name of registrant as specified in its charter)

Jersey, Channel Islands	0-29630	98-0601486
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

5 Riverwalk, Citywest Business Campus, Dublin

24, Republic of Ireland

(Address of principal executive offices)

Registrant’s telephone number, including area code: +353 1 429 7700

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

oWritten communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

oSoliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

oPre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01Entry into a Material Definitive Agreement

On November 2, 2015, Shire plc, a company incorporated in Jersey (“Shire”), and Shire Pharmaceuticals International (“SPI”), a company incorporated in Ireland and a wholly owned subsidiary of Shire, entered into an Agreement and Plan of Merger (the “Merger Agreement”), by and among Shire, SPI, Parquet Courts, Inc., a Delaware corporation and a wholly owned subsidiary of SPI (“Merger Sub”), and Dyax Corp., a Delaware corporation (“Dyax”), pursuant to which, upon the terms and subject to the conditions thereof, Merger Sub will be merged with and into Dyax, with Dyax being the surviving corporation (the “Merger”). As a result of the Merger, Dyax will become a wholly-owned subsidiary of SPI.

In connection with the Merger Agreement, Shire has entered into a US $5.6 billion facilities agreement as more fully described below; however, the closing of the Merger and the transactions contemplated by the Merger Agreement is not conditioned upon any financing requirement of SPI or the Merger Sub, including the financing under the US $5.6 billion facilities agreement.

Merger Agreement

Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, at the effective time of the Merger (the “Effective Time”), each outstanding share of Dyax’s common stock, par value $0.01 per share (each, a “Share”) (other than Shares owned by Shire, Dyax or their respective subsidiaries, or Shares as to which dissenters’ rights have been properly exercised) will be converted into the right to receive (i) $37.30 in cash, without interest (the “Per Share Cash Consideration”), and (ii) and one contingent value right (a “CVR”, together with the Per Share Cash Consideration, the “Per Share Merger Consideration”) representing the right to receive a payment of $4.00 in cash subject to and in accordance with the CVR Agreement described below.  Shire has guaranteed the performance by SPI and Merger Sub of their obligations under the Merger Agreement.

The Merger Agreement contains representations, warranties and covenants of the parties customary for transactions of this type.  Until the earlier of the termination of the Merger Agreement and the consummation of the Merger, Dyax has agreed to operate its business in the ordinary course and has agreed to certain other operating covenants, as set forth more fully in the Merger Agreement.  Dyax has agreed to cease all existing, and agreed not to solicit or initiate, discussions with third parties regarding other proposals to acquire Dyax.  However, Dyax may, subject to the terms and conditions set forth in the Merger Agreement, furnish information to, and engage in discussions and negotiations with, a third party that makes an unsolicited acquisition proposal.  Under certain circumstances and upon compliance with certain notice and other specified conditions set forth in the Merger Agreement, Dyax may change the recommendation of its board of directors or terminate the Merger Agreement to accept a superior proposal.  The Merger Agreement contains certain termination rights for both SPI and Dyax and further provides that, upon termination of the Merger Agreement under certain circumstances, including if Dyax terminates the Merger Agreement to accept a superior proposal, Dyax may be required to pay SPI a termination fee of $180.0 million.  The Merger Agreement further provides that, upon termination of the Merger Agreement under certain circumstances, including due to failure to obtain the expiration or termination of the applicable waiting period under the United States Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), SPI may be required to pay Dyax a termination fee of $280.0 million.  Shire and SPI have agreed to use reasonable best efforts to obtain antitrust approval of the transaction, but is not obligated to divest any assets other than assets of Dyax aggregating no greater than $77.0 million in revenue for 2014.

Consummation of the Merger is subject to various conditions, including, among others, the expiration or termination of the applicable waiting period under the HSR Act, and other customary closing conditions, each as set forth in the Merger Agreement. In addition, the consummation of the Merger is subject to receiving the adoption of the Merger Agreement by holders of a majority of the outstanding Dyax common stock entitled to vote on the Merger. The Merger is not subject to a financing condition.

Contingent Value Rights Agreement

Pursuant to the Merger Agreement, Shire will enter into a Contingent Value Rights Agreement (the “CVR Agreement”) with a rights agent governing the terms of the CVRs. Each CVR will entitle its holder to a payment of

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$4.00 in cash if, prior to December 31, 2019, Shire or one of its affiliates obtains approval from the U.S. Food and Drug Administration to market and sell DX-2930 for the prevention of attacks of hereditary angioedema in patients with Type 1 and Type 2 hereditary angioedema, provided that such approval (a) does not contain a “boxed warning”, (b) does not require the implementation of a risk evaluation and mitigation strategy with elements to assure safe use (other than elements limited to the distribution of educational materials) and (c) is not granted under subpart E of the Federal Drugs and Cosmetics Act.  The CVRs are not transferable, except in limited circumstances specified in the CVR Agreement.

Facilities Agreement

On November 2, 2015, Shire (as original guarantor and original borrower) entered into a US $5.6 billion facilities agreement with, among others, Morgan Stanley Bank International Limited and Deutsche Bank AG, London Branch (acting as mandated lead arrangers and bookrunners) (the “Facilities Agreement”).  The Facilities Agreement comprises three credit facilities: (i) a US $1.0 billion term loan facility which, subject to a 1 year extension option exercisable at Shire’s option, matures on November 2, 2016 (“Facility A”), (ii) a US $2.2 billion amortizing term loan facility which matures on November 2, 2017 (“Facility B”) and (iii) a US $2.4 billion amortizing term loan facility which matures on November 2, 2018 (“Facility C” and together with Facility A and Facility B, the “Facilities”).  Shire has agreed to act as guarantor for any of its subsidiaries that become additional borrowers under the Facilities Agreement.

The Facilities may be used only to finance the purchase price payable in respect of Shire’s proposed acquisition of Dyax (including the CVRs, to the extent these become payable) and certain costs related to the acquisition.

Interest on any loans made under the Facilities will be payable on the last day of each interest period, which may be one week or one, two, three or six months, or as otherwise agreed with the lenders.  The interest rate applicable to each of the Facilities is LIBOR plus, in the case of Facility A, 0.55% per annum, in the case of Facility B, 0.65% per annum and, in the case of Facility C, 0.75% per annum, in each case until delivery of the first compliance certificate required to be delivered after the date of the Facilities Agreement and is subject to change thereafter depending on (i) the prevailing ratio of Net Debt to EBITDA (each as defined in the Facilities Agreement) in respect of the most recently completed financial year or financial half year and (ii) whether an event of default has occurred and is continuing in respect of the financial covenants or there has been a failure to provide a compliance certificate and relevant financial statements.

The Facilities Agreement includes customary representations and warranties, covenants and events of default, including requirements that the ratio of Net Debt to EBITDA of the Group (each as defined in the Facilities Agreement) for the most recently ended Relevant Period (as defined in the Facilities Agreement) must not, at any time, exceed 3.5:1, except that following certain acquisitions, including the Merger, Shire may elect to increase its financial covenant headroom to (i) 5.5:1 in respect of the Relevant Period in which the acquisition was completed, (ii) 5.0:1 in respect of first Relevant Period following the Relevant Period in which the acquisition was completed and (iii) 4.5:1 in respect of second Relevant Period following the Relevant Period in which the acquisition was completed.  In addition, the ratio of EBITDA of the Group to Net Interest (each as defined in the Facilities Agreement) in respect of the most recently ended Relevant Period must not be less than 4.0:1.

The Facilities Agreement restricts (subject to certain exceptions) Shire’s and its subsidiaries’ ability to incur additional financial indebtedness, grant security over its assets or provide or guarantee loans.  Further, any lender may require mandatory prepayment of its participation if there is a change of control of Shire. In addition, in certain circumstances and subject to certain broad exceptions, the net cash proceeds of certain issues, sales or offerings of debt securities by any member of Shire’s group must be applied in cancellation of the available commitments under Facility A and (if applicable) mandatory prepayment of any loans made under Facility A.

Events of default under the Facilities Agreement include (subject to customary grace periods and materiality thresholds): (i) non-payment of any amounts due under the Facilities, (ii) failure to satisfy any financial covenants and other obligations under the Facilities Agreement, (iii) material misrepresentation in any of the finance documents, (iv) failure to pay, or certain other defaults, under other financial indebtedness, (v) certain insolvency events or proceedings, (vi) material adverse changes in the business, operations, assets or financial condition of Shire and its subsidiaries, (vii) if it becomes unlawful for Shire or any of its subsidiaries that are parties to the

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Facilities Agreement to perform their obligations or (viii) if Shire or any subsidiary of Shire which is a party to the Facilities Agreement repudiates the Facilities Agreement or any other finance document, among others.

The Facilities Agreement is governed by English law.

Additional Information

The foregoing is a general description of the Merger, Merger Agreement, the CVR Agreement and Facility Agreement; it does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, CVR Agreement and Facility Agreement, which are attached as Exhibit 2.1, Exhibit 10.1 and 10.2, respectively, to this Current Report on Form 8-K and incorporated in this report by reference.

The Merger Agreement is attached as an exhibit to this Current Report on Form 8-K to provide investors and Shire stockholders with information regarding the terms of the Merger Agreement and is not intended to modify or supplement any factual disclosures about Shire, SPI, Merger Sub or Dyax or any of their respective affiliates.  The representations, warranties and covenants contained in the Merger Agreement were made only for the purposes of the Merger Agreement, were made as of specific dates, were made solely for the benefit of the parties to the Merger Agreement and may not have been intended to be statements of fact, but rather, as a method of allocating risk and governing the contractual rights and relationships among the parties to the Merger Agreement. In addition, such representations, warranties and covenants may have been qualified by certain disclosures not reflected in the text of the Merger Agreement and may apply standards of materiality and other qualifications and limitations in a way that is different from what may be viewed as material by Shire’s or Dyax’s stockholders.  In reviewing the representations, warranties and covenants contained in the Merger Agreement or any descriptions thereof in this summary, it is important to bear in mind that such representations, warranties and covenants or any descriptions were not intended by the parties to the Merger Agreement to be characterizations of the actual state of facts or conditions of Shire, SPI, Merger Sub or Dyax or any of their respective affiliates.  Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures.  For the foregoing reasons, the representations, warranties and covenants or any descriptions of those provisions should not be read alone and should instead be read in conjunction with the other information contained in the reports, statements and filings that Shire and Dyax publicly file with the SEC. Shire acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements in this Form 8-K not misleading.

Item 2.03Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant

The disclosure required by this item is included in Item 1.01 and is incorporated herein by reference.

Item 7.01Regulation FD Disclosure

On November 2, 2015, Shire and Dyax issued a joint press release announcing the execution of the Merger Agreement. The press release is attached as Exhibit 99.1 hereto.  The information furnished under this Item 7.01, including Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities under that section and shall not be deemed to be incorporated by reference into any filing under the Securities Act of 1933 or the Exchange Act, except as expressly set forth by specific reference in such filing.  In addition, Exhibit 99.1 contains statements intended as “forward-looking statements” that are subject to the cautionary statements about forward-looking statements set forth in such exhibit.

Although Shire, as a foreign private issuer, is not subject to Regulation FD, Shire has elected to furnish voluntarily the information herein under Item 7.01.

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

Statements included in this communication that are not historical facts are forward-looking statements.  Forward-looking statements involve a number of risks and uncertainties and are subject to change at any time.  In the event such risks or uncertainties materialize, results could be materially adversely affected. The risks and uncertainties include, but are not limited to, that:

·Shire’s proposed acquisition of Dyax may not be consummated due to the occurrence of an event, change or other circumstances that gives rise to the termination of the merger agreement;

·a governmental or regulatory approval required for the proposed acquisition of Dyax may not obtained, or may be obtained subject to conditions that are not anticipated, or another condition to the closing of the proposed acquisition may not be satisfied;

·Dyax may be unable to retain and hire key personnel and/or maintain its relationships with customers, suppliers and other business partners pending the consummation of the proposed acquisition by Shire, or Shire’s business may be disrupted by the proposed acquisition, including increased costs and diversion of management time and resources;

·difficulties in integrating Dyax into Shire may lead to greater costs and lower integration benefits than anticipated;

·the non-occurrence of the milestone event specified in the contingent value rights agreement;

and risks and uncertainties detailed from time to time in Shire’s or Dyax’s filings with the U.S. Securities and Exchange Commission, including their respective most recent Annual Reports on Form 10-K.

JERSEY REGULATORY MATTERS

The Jersey Financial Services Commission (“JFSC”) has given, and has not withdrawn, its consent under Article 4 of the Control of Borrowing (Jersey) Order 1958 to the rights provided pursuant to the CVR Agreement. The JFSC is protected by the Control of Borrowing (Jersey) Law 1947 against any liability arising from the discharge of its functions under that law.

A copy of this document has been delivered to the Jersey Registrar of Companies in accordance with Article 5 of the Companies (General Provisions) (Jersey) Order 2002 and the Jersey Registrar of Companies has given, and has not withdrawn, his consent to its circulation.

It must be distinctly understood that, in giving these consents, neither the Jersey Registrar of Companies nor the JFSC takes any responsibility for the financial soundness of Shire or for the correctness of any statements made, or opinions expressed, with regard to it. If you are in any doubt about the contents of this document, you should consult your stockbroker, bank manager, solicitor, accountant or other financial adviser.

Nothing in this document or anything communicated to holders receiving consideration pursuant to the CVR Agreement by or on behalf of Shire is intended to constitute or should be construed as advice on the merits of the rights pursuant to the CVR Agreement for the purposes of the Financial Services (Jersey) Law 1998.

Our directors have taken all reasonable care to ensure that the facts stated in this document are true and accurate in all material respects, and that there are no other facts the omission of which would make misleading any statement in this document, whether of facts or opinion. All our directors accept responsibility accordingly.

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Item 9.01Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.	Description
2.1	Agreement and Plan of Merger, dated as of November 2, 2015, among Shire Pharmaceuticals International, Parquet Courts, Inc., Dyax Corp. and Shire plc.*
10.1	Form of Contingent Value Rights Agreement among Shire plc and American Stock Transfer & Trust Company, LLC.
10.2	Facilities Agreement dated November 2, 2015 among Shire plc, Morgan Stanley Bank International Limited and Deutsche Bank AG, London Branch and the other parties thereto.
99.1	Joint Press Release issued by Shire plc and Dyax Corp. dated November 2, 2015.

* The schedules to the Merger Agreement have been omitted from this filing pursuant to Item 601(b)(2) of Regulation S-K. Shire will furnish copies of such schedules to the SEC upon its request; provided, however, that Shire may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any schedule so furnished.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	SHIRE PLC
Date: November 2, 2015	By:	/s/ Bill Mordan
		Bill Mordan
		Company Secretary

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EXHIBIT INDEX

Exhibit No.	Description
2.1	Agreement and Plan of Merger, dated as of November 2, 2015, among Shire Pharmaceuticals International, Parquet Courts, Inc., Dyax Corp. and Shire plc.*
10.1	Form of Contingent Value Rights Agreement among Shire plc and American Stock Transfer & Trust Company, LLC.
10.2	Facilities Agreement dated November 2, 2015 among Shire plc, Morgan Stanley Bank International Limited and Deutsche Bank AG, London Branch and the other parties thereto.
99.1	Joint Press Release issued by Shire plc and Dyax Corp. dated November 2, 2015.

* The schedules to the Merger Agreement have been omitted from this filing pursuant to Item 601(b)(2) of Regulation S-K. Shire will furnish copies of such schedules to the SEC upon its request; provided, however, that Shire may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any schedule so furnished.

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EX-2.1

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

Among

DYAX CORP.,

SHIRE PHARMACEUTICALS INTERNATIONAL,

PARQUET COURTS, INC.

and

SHIRE PLC

Dated as of November 2, 2015

TABLE OF CONTENTS

		Page
ARTICLE I
The Merger; Closing; Effective Time
1.1	The Merger	2
1.2	Closing	2
1.3	Effective Time	2
ARTICLE II
Certificate of Incorporation and Bylaws
of the Surviving Corporation
2.1	The Certificate of Incorporation	2
2.2	The Bylaws	2
ARTICLE III
Directors and Officers of the Surviving Corporation
3.1	Directors	3
3.2	Officers	3
ARTICLE IV
Effect of the Merger on Capital Stock;
Exchange of Certificates
4.1	Effect on Capital Stock	3
4.2	Exchange of Shares	4
4.3	Treatment of Equity Awards and ESPP	7
4.4	Adjustments to Prevent Dilution	9
ARTICLE V
Representations and Warranties
5.1	Representations and Warranties of the Company	9
5.2	Representations and Warranties of Parent Holdco, Parent and Merger Sub	33

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ARTICLE VI
Covenants
6.1	Interim Operations	36
6.2	Acquisition Proposals	39
6.3	Stockholders Meeting; Filings; Other Actions; Notification	43
6.4	Access and Reports	48
6.5	Stock Exchange De-listing	49
6.6	Publicity	49
6.7	Employee Benefits	49
6.8	Agreements Concerning Parent Holdco, Parent and Merger Sub	51
6.9	Indemnification; Directors’ and Officers’ Insurance	52
6.10	Takeover Statutes	53
6.11	Section 16 Matters	53
6.12	Parent Holdco Guarantee	54
6.13	Transaction Litigation	54
6.14	Resignations	54
ARTICLE VII
Conditions
7.1	Conditions to Each Party’s Obligation to Effect the Merger	55
7.2	Conditions to the Obligations of Parent and Merger Sub to Effect the Merger	55
7.3	Condition to the Company’s Obligation to Effect the Merger	56
ARTICLE VIII
Termination
8.1	Termination by Mutual Consent	57
8.2	Termination by Either Parent or the Company	57
8.3	Termination by the Company	58
8.4	Termination by Parent	58
8.5	Effect of Termination and Abandonment	58
ARTICLE IX
Miscellaneous and General
9.1	Survival	61
9.2	Modification or Amendment	62
9.3	Waiver of Conditions	62
9.4	Counterparts	62
9.5	GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL; SPECIFIC PERFORMANCE	62

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9.6	Notices	63
9.7	Entire Agreement	65
9.8	No Third Party Beneficiaries	65
9.9	Obligations of Parent Holdco, Parent and of the Company	66
9.10	Definitions	66
9.11	Severability	66
9.12	Interpretation; Construction	66
9.13	Assignment	67

Annex A	Defined Terms	A-1
Exhibit A	Form of Certificate of Incorporation of the Surviving Corporation
Exhibit B	Form of Bylaws of the Surviving Corporation
Exhibit C	Form of Contingent Value Rights Agreement

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AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER (hereinafter called this “Agreement”), dated as of November 2, 2015, by and among Dyax Corp., a Delaware corporation (the “Company”), Shire Pharmaceuticals International, a company incorporated in Ireland (“Parent”), Parquet Courts, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub,” with the Company and Merger Sub sometimes being hereinafter collectively referred to as the “Constituent Corporations”) and Shire plc, a company incorporated in Jersey (“Parent Holdco”).

RECITALS

WHEREAS, the board of directors of the Company has unanimously (i) approved and declared advisable this Agreement and the transactions contemplated by this Agreement, including the merger of Merger Sub with and into the Company, with the Company being the surviving corporation (the “Merger”), upon the terms and subject to the conditions set forth herein, (ii) determined that this Agreement and such transactions are fair to, and in the best interests of, the Company and its stockholders (other than Parent Holdco, Parent and its Subsidiaries) and (iii) resolved to recommend that the Company’s stockholders approve the adoption of this Agreement;

WHEREAS, each of the boards of directors of Parent Holdco, Parent and Merger Sub has (i) approved and declared advisable this Agreement and the transactions contemplated by this Agreement, including the Merger, upon the terms and subject to the conditions set forth herein and (ii) determined that this Agreement and such transactions are fair to, and in the best interests of, Parent Holdco, Parent and Merger Sub, respectively;

WHEREAS, Parent, as the sole stockholder of Merger Sub, shall, on the date hereof immediately following execution and delivery of this Agreement, adopt this Agreement and approve the transactions contemplated by this Agreement, including the Merger;

WHEREAS, subject to the terms and conditions of this Agreement, at or prior to the Effective Time (as defined below), Parent Holdco and a rights agent mutually agreeable to Parent Holdco and the Company (the “Rights Agent”) will enter into a Contingent Value Rights Agreement in substantially the form attached hereto as EXHIBIT C (subject to changes permitted by Section 6.3(c)) (the “CVR Agreement”); and

WHEREAS, the Company, Parent Holdco, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows:

ARTICLE I

The Merger; Closing; Effective Time

1.1The Merger.  Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), at the Effective Time, Merger Sub shall be merged with and into the Company and the separate corporate existence of Merger Sub shall thereupon cease.  The Company shall be the surviving corporation in the Merger (sometimes hereinafter referred to as the “Surviving Corporation”), and the separate corporate existence of the Company, with all of its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger, except as set forth in ARTICLE II.  The Merger shall have the effects specified in the DGCL.

1.2Closing.  Unless otherwise mutually agreed in writing between the Company and Parent, the closing for the Merger (the “Closing”) shall take place at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York on the third (3rd) business day, or such other place and time as mutually agreed upon in writing by the parties hereto (the “Closing Date”), following the day on which the last to be satisfied or waived of the conditions set forth in ARTICLE VII (other than those conditions that by their nature are to be satisfied at or immediately prior to the Closing, but subject to the fulfillment or waiver of those conditions) shall be satisfied or waived in accordance with this Agreement. As used in this Agreement, the term “business day” means any day other than a Saturday or a Sunday or a day on which commercial banks are authorized or required by Law or executive order to be closed in New York City.

1.3Effective Time.  As soon as practicable following the Closing, the Company, Parent and Merger Sub will cause a certificate of merger (the “Certificate of Merger”) to be executed, acknowledged and filed with the Secretary of State of the State of Delaware.  The Merger shall become effective at the time when the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such later time as may be agreed by the parties in writing and specified in the Certificate of Merger (the “Effective Time”).

ARTICLE II

Certificate of Incorporation and Bylaws
of the Surviving Corporation

2.1The Certificate of Incorporation.  At the Effective Time, the certificate of incorporation of the Company (the “Charter”) shall be amended and restated in its entirety to read as set forth in EXHIBIT A hereto, and such amended and restated Charter shall serve as the certificate of incorporation of the Surviving Corporation until thereafter amended as provided therein or by applicable Law.

2.2The Bylaws.  The parties hereto shall take all actions necessary so that the bylaws of the Company in effect immediately prior to the Effective Time shall be amended and restated in their entirety to read as set forth in EXHIBIT B hereto, and such amended and

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restated Bylaws shall serve as the bylaws of the Surviving Corporation (the “Bylaws”), until thereafter amended as provided therein or by applicable Law.

ARTICLE III

Directors and Officers of the Surviving Corporation

3.1Directors.  The parties hereto shall take all actions necessary so that the board of directors of Merger Sub at the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Charter and the Bylaws.

3.2Officers.  The officers of the Company at the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation until their successors shall have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Charter and the Bylaws.

ARTICLE IV

Effect of the Merger on Capital Stock;
Exchange of Certificates

4.1Effect on Capital Stock.  At the Effective Time, as a result of the Merger and without any action on the part of the holder of any capital stock of the Company or on the part of the sole stockholder of Merger Sub:

(a)Merger Consideration.  Each outstanding share of common stock, par value $0.01 per share, of the Company (each a “Share” and, collectively, the “Shares”) issued and outstanding immediately prior to the Effective Time other than (i) Shares owned by Parent, Merger Sub or any other direct or indirect wholly owned Subsidiary of Parent and Shares owned by the Company, and in each case not held on behalf of third parties, and (ii) Shares that are owned by stockholders (“Dissenting Stockholders”) who have perfected and not withdrawn a demand for (or lost their right to) appraisal rights pursuant to Section 262 of the DGCL (each Share referred to in clause (i) or clause (ii) of this Section 4.1(a) being an “Excluded Share” and, collectively, “Excluded Shares”) shall be converted into the right to receive (I) an amount in cash equal to $37.30 (the “Per Share Cash Consideration”) and (II) one (1) contractual contingent value right pursuant to the CVR Agreement (a “CVR”), in each case, without interest thereon ((I) and (II) collectively, the “Per Share Merger Consideration”).  At the Effective Time, all of the Shares shall cease to be outstanding, shall be cancelled and shall cease to exist, and each certificate (a “Certificate”) formerly representing any of the Shares (other than Excluded Shares) and each non-certificated Share represented by book-entry (a “Book-Entry Share”) (other than Excluded Shares) shall thereafter represent only the right to receive the Per Share Merger Consideration, without interest.

(b)Treatment of Excluded Shares.  Each Share that is an Excluded Share pursuant to clause (ii) of the definition thereof, by virtue of the Merger and without any action on

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the part of the holder thereof, shall cease to be outstanding, shall be cancelled without payment of any consideration therefor and shall cease to exist, subject to any rights the holder thereof may have under Section 4.2(g).  Each Share that is an Excluded Share pursuant to clause (i) of the definition thereof shall remain outstanding and shall be unaffected by the Merger.

(c)Merger Sub.  At the Effective Time, each share of common stock, par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into one (1) share of common stock, par value $0.01 per share, of the Surviving Corporation.

4.2Exchange of Shares.

(a)Paying Agent.  At or immediately prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with a paying agent selected by Parent with the Company’s prior approval (such approval not to be unreasonably withheld or delayed) (the “Paying Agent”), for the benefit of the former holders of Shares, a cash amount in immediately available funds necessary for the Paying Agent to make payments under Section 4.1(a) in respect of the Per Share Cash Consideration (such cash amount being hereinafter referred to as the “Exchange Fund”).  For the avoidance of doubt, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the CVR Agreement.  The Paying Agent agreement pursuant to which Parent shall appoint the Paying Agent shall be in form and substance reasonably acceptable to the Company.  The Paying Agent shall invest the cash in the Exchange Fund as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Financial Services LLC, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of investment.  Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 4.1(a) shall be promptly returned to the Surviving Corporation.  To the extent that there are any losses with respect to any such investments, or the Exchange Fund diminishes for any reason below the level required for the Paying Agent to make prompt cash payment under Section 4.1(a), Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Paying Agent to make such payments under Section 4.1(a).  If any holder of Shares that are Excluded Shares pursuant to clause (ii) of the definition thereof shall fail to perfect or otherwise shall waive, validly withdraw or lose the right to appraisal under Section 262 of the DGCL with respect to any of such holder’s Excluded Shares, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262 of the DGCL with respect to any of such holder’s Excluded Shares, then Parent shall deposit with the Paying Agent cash in an amount sufficient to pay the aggregate Per Share Cash Consideration as required to be paid pursuant to this Agreement with respect to such Excluded Shares, and the Exchange Fund shall be deemed to include the cash so deposited.

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(b)Exchange Procedures.

(i)Promptly after the Effective Time (and in any event within five (5) business days thereafter), the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of a Certificate representing Shares (other than holders of Excluded Shares) (A) a letter of transmittal in customary form specifying that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(e)) to the Paying Agent, such letter of transmittal to be in such form and have such other provisions as Parent and the Company may reasonably agree, and (B) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(e)) in exchange for the Per Share Merger Consideration.  Upon surrender of a Certificate (or affidavit of loss in lieu thereof as provided in Section 4.2(e)) to the Paying Agent in accordance with the terms of such letter of transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor (I) a cash amount in immediately available funds (after giving effect to any required Tax withholdings as provided in Section 4.2(h)) equal to (x) the number of Shares represented by such Certificate (or affidavit of loss in lieu thereof as provided in Section 4.2(e)) multiplied by (y) the Per Share Cash Consideration and (II) one (1) CVR for each Share represented by such Certificate (or affidavit of loss in lieu thereof as provided in Section 4.2(e)) in accordance with and subject to the CVR Agreement, and the Certificate so surrendered shall forthwith be cancelled.  No interest will be paid or accrued on any amount payable upon due surrender of the Certificates.  In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a check for any cash to be exchanged upon due surrender of the Certificate may be issued to such transferee (after giving effect to any required Tax withholdings as provided in Section 4.2(h)) if the Certificate formerly representing such Shares is presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and to evidence that any and all transfer and other Taxes required by reason of the issuance to such transferee have been paid or are not applicable.

(ii)Notwithstanding anything to the contrary in this Agreement, any holder of Book-Entry Shares shall not be required to deliver a Certificate or an executed letter of transmittal to the Paying Agent to receive the Per Share Merger Consideration that such holder is entitled to receive pursuant to this ARTICLE IV.  In lieu thereof, each holder of record of one or more Book-Entry Shares whose Shares were converted into the right to receive the Per Share Merger Consideration shall upon receipt by the Paying Agent of an “agent’s message” in customary form (or such other evidence, if any, as the Paying Agent may reasonably request), be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as reasonably practicable after the Effective Time, the Per Share Merger Consideration in respect of each such Share, and the Book-Entry Shares of such holder shall forthwith be cancelled.

(c)Transfers.  From and after the Effective Time, there shall be no transfers on the stock transfer books of the Company of the Shares that were outstanding immediately prior to the Effective Time.  If, after the Effective Time, any Certificate or Book-Entry Share is

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presented to the Surviving Corporation, Parent or the Paying Agent for transfer, it shall be cancelled and exchanged for the cash amount in immediately available funds and the CVRs to which the holder thereof is entitled pursuant to this ARTICLE IV.

(d)Termination of Exchange Fund.  Any portion of the Exchange Fund (including the proceeds of any investments thereof) that remains unclaimed by the stockholders of the Company 180 days after the Effective Time shall be delivered to the Surviving Corporation.  Any holder of Shares (other than Excluded Shares) who has not theretofore complied with this ARTICLE IV shall thereafter look only to the Surviving Corporation for payment and delivery of the Per Share Merger Consideration (after giving effect to any required Tax withholdings as provided in Section 4.2(h)) upon due surrender of its Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(e)) or Book-Entry Shares, without any interest thereon.  Notwithstanding the foregoing, none of the Surviving Corporation, Parent, the Paying Agent or any other Person shall be liable to any former holder of Shares for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.  If the consideration owed to a former holder of Shares has not been paid prior to the date on which such consideration would otherwise escheat to, or become the property of, any Governmental Entity, any such consideration shall, to the extent permitted by applicable Law, immediately prior to such time become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto. For the purposes of this Agreement, the term “Person” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Entity or other entity of any kind or nature.

(e)Lost, Stolen or Destroyed Certificates.  In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such Person of a bond in customary amount and upon such terms as may be reasonably required by Parent or the Paying Agent as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, following compliance with the procedures set forth in Section 4.1(b), the Paying Agent will (I) issue a check in the amount (after giving effect to any required Tax withholdings as provided in Section 4.2(h)) equal to (i) the number of Shares represented by such lost, stolen or destroyed Certificate multiplied by (ii) the Per Share Cash Consideration and (II) one (1) CVR for each Share represented by such lost, stolen or destroyed Certificate in accordance with and subject to the CVR Agreement.

(f)No Fractional CVRs.  No fraction of a CVR will be issued in connection with the Merger or any other transaction contemplated by this Agreement and the CVR Agreement, and no certificates or scrip for any such fractional CVR shall be issued. Each holder of Shares who would otherwise be entitled to receive a fraction of a CVR pursuant to this Agreement, after aggregating all fractional CVRs to be received by such holder (a “Fractional CVR”), shall, upon surrender of such holder’s Shares, receive one (1) CVR in exchange for such Fractional CVR if the amount of such Fractional CVR is greater than or equal to 0.50 or no consideration for such Fractional CVR if the amount of such Fractional CVR is less than 0.50.

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(g)Appraisal Rights.  No Person who has perfected a demand for appraisal rights pursuant to Section 262 of the DGCL shall be entitled to receive the Per Share Merger Consideration with respect to the Shares owned by such Person unless and until such Person shall have effectively withdrawn or lost such Person’s right to appraisal under the DGCL.  Each Dissenting Stockholder shall be entitled to receive only the payment provided by Section 262 of the DGCL with respect to Shares owned by such Dissenting Stockholder.  The Company shall give Parent (i) prompt notice of any written demands for appraisal, attempted withdrawals of such demands, and any other instruments served pursuant to applicable Law that are received by the Company relating to stockholders’ rights of appraisal and (ii) the opportunity to participate in all negotiations and proceedings with respect to any such demand for appraisal under the DGCL.  Parent shall have the right to direct all negotiation with the Dissenting Stockholder(s) and the Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for appraisal, offer to settle or settle any such demands.

(h)Withholding Rights.  Parent (or, as directed by Parent, any of the Company, the Surviving Corporation, the Paying Agent or the Rights Agent) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement or the CVR Agreement to any holder of Shares, Company Options (as defined in Section 4.3(a)) and Company RSUs (as defined in Section 4.3(b)) such amounts as it reasonably determines is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable state, local or foreign Tax Law.  To the extent that amounts are so withheld by the Company, the Surviving Corporation, Parent or the Paying Agent, as the case may be, such withheld amounts (i) shall be remitted by the Company, Parent, the Surviving Corporation or the Paying Agent, as applicable, to the applicable Governmental Entity, and (ii) shall be treated for all purposes of this Agreement and the CVR Agreement as having been paid to the holder of Shares, Company Options or Company RSUs in respect of which such deduction and withholding was made by the Company, the Surviving Corporation, Parent or the Paying Agent, as the case may be.

(i)Transfer Taxes.  All transfer, property, documentary, sales, use, stamp, registration and other such Taxes that are imposed on any of the parties by any Tax authority in connection with the transactions contemplated by this Agreement shall be borne by the applicable Company stockholder, Company RSU holder or Company Option holder, as applicable.

4.3Treatment of Equity Awards and ESPP.

(a)Company Options.  At the Effective Time, each outstanding option to purchase Shares (each, a “Company Option”) under the Company’s Amended and Restated 1995 Equity Incentive Plan (the “Stock Plan”) with a per share exercise price that is less than the Per Share Merger Consideration, whether vested or unvested, shall, automatically and without any required action on the part of the holder thereof, be cancelled and converted into only the right to receive (without interest and subject to Section 4.2(h)), as soon as reasonably practicable (but in any event within ten (10) business days) following the Effective Time, (I) an amount in cash equal to the product of (i) the excess of (A) the Per Share Cash Consideration over (B) the exercise price per share of such Company Option, and (ii) the number of Shares underlying such Company Option and (II) one (1) CVR for each Share subject to such Company Option in

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accordance with and subject to the CVR Agreement; provided, for the avoidance of doubt, that no cash amount and no CVRs shall be payable with respect to a Company Option that has a per share exercise price that is equal to or exceeds the Per Share Cash Consideration and such Company Option shall be cancelled and terminated without any payment or delivery being made in respect thereof (whether in the form of cash or a CVR), and the holder of any such Company Option shall have no further rights with respect thereto.

(b)RSUs.  At the Effective Time, (A) any vesting conditions applicable to each outstanding restricted stock unit (each, a “Company RSU”) under the Stock Plan shall, automatically and without any required action on the part of the holder thereof, be deemed satisfied in full, and (B) each Company RSU shall, automatically and without any required action on the part of the holder thereof, be cancelled and shall only entitle the holder of such Company RSU to receive (without interest and subject to Section 4.2(h)) as soon as reasonably practicable (but in any event within ten (10) business days) following the Effective Time, (I) an amount in cash equal to (x) the number of Shares subject to such Company RSU immediately prior to the Effective Time multiplied by (y) the Per Share Cash Consideration and (II) one (1) CVR for each Share subject to such Company RSU in accordance with and subject to the CVR Agreement; provided that, with respect to any Company RSUs 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, such payment shall be made at the earliest time permitted under the Stock Plan and applicable award agreement that will not trigger a Tax or penalty under Section 409A of the Code.

(c)Employee Stock Purchase Plan.  As soon as reasonably practicable following the date of this Agreement and in any event prior to the end of the Final Offering (as defined below and as provided in clause (B)), the Company shall take all actions that may be necessary or required under the Company’s 1998 Employee Stock Purchase Plan, as amended on March 25, 2009 (the “ESPP”) and applicable Laws to ensure that (A) except for the six (6) month offering period under the ESPP that commenced on June 1, 2015 (the “Final Offering”), no offering period shall be authorized or commenced on or after the date of this Agreement, (B) the Final Offering will end at the earlier to occur of December 1, 2015 and the date that is seven (7) business days prior to the anticipated Effective Time, (C) each ESPP participant’s accumulated contributions under the ESPP shall be used to purchase Shares in accordance with the ESPP as of the end of the Final Offering, (D) the applicable purchase price for Shares shall not be decreased below the levels set forth in the ESPP as of the date of this Agreement, (E) no participant in the ESPP may increase his or her rate of payroll deductions used to purchase Shares under the ESPP for the remainder of the Final Offering, (F) only participants in the ESPP as of the date of this Agreement may continue to participate in the ESPP for the remainder of the Final Offering and (G) the ESPP shall terminate in its entirety at the Effective Time and no further rights shall be granted or exercised under the ESPP thereafter.

(d)Corporate Actions.  At or prior to the Effective Time, the Company, the board of directors of the Company and the compensation committee of the board of directors of the Company, as applicable, shall adopt any resolutions and take any actions which are necessary to effectuate the provisions of Sections 4.3(a), 4.3(b) and 4.3(c).  The Company will provide drafts of all written materials in connection with the foregoing obligation to Parent not less than

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three (3) business days in advance of taking such action and shall consider in good faith any comments from Parent on such materials.

4.4Adjustments to Prevent Dilution.  In the event that the Company changes the number of Shares or securities convertible or exchangeable into or exercisable for Shares issued and outstanding prior to the Effective Time as a result of a reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, merger, issuer tender or exchange offer, or other similar transaction, the Per Share Merger Consideration shall be ratably adjusted.

ARTICLE V

Representations and Warranties

5.1Representations and Warranties of the Company.  Except as set forth in the Company Reports (as defined below) filed with or furnished to the Securities and Exchange Commission (the “SEC”) after January 1, 2015 and prior to the date hereof (including items incorporated by reference therein but excluding all cautionary and forward-looking disclosures, including without limitation, those contained under the captions “Risk Factors” or “Forward Looking Statements” or similarly titled captions) or in the corresponding sections or subsections of the disclosure letter delivered to Parent by the Company prior to entering into this Agreement (the “Company Disclosure Letter”) (it being agreed that disclosure of any item in any section or subsection of the Company Disclosure Letter shall be deemed disclosure with respect to any other section or subsection to which the relevance of such item is reasonably apparent), the Company hereby represents and warrants to Parent and Merger Sub that:

(a)Organization, Good Standing and Qualification.  The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted. Each of the (i) Company’s Subsidiaries is a legal entity duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted and (ii) the Company and its Subsidiaries are duly qualified or licensed, and have all necessary governmental approvals, to do business and are in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such approvals, qualification or licensing necessary, except where the failure to be so organized or in existence, qualified or licensed or to have such power, authority or approvals or be 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 to Parent complete and correct copies of the Company’s certificate of incorporation and bylaws, each as amended to the date of this Agreement (including an amendment to such bylaws approved by the board of directors of the Company to include an exclusive forum bylaw prior to the date hereof), and each as so made available is in effect on the date of this Agreement. Each of the Subsidiaries of the Company are set forth in Section 5.1(a) of the Company Disclosure Letter, together with their jurisdiction of organization. Each of the Subsidiaries set forth in Section 5.1(a) of the Company Disclosure Letter is wholly-owned and,

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except for such Subsidiaries, neither the Company nor any of its Subsidiaries owns, directly or indirectly, any equity or other ownership interest in any Person.

As used in this Agreement, the term (i) “Subsidiary” means, with respect to any Person, any other Person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions is directly or indirectly owned or controlled by such Person and/or by one or more of its Subsidiaries; (ii)  “Affiliate” means, with respect to any Person, any other Person, directly or indirectly, controlling, controlled by, or under common control with, such Person.  For purposes of this definition, the term “control” (including the correlative terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; and (iii) “Company Material Adverse Effect” means an effect, change, event, development, circumstance or occurrence that, individually or in the aggregate, together with all other adverse effects, changes, events, developments, circumstances or occurrences that exist on the date of determination, has had or would reasonably be expected to have (a) a material adverse effect on the condition (financial or otherwise), business, assets, liabilities or results of operations of the Company and its Subsidiaries, taken as a whole; provided, however, that none of the following shall constitute or be taken into account in determining whether there has been, is or would be a Company Material Adverse Effect under this clause (a):

(A)any changes in global, national or regional economic conditions;

(B)any changes in conditions generally affecting the pharmaceutical, biopharmaceutical or biotechnology industries;

(C)any decline in the market price or trading volume of the Shares on the NASDAQ Stock Market (“NASDAQ”) (provided that the exception in this clause (C) shall not prevent or otherwise affect a determination that any change, effect or development underlying such decline has resulted in or contributed to a Company Material Adverse Effect, subject to the other sub-clauses of clause (a) of this definition);

(D)any regulatory, legislative or political conditions or securities, credit, financial or other capital markets conditions, in each case in the United States or any foreign jurisdiction;

(E)any failure, in and of itself, by the Company or any of its Subsidiaries to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (provided that the exception in this sub-clause (E) shall not prevent or otherwise affect a determination that any change, effect or development underlying such failure has resulted in or contributed to a Company Material Adverse Effect, subject to the other sub-clauses of clause (a) of this definition);

(F)the execution and delivery of this Agreement (except to the extent such change, effect or development was the result of a breach of Section 5.1(d)(ii)), the

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performance by any party hereto of its obligations hereunder or the public announcement or the pendency of the Merger or any of the other transactions contemplated by this Agreement, including the impact thereof on the relationships, contractual or otherwise, of the Company or any Subsidiary with its employees or with any other third party;

(G)any litigation arising from allegations of any breach of fiduciary duty or violation of the Securities Laws relating to this Agreement or the CVR Agreement or the Merger or compliance by the Company with the terms of this Agreement or the CVR Agreement;

(H)changes or proposed changes in GAAP or in Laws applicable to the Company or any Subsidiary or the enforcement or interpretation thereof;

(I)any geopolitical conditions, the outbreak or escalation of hostilities, any acts of war, sabotage, biological attacks, terrorism or military actions, or any escalation or worsening of any such hostilities, acts of war, sabotage, terrorism or military actions threatened or underway as of the date of this Agreement;

(J)any change resulting from or arising out of a hurricane, earthquake, flood, tsunami, tornado or other natural disaster, weather conditions or other similar force majeure event; and

(K)any change resulting or arising from the identity of, or any facts or circumstances relating to, Parent Holdco, Parent, Merger Sub or any of their respective Affiliates.

or (b) a material adverse effect on the ability of the Company to consummate the Merger or other transactions contemplated in this Agreement.  Any effect, change, event, development, circumstance or occurrence referred to in sub-clauses (A), (B), (D), (H), (I) or (J) of clause (a) above may be taken into account in determining whether or not there has been a Company Material Adverse Effect pursuant to clause (a) above to the extent such effect, change, event, development, circumstance or occurrence has a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to the adverse effect that such changes have on other biopharmaceutical companies.

(b)Capital Structure.  The authorized capital stock of the Company consists of 201,000,000 Shares, of which 147,128,033 Shares were outstanding as of the close of business on October 30, 2015.  All of the outstanding Shares have been duly authorized and are validly issued, fully paid and nonassessable.  As of October 30, 2015, other than 20,520,928 Shares reserved for issuance under the Stock Plan, with respect to which 13,760,875 Shares were issuable upon the exercise of outstanding Company Options (at a weighted-average exercise price of $8.050 per Share) and 557,601 Shares were subject to outstanding Company RSUs, and 672,186 Shares reserved for issuance in respect of the ESPP, the Company has no Shares reserved for issuance. Section 5.1(b) of the Company Disclosure Letter sets forth a correct and complete list of the outstanding Company Options and Company RSUs, and with respect to each such award, the date of grant and, where applicable, the exercise price thereof, as of October 30, 2015.  Each of the outstanding shares of capital stock or other equity securities of each of the

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Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and, except as is not reasonably expected to have a Company Material Adverse Effect, owned by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Lien. Except as set forth above, there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, performance units, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company or any of its Subsidiaries to issue or sell any shares of capital stock or other equity securities of the Company or any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any equity securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding.  Except as set forth above, there are no outstanding stock-appreciation rights, security-based performance units, “phantom” stock or other security rights or other agreements, arrangements or commitments of any character (contingent or otherwise) pursuant to which any Person is or may be entitled to receive any payment or other value based in whole or in part on the value of any capital stock of the Company.  Upon any issuance of any Shares in accordance with the terms of the Stock Plan or the ESPP, such Shares will be duly authorized, validly issued, fully paid and nonassessable and free and clear of any lien, charge, pledge, security interest, claim or other encumbrance other than general restrictions on transfer imposed by the applicable U.S. federal securities Laws and the rules and regulations of the SEC thereunder (collectively, the “Securities Laws”) (each, a “Lien”).  The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.  For purposes of this Agreement, a wholly owned Subsidiary of the Company shall include any Subsidiary of the Company of which all of the shares of capital stock of such Subsidiary are owned by the Company (or a wholly owned Subsidiary of the Company).

(c)Corporate Authority; Approval.

(i)The Company has all requisite corporate power and authority and has taken all corporate action necessary in order to execute and deliver this Agreement and to perform its obligations under this Agreement and, subject to obtaining the Company Requisite Vote, to consummate the Merger and any other transaction contemplated by this Agreement.  This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”), and subject, with respect to the consummation of the Merger, to the adoption of this Agreement by the holders of a majority of the outstanding Shares entitled to vote on such matter at a stockholders’ meeting duly called and held for such purpose (the “Company Requisite Vote”).

(ii)The board of directors of the Company has unanimously determined that the Merger is in the best interests of the Company and its stockholders, approved and declared advisable this Agreement and the Merger and the other transactions contemplated by this Agreement and resolved, subject to Section 6.2 hereof,

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to recommend that the holders of Shares adopt this Agreement (the “Company Recommendation”) and, as of the date hereof, none of such actions by the board of directors of the Company has been amended, rescinded or modified.

(d)Governmental Filings and Approvals; No Violations; Certain Contracts.

(i)Other than the filings, approvals and/or notices (A) pursuant to Section 1.3, (B) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (C) under the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder (the “Exchange Act”), the Securities Act of 1933 (the “Securities Act”) or foreign or state securities or “blue sky” laws, including the filing and dissemination of the Proxy Statement, (D) under stock exchange rules and (E) the filings, approvals and/or notices listed in Section 5.1(d)(i) of the Company Disclosure Letter, no notices, reports or other filings are required to be made by the Company with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by the Company from, any domestic or foreign governmental or regulatory authority, agency, commission, body, court or other legislative, executive or judicial governmental entity (each, a “Governmental Entity”), in connection with the execution, delivery and performance of this Agreement by the Company and the consummation of the Merger, except those, the failure to make or obtain which are not, individually or in the aggregate, reasonably expected to have a Company Material Adverse Effect or prevent, materially delay or materially impair the consummation of the Merger.

(ii)The execution, delivery and performance of this Agreement by the Company do not, and the consummation of the Merger will not, constitute or result in (A) a breach or violation of, or a default under, the certificate of incorporation or bylaws of the Company, (B) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) or a default under, the creation or acceleration of any obligations under, or the creation of a Lien on any of the assets of the Company pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation binding upon the Company (each, a “Contract”) not otherwise terminable by the other party thereto on thirty (30) days’ or less notice or (C) assuming compliance with the matters referred to in Section 5.1(d)(i), a violation of any Law to which the Company is subject, except, in the case of clause (B) or (C) of this Section 5.1(d)(ii), for any such breach, violation, termination, default, creation, acceleration or change that, individually or in the aggregate, is not reasonably expected to have a Company Material Adverse Effect or prevent, materially delay or materially impair the consummation of the Merger.

(e)Company Reports; Financial Statements; Sarbanes-Oxley Act.

(i)The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with the SEC pursuant to the Exchange Act or the Securities Act since December 31, 2012 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed or furnished by the Company since the Applicable Date and those

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filed or furnished by the Company subsequent to the date hereof, including any amendments thereto, the “Company Reports”).  Each of the Company Reports, at the time of its filing or being furnished, complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act and any rules and regulations promulgated thereunder applicable to the Company Reports.  As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. To the Knowledge of the Company, as of the date hereof, there are no outstanding or unresolved comments from the SEC staff with respect to the Company Reports and none of the Company Reports is the subject of ongoing SEC review or investigation. The Company has made available to Parent all comment letters received from the SEC or the SEC staff from December 31, 2014 to the date of this Agreement, and all responses thereto, other than such comment letters and responses that are available on the SEC’s Electronic Data Gathering, Analysis and Retrieval website, and Parent shall promptly make available to Parent any such comment letters and responses dated after the date of this Agreement.

(ii)Since the Applicable Date, the Company has been in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NASDAQ and all applicable rules, regulations and requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”).

(iii)Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents in all material respects or, in the case of Company Reports filed after the date hereof, will fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of its date and each of the Company’s consolidated statements of operations and comprehensive loss, changes in stockholders’ equity and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents in all material respects or, in the case of Company Reports filed after the date hereof, will fairly present in all material respects, the financial position, results of operations and cash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and year-end adjustments), in each case in accordance with U.S. generally accepted accounting principles (“GAAP”), except as may be noted therein.

(iv)(A) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act that are reasonably designed to ensure that information required to be disclosed by the Company is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents and (B) as of the date of this Agreement, the Company has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Company’s outside auditors and the audit

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committee of the board of directors of the Company (1) any material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (2) any fraud known to the Company’s management, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. Any matters described in (1) or (2) above are described in reasonable detail on Section 5.1(e)(iv) of the Company Disclosure Letter.  Any material change in internal control over financial reporting and any significant deficiency or material weakness in the design or operation of internal control over financial reporting required to be disclosed in any Company Report or in any form, report or document filed by the Company with the SEC has been so disclosed and each significant deficiency and material weakness previously so disclosed have been remediated.

(v)There are no outstanding loans or other extensions of credit made by the Company or any of its Subsidiaries to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company. The Company has not, since the enactment of the Sarbanes-Oxley Act, taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.

(vi)Each of the principal executive officer and principal financial officer of the Company (or each former principal executive officer and principal financial officer of the Company, as applicable) has made all certifications required by Rule 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 and NASDAQ, and the statements contained in any such certifications are complete and true and correct.

(vii)Section 5.1(e) of the Company Disclosure Letter describes, and the Company has made available to Parent copies of the documentation creating or governing, all securitization transactions and other off-balance sheet arrangements (as defined in Item 303 of Regulation SK of the SEC) that existed or were effected by the Company or its Subsidiaries since the Applicable Date.

(viii)Since the Applicable Date, there has been no transaction, or series of similar transactions, agreements, arrangements or understandings, nor is there any proposed transaction as of the date of this Agreement, or series of similar transactions, agreements, arrangements or understandings to which the Company or any of its Subsidiaries was or is to be a party, that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act.

(f)Absence of Certain Changes.  Other than in connection with the transactions contemplated by this Agreement, since December 31, 2014 and through the date of this Agreement, the Company and its Subsidiaries (i) have conducted their respective businesses only in, and have not engaged in any material transaction other than according to, the ordinary and usual course of such businesses and (ii) have not taken any action that would be prohibited by clauses (i), (ii), (iv)-(ix), (xi), (xvi) and(xvii) of Section 6.1(a) if taken after the date hereof and prior to the Closing.  Since December 31, 2014, there has not been any change in the

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financial condition, business or results of operations of the Company that, individually or in the aggregate, has had, and is continuing to have, a Company Material Adverse Effect.

(g)Litigation and Liabilities.

(i)There are no criminal actions, suits, claims, hearings, arbitrations, investigations or other proceedings pending or, to the Knowledge of the Company, threatened against the Company and there are no civil or administrative actions, suits, claims, hearings, arbitrations, investigations or other proceedings pending or, to the Knowledge of the Company, threatened against the Company that, taken as a whole, are reasonably likely to be material to the Company, except for those that relate solely to the transactions contemplated by this Agreement (none of which were pending or, to the Knowledge of the Company, threatened as of the date hereof).  Neither the Company nor any of its Subsidiaries is a party to or subject to the provisions of any judgment, order, writ, injunction, decree or award of any Governmental Entity specifically imposed upon the Company or any of its Subsidiaries which, individually or in the aggregate, is reasonably likely to have a Company Material Adverse Effect.

(ii)The Company does not have any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) other than liabilities and obligations (A) set forth in the Company’s consolidated balance sheet (and the notes thereto) included in the Company Reports filed prior to the date of this Agreement, (B) incurred in the ordinary course of business since December 31, 2014, (C) incurred in connection with the Merger or any other transaction or agreement contemplated by this Agreement, (D) in connection with any Permitted Lien or (E) that are not, individually or in the aggregate, reasonably expected to have a Company Material Adverse Effect.

The term “Knowledge” when used in this Agreement with respect to the Company shall mean the actual knowledge of those persons set forth in Section 5.1(g) of the Company Disclosure Letter.

As used in this Agreement, the term “ordinary course of business” shall include the taking of action with respect to the matters set forth in Section 5.1(a) of the Company Disclosure Letter and with respect to clinical trials with respect to the products and product candidates of the Company and its Subsidiaries, including costs and expenses incurred in connection therewith.

(h)Employee Benefits.  (i)  All material benefit and compensation plans, contracts, programs, policies or arrangements in respect of which the Company or any of its Subsidiaries is subject to continuing financial obligations or has or would reasonably be expected to have any liability, including, but not limited to, “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and deferred compensation, severance, stock option, restricted stock, restricted stock unit, stock purchase, stock appreciation rights, stock-based, and incentive plans (whether or not material, the “Benefit Plans”) and employment, severance, separation, retention, change in control or similar plans, contracts, programs, policies or arrangements (in each case, whether or not subject to ERISA, covering one or more Persons or written or unwritten) are listed on

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Section 5.1(h) of the Company Disclosure Letter.  With respect to each Benefit Plan listed on Section 5.1(h) of the Company Disclosure Letter, the Company has made available to Parent true and complete copies of (in each case, if applicable): (i) the Benefit Plan document (or a written description if such Benefit Plan is not set forth in a written document), (ii) the most recent summary plan description with respect to the Benefit Plan, (iii) any related trust, insurance policy or other funding vehicle (including any stop loss policy), (iv) the most recent actuarial or other valuation reports and audited financial statements, to the extent applicable, (v) all material correspondence with any Governmental Entity regarding the Benefit Plan, and (vi) the most recent determination or opinion letter received from the Internal Revenue Service (the “IRS”) with respect to each Benefit Plan intended to qualify under Section 401 of Code.

(ii)All Benefit Plans are in compliance with their terms and ERISA, the Code and other applicable Laws.  None of the Benefit Plans are maintained by the Company or any of its Subsidiaries outside of the United States primarily for the benefit of employees of the Company and its Subsidiaries working outside of the United States.  Each Benefit Plan that is subject to ERISA (an “ERISA Plan”) that is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service upon which it can rely or has applied to the IRS for such favorable determination or opinion letter under Section 401(b) of the Code, and nothing has occurred with respect each such Benefit Plan which would reasonably be expected to cause the loss of such qualification or exemption. Neither the Company nor any of its Subsidiaries has engaged in a transaction with respect to any ERISA Plan that would reasonably be expected to subject the Company or any Subsidiary to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which would be material to the Company and its Subsidiaries taken as a whole.

(iii)Neither the Company nor any entity which is considered one employer with the Company under Section 4001 of ERISA or Section 414 of the Code (an “ERISA Affiliate”) has, at any time during the last six (6) years, contributed to, been obligated to contribute to or otherwise had any liability in respect of any plan that is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, including any plan that is a “multiemployer plan” within the meaning of Section 3(37) of ERISA (a “Multiemployer Plan”), and neither the Company nor any ERISA Affiliate has incurred any liability to a Multiemployer Plan as a result of a complete or partial withdrawal (as those terms are defined in Part I of Subtitle E of Title IV of ERISA) from a Multiemployer Plan.

(iv)As of the date hereof, there is no material pending or, to the Knowledge of the Company, threatened, complaint, claim, action, charge, suit, arbitration, mediation, proceeding, audit or litigation (“Action”) relating to the Benefit Plans, other than routine claims for benefits.  Except to the extent required by Section 4980B of the Code and at the participant’s sole expense, no Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for current or former employees, directors or independent contractors (or any dependent

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thereof) of the Company or any of its Subsidiaries for periods extending beyond the termination of such person’s service with the Company and its Subsidiaries.

(v)Neither the execution of this Agreement, nor the consummation of the Merger, whether alone or in conjunction with any other event, will (A) entitle any current or former director, employee, or independent contractor of the Company or any of its Subsidiaries to severance pay or any material increase in severance pay upon any termination of employment after the date hereof (other than severance pay required by any Law) or (B) except as set forth in Section 4.3 of this Agreement, accelerate the time of payment or vesting or result in any material increase in, or funding (through a grantor trust or otherwise) of, compensation or benefits under, or result in any other material obligation pursuant to, any of the Benefit Plans.  No payment or benefit paid or provided, or to be paid or provided, whether contingent or otherwise, to any “disqualified individual” (as defined in Section 280G of the Code) of the Company or any of its Subsidiaries (including pursuant to this Agreement) will fail to be deductible for federal income tax purposes due to the application of Section 280G of the Code. No Benefit Plan or other agreement or arrangement with any Person provides for a “gross-up” or similar payment in respect of any Taxes that may become payable as result of the application of Section 409A or Section 4999 of the Code.

(i)Labor Matters.

(i)As of the date of this Agreement: (I) neither the Company nor any of its Subsidiaries is a party to or otherwise bound by, or negotiating, any collective bargaining agreement or other Contract with a labor union, or employee representative organization or works council (“Collective Bargaining Agreements”) and no employees of the Company or any of its Subsidiaries are represented by any labor union, employee representative organization or works council in connection with their employment with the Company or any of its Subsidiaries, (II) neither the Company nor any of its Subsidiaries is the subject of any proceeding, charge or complaint asserting that the Company or any of its Subsidiaries has committed an unfair labor practice or seeking to compel it or them to bargain with any labor union or labor organization and (III) there is no pending or, to the Knowledge of the Company, threatened, labor strike, material slowdown, picketing, walk-out, work stoppage or lockout involving the Company or any of its Subsidiaries; and neither the Company nor any of its Subsidiaries has experienced any such labor strike, material slowdown, picketing, walk-out, work stoppage or lockout within the past two (2) years.  No notice, consent or consultation obligations with respect to any employees of the Company or any of its Subsidiaries or any labor union, employee representative organizations or works council, will be triggered by the execution of this Agreement or the consummation of the transactions contemplated hereby.

(ii)The Company and each of its Subsidiaries are, and for the past three (3) years have been, in compliance with all applicable Laws relating to the employment and other engagement of labor (including, employment and labor standards, immigration, employee and other service provider classification (including under the Fair Labor Standards Act and similar state Laws and for purposes of eligibility to participate in Benefit Plans), the provision of and contributions to statutory benefits, labor relations

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and negotiation and consultation with employee representative bodies, occupational health and safety, human rights, workers’ compensation, severance payments and the provision of notice, employment equity, pay equity, wages, hours and medical leave), except where the failure to comply with such Laws has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. No material Action with respect to employment matters is now pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, by or before any Governmental Entity, and there is no material Action by or before any Governmental Entity with respect to a violation of any occupational safety or health standards that is now pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries.

(j)Compliance with Laws; Licenses.

(i)The businesses of each of the Company and its Subsidiaries have not been since the Applicable Date, and are not being, conducted in violation of any federal, state, local or foreign law, statute or ordinance, common law, or any rule, regulation, standard, judgment, order, writ, injunction, decree, arbitration award, agency requirement, license or permit of any Governmental Entity (collectively, “Laws”), except for violations that, individually or in the aggregate, would not reasonably be expected to be material to the Company taken as a whole.  Except with respect to regulatory matters covered by Section 6.3(g), no investigation, review or enforcement by any Governmental Entity with respect to the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews, the outcome of which would not reasonably be expected to material to the Company taken as whole.  The Company and each of its Subsidiaries has obtained and is in compliance with all permits, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except those the absence of which would not, individually or in the aggregate, reasonably be expected to be material to the Company taken as a whole.

(ii)In the past five years, none of the Company, any of its Subsidiaries, or any of their respective directors, officers, consultants, or to the Knowledge of the Company, agents or other Persons acting for or on their behalf has (i) taken any action that would result in a violation in any material respect by such Person of the Foreign Corrupt Practices Act (15 U.S.C. §§ 78m(b), 78dd-1, 78dd-2, 78ff) (the “FCPA”), The Bribery Act of 2010 of the United Kingdom, or any other applicable Law related to anti-corruption or anti-bribery (but, in each case, only to the extent such applicable Law is applicable to the foregoing Persons), (ii) made, offered to make, promised to make or authorized the payment or giving of, directly or indirectly, any unlawful payment or gift of money or anything of value prohibited under any applicable Law concerning such payments or gifts in any jurisdiction (any such payment, a “Prohibited Payment”) and (iii) to the Company’s Knowledge, been subject to any investigation by any Governmental Entity with regard to any Prohibited Payment.  The Company has instituted and maintained policies and procedures designed to prevent such

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Persons from taking such actions (but, in each case, only to the extent such applicable Law is applicable to the Company or such Persons).

(k)Material Contracts.

(i)Except for this Agreement, for any Benefit Plans, for Contracts filed as exhibits to or incorporated by reference into the Company Reports, as of the date of this Agreement, neither the Company nor its Subsidiaries is a party to any Contract:

(A)that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;

(B)that purports to limit or otherwise restrict in any material respect the ability of the Company or its Subsidiaries to compete in any business, therapeutic or geographic area (or that, following the Merger, would by its terms apply such limits or other restrictions to Parent or its Subsidiaries);

(C)under which (i) the Company or its Subsidiaries is licensed from a third party or (ii) the Company or its Subsidiaries license to a third party any Intellectual Property that is material to the continued operation of the business of the Company or its Subsidiaries, other than Contracts entered into in the ordinary course of business and Contracts with respect to Intellectual Property that is generally available on a commercial basis from third parties, including any Contracts providing for the license of software that is generally available on a commercial basis; provided that, for the purposes of this clause (C), Contracts related to the Company’s Licensing and Funded Research Program (“LFRP”) shall not be deemed to have been entered into in the ordinary course of business;

(D)(x) containing any standstill or similar agreement pursuant to which the Company or its Subsidiaries has agreed not to acquire assets or securities of another Person or (y) containing a put, call, right of first refusal or similar right pursuant to which the Company or its Subsidiaries could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $1,000,000;

(E)that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of DX-2930, which, if terminated or not renewed, would reasonably be expected to have a material and adverse effect on DX-2930;

(F)that relates to the identification, research, development or collaboration of DX-2930, in each case, that is material to the Company and its Subsidiaries taken as a whole;

(G)that provides for any stockholders, investors rights, registration rights or similar agreement or arrangement;

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(H)with any sole-source suppliers of material tangible products or services or that includes any material “most favored nations” terms and conditions (including, without limitation, with respect to pricing), any material exclusive dealing or minimum purchase arrangement;

(I)with a Collaboration Partner (as such term is defined below) that (x) requires aggregate payments by or to the Company and its Subsidiaries of $500,000 or more in the current or any future calendar year or (y) cannot be unilaterally terminated by the Company or any of its Subsidiaries without penalty without more than 30 days’ notice (excluding incidental provisions, including indemnities, that by their terms survive the termination of the relevant agreement);

(J)that requires aggregate payments by or to the Company and its Subsidiaries in excess of $500,000 on an annual basis;

(K)pursuant to which the Company or any of its Subsidiaries has continuing obligations or interests involving (x) milestone or similar payments, including upon the achievement of regulatory or commercial milestones, or (y) payment of royalties or other amounts calculated based upon any revenues or income of the Company or any of its Subsidiaries, in each case that cannot be unilaterally terminated by the Company or its Subsidiaries without penalty without more than 30 days’ notice (excluding incidental provisions, including indemnities, that by their terms survive the termination of the relevant agreement);

(L)under which the Company or any of its Subsidiaries leases, subleases or licenses any real property;

(M)that relates to any swap, forward, futures, warrant, option or other derivative transaction;

(N)that provides for indemnification of any current or former officer, director or employee;

(O)for acquisition, sale or similar transactions pursuant to which (x) the Company (together with its Subsidiaries) is required to pay total consideration (including assumption of debt) in the current or any future calendar year in excess of $500,000 in the aggregate or (y) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries (or any interests therein) in the current or any future calendar year with a fair market value or purchase price of more than $500,000 in the aggregate;

(P)relating to indebtedness for borrowed money, any guarantees thereof (other than (x) Contracts solely among the Company and its wholly owned Subsidiaries and (y) financial guarantees entered into in the ordinary course of business consistent with past practice and surety or performance bonds or similar agreements entered into in the ordinary course of business consistent with past practice, in each case relating to indebtedness in existence on the date of this Agreement) or the granting of

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Liens (other than Permitted Liens) over the property or assets (including any Intellectual Property) of the Company or any of its Subsidiaries;

(Q)relating to any loan or other extension of credit (other than trade credits and accounts receivable in the ordinary course of business consistent with past practice) made by the Company or any of its Subsidiaries;

(R)that would prevent, materially delay or materially impede the Company’s ability to consummate the Merger;

(S)that is between the Company or its Subsidiaries and any of their respective directors or officers or any Person beneficially owning five percent (5%) or more of the outstanding Shares; or

(T)that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time.

Each such Contract described in clauses (A) through (T) above of this Section 5.1(k)(i) or excluded therefrom due to the exception of being filed as an exhibit to the Company Reports is referred to herein as a “Material Contract.”

(ii)Each of the Material Contracts is valid and binding on the Company or its Subsidiaries and, to the Knowledge of the Company, each other party thereto and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that, individually or in the aggregate with other such failures, would not reasonably be expected to have a Company Material Adverse Effect.  None of the Company, its Subsidiaries or, to the Knowledge of the executive officers of the Company, any other party, is in default under any Material Contract, in each case except for such defaults that, individually or in the aggregate with other such defaults, would not reasonably be expected to have a Company Material Adverse Effect. True, unredacted and complete copies of all of the Material Contracts have been made available to Parent.

(l)Real Property.

(i)Neither the Company nor any of its Subsidiaries owns any real property.

(ii)The Company and its Subsidiaries have either good title, in fee or valid leasehold, easement or other rights, to the land, buildings, wires, pipes, structures and other improvements thereon and fixtures thereto, necessary to permit the Company and its Subsidiaries to conduct their business as currently conducted free and clear of any Liens other than Permitted Liens.

For the purpose of this Agreement, “Permitted Liens” shall mean (i) statutory Liens for Taxes, special assessments or other governmental or quasi-governmental charges that (a) are not yet due and payable or which may hereafter be paid without penalty or the amount or (b) the validity of which is being contested in good faith by appropriate proceedings, in each

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case of (a) and (b), for which sufficient reserves have been established in the financial statements and books and records of the Company in accordance with GAAP, (ii) landlords’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, carriers’ or similar Liens that relate to obligations not due and payable and arise in the ordinary course of business, (iii) Liens incurred or deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance, old-age pension programs mandated under applicable Laws or other social security regulations, (iv) zoning, building, entitlement and other land-use regulations promulgated by Governmental Entities, (v) the interests of the lessors and sublessors of any leased properties, and (vi) easements, rights-of-way and other imperfections of title or encumbrances that do not materially interfere with the present use of, or materially detract from the value of, the property related thereto.

(m)Takeover Statutes.  Other than Section 203 of the DGCL, no “fair price,” “moratorium,” “control share acquisition” or other similar anti-takeover statute or regulation enacted under state or federal Laws in the United States (each, a “Takeover Statute”) or any anti-takeover provision in the Company’s certificate of incorporation or bylaws is applicable to the Company, the Shares or the Merger.  Assuming the accuracy of the representations and warranties of Parent Holdco, Parent and Merger Sub set forth in Section 5.2, the board of directors of the Company has taken all necessary action such that the restrictions imposed on business combinations by Section 203 of the DGCL are inapplicable to this Agreement.  The Company has no “rights plan,” “rights agreement,” or “poison pill” in effect.

(n)Environmental Matters.  Except for such matters that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect: (A) the Company and its Subsidiaries have been in substantial compliance with applicable Environmental Laws since the Applicable Date; (B) the Company and its Subsidiaries possess all permits, licenses, registrations, identification numbers, authorizations and approvals required under applicable Environmental Law for the operation of the business as presently conducted; (C) neither the Company nor any Subsidiary has received any written claim, notice of violation or citation concerning any violation or alleged violation of any applicable Environmental Law since December 31, 2013 which has not been resolved; and (D) there are no writs, injunctions, decrees, orders or judgments outstanding, or any judicial actions, suits or proceedings pending or, to the Knowledge of the Company, threatened, concerning compliance by the Company or any Subsidiary with any Environmental Law.

As used herein, the term “Environmental Law” means any applicable law, regulation, code, license, permit, order, judgment, decree or injunction from any Governmental Entity concerning (A) the protection of the environment (including air, water, soil and natural resources) or (B) the use, storage, handling, release or disposal of Hazardous Substances, in each case as in effect on the date of this Agreement.

As used herein, the term “Hazardous Substance” means any substance presently listed, defined, designated or classified as hazardous, toxic or radioactive under any applicable Environmental Law, including petroleum and any derivative or by-products thereof.

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(o)Taxes.

(i)(A) The Company and each of its Subsidiaries have prepared in good faith and duly and timely filed (taking into account any extension of time within which to file) all material Tax Returns required to be filed by any of them, and all such filed Tax Returns are true, correct and complete in all material respects; and (B) have paid all Taxes that are shown as due on such filed Tax Returns.

(ii)Except as would not have a Company Material Adverse Effect, the Company and each of its Subsidiaries:

(A)have complied with all applicable Laws, rules, and regulations relating to the payment and withholding of Taxes with respect to amounts owing to any employee, independent contractor, stockholder, creditor or third party within the time and in the manner prescribed by Law;

(B)have not waived any statute of limitations with respect to any Taxes or agreed to any extension of time with respect to any Tax assessment or deficiency, which waiver or extension is currently effective, other than in connection with an extension of time for filing a Tax Return and the Company has identified to Parent in writing any such Tax Return to which an extension has been filed outside of the ordinary course of business and the relevant Tax Return is yet to be filed;

(C)have no pending or threatened audits, examinations, or assessments (or other similar proceedings initiated by a Governmental Entity) in respect of Taxes or Tax matters to which the Company is a party;

(D)have not constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for Tax-free treatment under Section 355 of the Code within the past two (2) years;

(E)are not and have not been a party to any Tax Sharing Agreement (other than an agreement exclusively between or among the Company and its Subsidiaries or among the Company’s Subsidiaries) pursuant to which it will have any obligation to make any payments for Taxes after the Effective Time and have no liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Law) or as transferee or successor;

(F)have no Liens for Taxes upon any property or assets of the Company or any of its Subsidiaries, other than Permitted Liens; and

(G)do not participate and have not participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b).

As used in this Agreement, (A) the term “Tax” (including, with correlative meaning, the term “Taxes”) includes all federal, state, local and foreign income, profits,

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franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value-added, occupancy and other taxes, governmental charges, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions, (B) the term “Tax Return” includes all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns) required to be supplied to a Tax authority relating to Taxes, and (C) the term “Tax Sharing Agreements” means all agreements binding a party or any of its subsidiaries that provide for the allocation, apportionment, sharing or assignment of any Tax liability or benefit (excluding any indemnification agreement or arrangement pertaining to the sale or lease of assets or subsidiaries and any commercially reasonable indemnity, sharing or similar agreements or arrangements where the inclusion of a Tax indemnification or allocation provision is customary or incidental to an agreement the primary nature of which is not Tax sharing or indemnification).

(p)Intellectual Property.

(i)Section 5.1(p)(i) of the Company Disclosure Letter lists all material (A) Patents included in the Company Intellectual Property and (B) Trademarks included in the Company Intellectual Property that are the subject of a registration or a pending application for registration (collectively, the “Scheduled Intellectual Property”) specifying as to each such item, as applicable, (1) the owner of such item, (2) the jurisdiction in which such item is issued or registered or in which any application for issuance or registration has been filed, (3) the respective issuance, registration, or application number of such item, and (4) the date of application and issuance or registration of such item.  The Scheduled Intellectual Property is (x) subsisting and solely with respect to the issued patents and registered Trademarks included therein, to the Knowledge of the Company, valid and enforceable, (y) is not subject to any Liens (other than Permitted Liens and non-exclusive licenses granted in the ordinary course of business) and (z) is not subject to any outstanding order, judgment or decree adversely affecting the Company’s or its Subsidiaries’ use thereof or rights thereto, except for such exceptions with respect to any of the foregoing that, individually or in the aggregate with other such exceptions, would not reasonably be expected to have a Company Material Adverse Effect.

(ii)To the Knowledge of the Company, (A) the Company, or one or more of its Subsidiaries, owns or is authorized to use all Intellectual Property that is used in the operation of the businesses of the Company and its Subsidiaries as currently conducted, and (B) the Surviving Corporation will own or be authorized to use all such Intellectual Property immediately following the transaction contemplated by this Agreement, except, in each case of (A) or (B), for such failures to have such rights which are not, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect.  For the avoidance of doubt, this Section 5.1(p)(ii) shall not constitute or be deemed to be a representation or warranty regarding non-infringement, non-misappropriation or non-violation of any Intellectual Property rights of any Person.

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(iii)To the Knowledge of the Company, since the Applicable Date, (A) neither the Company nor its Subsidiaries has infringed, misappropriated or otherwise violated the Intellectual Property rights of any third party, and (B) no Person is infringing, misappropriating, or otherwise violating any Company Intellectual Property rights, except, in each case of (A) or (B), for such exceptions that, individually or in the aggregate with other such exceptions, would not reasonably be expected to have a Company Material Adverse Effect.

(iv)To the Knowledge of the Company, as of the date of this Agreement, the Company or one or more of its Subsidiaries owns or has the right to use all Intellectual Property that is used in the conduct of their respective businesses as currently conducted.  For the avoidance of doubt, the representations and warranty provided in this Section 5.1(p)(iv) is not intended to be and shall not be construed as a representation or warranty regarding the non-infringement, non-misappropriation or non-violation of the Intellectual Property of any third party, the sole and exclusive representation and warranty for which is provided in Section 5.1(p)(iii).

(v)There is no pending or, to the Knowledge of the Company, threatened in writing action, suit, proceeding or claim by others that the Company or its Affiliates infringe, misappropriate or otherwise violate any Intellectual Property of any Person.

(vi)Neither the Company nor any of its Subsidiaries has granted any third party any right to enforce, sue on, or collect damages for the infringement of any Scheduled Intellectual Property.

(vii)Neither the Company nor any of its Affiliates has received any written notice of any threatened, actual, or pending claim, order, action, suit, or proceeding with respect to the Scheduled Intellectual Property, including, but not limited to any litigation, interference, reissue, reexamination, post-grant, inter partes review, or opposition proceeding; there is no pending or, to the Knowledge of the Company, threatened in writing claim, order, action, suit, or proceeding, including, but not limited to any litigation, interference, reissue, reexamination, post-grant, inter partes review, or opposition proceeding, by any Person challenging the Company’s and its Affiliates’ rights in or to any of the Scheduled Intellectual Property; and there is no pending or, to the Knowledge of the Company, threatened in writing claim, order, action, suit, or proceeding, including, but not limited to any litigation, interference, reissue, reexamination, post-grant, inter partes review, or opposition proceeding by others challenging the validity, enforceability or scope of any of the Scheduled Intellectual Property.

(viii)The Company and its Affiliates have not entered into any Contract granting any Person the right to control the prosecution of any of the Patents within the Scheduled Intellectual Property.

(ix)All current and former employees and consultants of the Company and its Affiliates who are or have been substantively involved in the design or

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development of the product(s) marketed or under development by the Company or its Affiliates have executed written Contracts or are otherwise obligated to assign to the Company or one of its Affiliates exclusive ownership of all of the Scheduled Intellectual Property.

(x)To the Knowledge of the Company, all of those who owe any duty of candor, disclosure, and good faith to the U.S. Patent and Trademark Office with respect to the Patents within the Scheduled Intellectual Property have fully complied with such duties with respect to such Patents under all applicable laws, including 37 C.F.R. § 1.56.

(xi)To the Knowledge of the Company, inventorship of the inventions claimed in the Patents within the Scheduled Intellectual Property is properly identified on such Patents.

(xii)The Company and its Subsidiaries have taken commercially reasonable measures to protect the confidentiality of the Trade Secrets included in the Company Intellectual Property.  To the Knowledge of the Company, such Trade Secrets have not been disclosed to any Person except pursuant to written non-disclosure agreements, except for any disclosures that, individually or in the aggregate with other such disclosures, would not reasonably be expected to have a Company Material Adverse Effect.

(xiii)As of the date of this Agreement, the Company has not used any know-how or materials from Cambridge Antibody Technologies Limited, MedImmune Limited, or any of their respective Affiliates in connection with the design or development any material product(s) marketed or under development by the Company or its Affiliates.

(xiv)Notwithstanding any other provision of this ARTICLE V, the representations and warranties contained in this Section 5.1(p) constitute the sole and exclusive representations and warranties of the Company regarding infringement, misappropriation or other violation of any Intellectual Property of any Person.

(xv)For purposes of this Agreement, the following terms have the following meanings:

“Company Intellectual Property” means all Intellectual Property owned by the Company or any of its Subsidiaries.

“Intellectual Property” means all (A) registered and unregistered trademarks, service marks, certification marks, trade names, Internet domain names, trade dress and other indicia of source or origin, any applications and registrations for the foregoing and the renewals thereof, and all goodwill associated therewith and symbolized thereby (collectively, “Trademarks”); (B) national, convention, and multinational patents and patent applications issued or applied for in any jurisdiction, including any certificates of invention, provisionals, nonprovisionals, divisions, revisions, supplementary protection certificates, continuations, continuations-in-part, reissues, patents of addition, term

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restorations, term adjustments, renewals, re-examinations, substitutions and extensions thereof (collectively, “Patents”); (C) trade secrets, including know-how, information, data, specifications, methods, procedures, tests, knowledge, experience, formulae, skills, techniques, schematics, drawings, blue prints, plans, designs, diagrams, sketches, inventions, discoveries, research tools, algortithms and improvements, including manufacturing information and processes, assays, engineering and other manuals and drawings, standard operating procedures, flow diagrams, formulations, studies, practices, sourcing information, in each case, to the extent qualifying as a trade secret under applicable Law (collectively, “Trade Secrets”); and (D)  copyrights, including copyrights, whether registered or not, in all published and unpublished works of authorship and any registrations and applications, and renewals, extensions, restorations and reversions thereof, moral rights, database rights and design rights.

(q)Insurance.  All material property damage (fire, malicious, accidental, flood, sprinkler and water damages), general liability, business interruption, clinical trial liability, worker’s compensation, automobile, directors and officers and product liability insurance policies maintained by the Company or any of its Subsidiaries (“Insurance Policies”) are in full force and effect, are reasonably adequate for the businesses engaged in by the Company and its Subsidiaries, are in conformity in all material respects with the requirements of all leases or other agreements to which the Company or its applicable Subsidiary is a party and, to the Knowledge of the Company, are valid and enforceable in accordance with their terms and all premiums due with respect to all Insurance Policies have been paid as of the date of this Agreement, with such exceptions that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.  The Company and its Subsidiaries are in material compliance with the terms and conditions of the Insurance Policies, have not received any notice of termination or material change to the terms (including any premiums) of any Insurance Policy and have notified their respective insurers of all material claims in accordance with the applicable provisions in the policy terms and conditions, and no material insurance claim made by the Company or its Subsidiaries has been questioned, denied or disputed. The Company has made available to Parent all material underwriting information and true, unredacted and complete copies of all of the Insurance Policies.

(r)Regulatory Matters.

(i)Each of the Company and its Subsidiaries has all Licenses necessary to conduct its business as presently conducted, including all such Licenses of the United States Food and Drug Administration (the “FDA”) or any other applicable U.S. or foreign drug regulatory authority (collectively with the FDA, the “Regulatory Authorities”) necessary to conduct its business as presently conducted (collectively, the “Regulatory Licenses”), except those Licenses the absence of which, individually or in the aggregate with other such absences, would not reasonably be expected to have a Company Material Adverse Effect and would not reasonably be expected to prevent, materially delay or materially impair the consummation of the transactions contemplated hereby.  There has not occurred any revocation or termination of any Regulatory License, or any material impairment of the rights of the Company or its Subsidiaries under any Regulatory License, except for any such revocation, termination or impairment that, individually or in the aggregate with other such revocations, terminations and

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impairments, would not reasonably be expected to have a Company Material Adverse Effect.  Each of the Company and its Subsidiaries has operated in compliance in all material respects with applicable Laws administered or enforced by the FDA or any other Regulatory Authority, except where the failure so to comply, individually or in the aggregate with other such failures, would not reasonably be expected to have a Company Material Adverse Effect.

(ii)Since January 1, 2009, all preclinical studies and clinical trials, and other studies and tests conducted by or, to the Knowledge of the Company, on behalf of the Company or its Subsidiaries have been and, if still pending, are being conducted in compliance with all applicable Laws (including those pertaining to Good Laboratory Practice and Good Clinical Practice contained in 21 C.F.R. Part 58 and Part 312 and all applicable requirements relating to protection of human subjects contained in 21 C.F.R. Parts 50, 54 and 56), except for noncompliances that, individually or in the aggregate with other such noncompliances, would not reasonably be expected to have a Company Material Adverse Effect.  Since January 1, 2009, except for such exceptions that, individually or in the aggregate with other such exceptions, would not reasonably be expected to have a Company Material Adverse Effect, no clinical trial conducted by or, to the knowledge of the executive officers of the Company, on behalf of the Company or its Subsidiaries has been terminated or suspended prior to completion for safety or other non-business reasons, and neither the FDA nor any other applicable Regulatory Authority, clinical investigator that has participated or is participating in, or institutional review board that has or has had jurisdiction over, a clinical trial conducted by or, to the Knowledge of the Company, on behalf of the Company or its Subsidiaries has commenced, or, to the Knowledge of the Company, threatened to initiate, any action to place a clinical hold order on, or otherwise terminate, materially delay or suspend, any ongoing clinical investigation conducted by or, to the Knowledge of the Company, on behalf of the Company or its Subsidiaries.

(iii)Since January 1, 2009, (A) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any of their officers, directors, employees or agents has been convicted of any crime or engaged in any conduct that in any such case has resulted, or is reasonably likely to result, in debarment under 21 U.S.C. Section 335a and (B) neither the Company nor any of its Subsidiaries has hired any employee under debarment or used a vendor that, to the Knowledge of the Company, employed any person under debarment.

(iv)The Company has made available to Parent complete and correct copies of each Investigational New Drug Application, each similar state or foreign regulatory filing made on behalf of the Company or its Subsidiaries, including all related supplements, amendments and annual reports, and all correspondence between the Company and any of its Affiliates on one hand and any Regulatory Authority on the other hand.

(v)Since January 1, 2009 to the date of this Agreement, each medicinal or pharmaceutical product that is or has been researched, developed, manufactured, labeled, supplied, promoted, co-promoted, co-developed, co-marketed,

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tested, distributed, marketed, commercialized or sold by or on behalf of the Company or any of its Subsidiaries (each, a “Medicine”) is being done so in compliance with all applicable Health Laws, except for any noncompliance that has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.  For the purpose of this Agreement, “Health Law” means any applicable Law of any Governmental Entity (including multi-country organizations) the purpose of which is to ensure the quality, identity, strength, purity, potency, safety, efficacy and use of medicinal and pharmaceutical products by regulating the research, development, manufacturing, advertising and distribution of these products, including applicable Law relating to good laboratory practices, good clinical practices, investigational use, product marketing authorization, manufacturing facilities compliance and approval, good manufacturing practices, labeling, advertising, promotional practices, safety surveillance, record keeping and filing of required reports, including the U.S. Food, Drug and Cosmetic Act of 1938, the Public Health Service Act, the associated rules and regulations promulgated and guidances issued thereunder and all of their foreign equivalents.

(vi)Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, since January 1, 2009 to the date of this Agreement, none of the Company, any of its Subsidiaries or, to the Knowledge of the Company, any partner or any other Person (other than Parent Holdco, Parent or any of its Affiliates) which pursuant to a Contract with the Company or any of its Subsidiaries co-develops, co-promotes, co-markets or otherwise has a license to develop, market or sell any Medicine of the Company or any of its Subsidiaries (any such Person, a “Collaboration Partner”) has received any written notice or other communication from any Health Authority (I) withdrawing approval of any Medicine of the Company or any of its Subsidiaries or placing on “clinical hold” any clinical trial sponsored by the Company or any of its Subsidiaries or (II) alleging any violation of any Health Law with respect to the research, development, marketing, manufacturing or distribution of any Medicine. Since January 1, 2009 and through the date hereof, neither the Company nor any of its Subsidiaries has received any notices of inspectional observations (including those reported on Form FDA 483), establishment inspection reports, warning letters, action letters or untitled letter, recalls, field notifications, market withdrawals or replacements, written warnings, “dear doctor” letters, investigator notices, safety alerts, post-approval “serious adverse event” reports or other material written notice of action relating to an alleged lack of safety or regulatory compliance except for those reports, letters or notices that would not reasonably be expected to have a Company Material Adverse Effect. For the purpose of this Agreement, “Health Authority” means the Governmental Entities which administer Health Laws including the FDA, the European Medicines Agency and other equivalent agencies.

(vii)Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, since January 1, 2009:

(A)none of the Company, any of its Subsidiaries or, to the Knowledge of the Company, any of their respective Collaboration Partners has received any written notice that the FDA or any other Governmental Entity has initiated or is considering

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initiating any steps, procedures or action to withdraw approval or the license for, suspend, detain, discontinue the development, manufacture, distribution, marketing, offering for sale or sale of, or reimbursement for, request the recall or field correction of, or take any enforcement action with respect to, any Medicine;

(B)the Company and its Subsidiaries have complied with all applicable Laws governing the preparation of, and submission to the applicable Governmental Entities of, any investigational new drug application (“IND”), new drug application (“NDA”), biologics license application (“BLA”), other clinical trial application or regulatory approval application, or foreign equivalent thereof relating to any Medicine;

(C)each IND, NDA, BLA, other clinical trial application or regulatory approval application, or foreign equivalent thereof relating to any Medicine has been approved or permitted to become effective by the relevant Governmental Entity or, if not effective, to the Knowledge of the Company, as of the date hereof, there are no facts which have led the Company or its Subsidiaries to believe, and the Company and its Subsidiaries have not received written notice from any Governmental Entity that, such IND, NDA, BLA, other clinical trial application or regulatory approval application, or foreign equivalent thereof is not in good standing or is unapprovable; and

(D)neither the Company nor any of its Subsidiaries has received any written notice from any Governmental Entity threatening, initiating, or commencing any action to enjoin production of any Medicine at any facility and, to the Knowledge of the Company, there are no facts which could form the basis for such an action.

(viii)None of the Company, any of its Subsidiaries, nor to Knowledge of the Company, any of their respective officers, employees or agents (authorized to speak on behalf of the Company), has made an untrue statement of a material fact or fraudulent statement to any Health Authority, failed to disclose a material fact required to be disclosed to any Health Authority, or committed an act, made a statement, or failed to make a statement, including with respect to any scientific data or information, that, at the time such disclosure was made or failure to disclose occurred, would reasonably be expected to provide a basis for the FDA to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities,” set forth in 56 Fed. Reg. 46191 (September 10, 1991), or for any other Health Authority to invoke any similar policy, except for any act or disclosure or failure to disclose that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(ix)There are no pending or, to the Knowledge of the Company, threatened filings of an action against the Company or any of its Subsidiaries relating to the Company or any Medicine under any federal or state whistleblower statute, including under the False Claims Act of 1863 (31 U.S.C. § 3729 et seq.).

(x)None of the Company, any of its Subsidiaries, nor to the Knowledge of the Company, any of their respective officers, employees or agents has been convicted of any crime for which any Person could be excluded from participating

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in any federal health care program under Section 1128 of the Social Security Act of 1935 or is, to the Knowledge of the Company, the target or subject of any current investigation relating to any U.S. federal or state health care program related offense or foreign equivalent thereof.

(xi)Neither the Company nor any of its Subsidiaries, is party to any corporate integrity agreement, monitoring agreements, deferred prosecution agreement, consent decree or settlement order or other similar written agreements with or imposed by any Governmental Entity or has had a civil monetary penalty assessed against it under Section 1128A of the Social Security Act of 1935, codified at Title 42, Chapter 7, of the United States Code and, to the Knowledge of the Company, no such action is currently contemplated or pending.

(xii)Since January 1, 2009, none of the Company, any of its Subsidiaries, or, to the Knowledge of the Company, any of their respective agents has failed to comply with any applicable security and privacy standards regarding protected health information under the Health Insurance Portability and Accountability Act of 1996 (18 U.S.C. Section 3801 et. seq.) or foreign equivalent in any other jurisdiction in which any Medicine is sold, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(s)Brokers and Finders.  Neither the Company nor any of its officers, directors or employees has employed any broker or finder or incurred any liability for any brokerage fees, commissions or finders’ fees in connection with the Merger except that the Company has employed Centerview Partners LLC as its financial advisor. The Company previously has provided or made available to Parent a copy of the engagement letter with Centerview Partners LLC and the fees set forth therein are the only fees payable to them.

(t)Opinion of Financial Advisor.  The board of directors of the Company has received the opinion of its financial advisor, Centerview Partners LLC, that as of the date of such opinion, and based upon and subject to the various assumptions made, procedures followed, matters considered, and qualifications and limitations on the review undertaken in preparing such opinion as set forth therein, consideration, consisting of the Per Share Cash Consideration, together (and not separately) with one CVR, to be paid to the holders of Shares (other than Excluded Shares and Shares held by affiliates of Parent) pursuant to this Agreement is fair from a financial point of view, to such holders.  It is agreed and understood that such opinion is for the benefit of the Company’s board of directors and may not be relied on by Parent Holdco, Parent or Merger Sub; provided, however, the Company shall forward to Parent, solely for informational purposes, a copy of the written version of such opinion promptly following the execution of this Agreement and in no event later than three (3) business days after the date of this Agreement.

(u)Information Supplied.  None of the information included or incorporated by reference in the Proxy Statement will, at the time the Proxy Statement is (i) filed with the SEC or first published, amended or supplemented and (ii) sent or given to the Company’s stockholders, contain any statement that, in light of the circumstances under which it is made, is false or misleading with respect to any material fact or omits to state any material fact required to

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be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not false or misleading, except that no representation or warranty is made by the Company with respect to statements made or incorporated by reference in the Proxy Statement based on information supplied by Parent Holdco, Parent or Merger Sub specifically for inclusion or incorporation by reference therein.  The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act.

5.2Representations and Warranties of Parent Holdco, Parent and Merger Sub.  Parent Holdco, Parent and Merger Sub each hereby represents and warrants to the Company that:

(a)Organization, Good Standing and Qualification.  Each of Parent Holdco, Parent and Merger Sub is a legal entity duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except where the failure to be so organized or in such good standing, or to have such power or authority, would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or impair the ability of Parent and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement and the CVR Agreement.  Parent Holdco owns, directly or indirectly, one hundred percent (100%) of the issued and outstanding capital stock of Parent.

(b)Corporate Authority.  No vote of holders of capital stock of Parent Holdco or Parent is necessary to approve this Agreement, the CVR Agreement, the Merger and the other transactions contemplated hereby and thereby.  Each of Parent Holdco, Parent and Merger Sub has all requisite corporate power and authority and has taken all corporate action necessary in order to execute, deliver and perform its obligations under this Agreement and the CVR Agreement, subject only to the adoption of this Agreement by Parent as the sole stockholder of Merger Sub, which will occur immediately following the execution of this Agreement, and to consummate the Merger and the other transactions contemplated by this Agreement.  This Agreement has been duly executed and delivered by each of Parent Holdco, Parent and Merger Sub and is a valid and binding agreement of Parent Holdco, Parent and Merger Sub, enforceable against each of Parent Holdco, Parent and Merger Sub in accordance with its terms, subject to the Bankruptcy and Equity Exception.  The CVR Agreement, when executed and delivered by Parent Holdco, will be a valid and binding agreement of Parent Holdco, enforceable against Parent Holdco in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(c)Governmental Filings and Approvals; No Violations; Etc.

(i)Other than the filings, approvals and/or notices (A) pursuant to Section 1.3, (B) under the Securities Act, the Exchange Act and foreign and state securities, takeover and “blue sky” Laws, including the registration of the CVR Agreement under Jersey Law, if necessary and (C) under the HSR Act, no notices, reports or other filings are required to be made by Parent Holdco, Parent or Merger Sub with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by Parent Holdco, Parent or Merger Sub from, any Governmental Entity in connection with the execution, delivery and performance of this Agreement and the CVR

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Agreement by Parent Holdco, Parent and Merger Sub and the consummation by Parent Holdco, Parent and Merger Sub the Merger and the other transactions contemplated hereby and thereby.

(ii)The execution, delivery and performance of this Agreement and the CVR Agreement by Parent Holdco, Parent and Merger Sub do not, and the consummation by Parent Holdco, Parent and Merger Sub of, the Merger and the other transactions contemplated hereby and thereby will not, constitute or result in (A) a breach or violation of, or a default under, the certificate of incorporation, certificate of formation or bylaws or comparable governing documents of Parent Holdco, Parent or Merger Sub or the comparable governing instruments of any of its Subsidiaries; (B) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) or a default under, the creation or acceleration of any obligations or the creation of a Lien on any of the assets of Parent Holdco or any of its Subsidiaries pursuant to, any Contracts binding upon Parent Holdco, or any of its Subsidiaries or any Laws or governmental or non-governmental permit or license to which Parent Holdco, or any of its Subsidiaries is subject; or (C) any change in the rights or obligations of any party under any of such Contracts, except, in the case of clause (B) or (C) above of this Section 5.2(c)(ii), for any breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially impair or materially delay the ability of Parent Holdco, Parent or Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement.

(d)Litigation.  As of the date of this Agreement, there are no civil, criminal or administrative actions, suits, claims, hearings, investigations or proceedings pending or, to the knowledge of the officers of Parent Holdco or Parent, threatened against Parent Holdco, Parent or Merger Sub that seek to enjoin, or would reasonably be expected to have the effect of preventing, making illegal, or otherwise interfering with any of the transactions contemplated by this Agreement, except as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Parent Holdco, Parent and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement.

(e)Available Funds.  Parent will have available to it at the Effective Time all funds necessary for the payment to the Paying Agent of the aggregate Per Share Cash Consideration.

(f)Capitalization of Merger Sub.  The authorized capital stock of Merger Sub consists solely of 1,000 shares of common stock, par value $0.001 per share, all of which are validly issued and outstanding.  All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned by Parent or a direct or indirect wholly owned Subsidiary of Parent (free and clear of all Liens).  Merger Sub has not conducted any business prior to the date hereof and has no, and prior to the Effective Time will have no, assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to this Agreement and the Merger and the other transactions contemplated by this Agreement.

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(g)Brokers.  No agent, broker, finder or investment banker is entitled to any brokerage, finders’ or other fee or commission in connection with the Merger or any other transactions contemplated by this Agreement based upon arrangements made by or on behalf of Parent Holdco, Parent or Merger Sub for which the Company would have any liability.

(h)Ownership of Shares.  Other than as a result of this Agreement, none of Parent Holdco, Merger Sub or any of their Affiliates is, or at any time during the last three (3) years has been, an “interested stockholder” (as defined in Section 203 of the DGCL) of the Company.

(i)Information Supplied.  None of the information supplied by Parent Holdco, Parent or Merger Sub in writing specifically for inclusion or incorporation by reference in the Proxy Statement will, at the time the Proxy Statement is (i) filed with the SEC or first published, amended or supplemented or (ii) sent or given to the Company’s stockholders, contain any statement that, in light of the circumstances under which it is made, is false or misleading with respect to any material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not false or misleading.

(j)Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans.  In connection with the due diligence investigation of the Company by Parent Holdco, Parent and Merger Sub, Parent Holdco, Parent and Merger Sub have received and may continue to receive from the Company certain estimates, projections, forecasts and other forward-looking information, as well as certain business plan and cost-related plan information, regarding the Company, its Subsidiaries and their respective businesses and operations.  Parent Holdco, Parent and Merger Sub hereby acknowledge that there are uncertainties inherent in attempting to make such estimates, projections, forecasts and other forward-looking statements, with which Parent Holdco, Parent and Merger Sub are familiar, that, assuming the absence of fraud, Parent Holdco, Parent and Merger Sub are taking full responsibility for making their own evaluation of the adequacy and accuracy of all estimates, projections, forecasts and other forward-looking information, as well as such business plans and cost-related plans, so furnished to them (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, forward-looking information, business plans or cost-related plans), and that, in the absence of fraud, Parent Holdco, Parent and Merger Sub will have no claim against the Company or any of its Subsidiaries, or any of their respective stockholders, directors, officers, employees, Affiliates, advisors, agents or representatives, or any other Person, with respect thereto.  Accordingly, in the absence of fraud and except as expressly set forth in the representations and warranties of the Company included in Section 5.1, Parent Holdco, Parent and Merger Sub hereby acknowledge that neither the Company nor any of its Subsidiaries, nor any of their respective stockholders, directors, officers, employees, Affiliates, advisors, agents or representatives, nor any other Person, has made or is making any representation or warranty with respect to such estimates, projections, forecasts, forward-looking statements, business plans or cost-related plans (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, forward-looking statements, business plans or cost-related plans).

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ARTICLE VI

Covenants

6.1Interim Operations.

(a)The Company covenants and agrees as to itself and its Subsidiaries that, from the date hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing (such approval not to be unreasonably withheld, delayed or conditioned)), except as otherwise expressly contemplated or permitted by this Agreement or as required by a Governmental Entity or applicable Laws, the business of it and its Subsidiaries shall be conducted in all material respects in the ordinary course of business consistent with past practice and, to the extent consistent with the foregoing, the Company and its Subsidiaries shall use their respective commercially reasonable efforts to (u) preserve their business organizations substantially intact, (v) maintain satisfactory relationships with Governmental Entities, customers and suppliers, and (w) keep available the services of their key employees, key consultants and executive officers, (x) in connection with any and all clinical trial(s) for DX-2930, notify Parent (i) promptly after receipt of any material communication from any Regulatory Authority or inspections of any manufacturing, research and development or clinical trial site and before giving any material submission to a Regulatory Authority and (ii) a reasonable time prior to making any material change to a study protocol, adding new trials, making any material change to a manufacturing plan or process, or making a material change to the development timeline, and (z) preserve and protect the Intellectual Property owned by the Company and its Subsidiaries; provided, however, that no action taken by the Company or its Subsidiaries with respect to matters specifically addressed by clauses (i)-(xvii) of this Section 6.1(a) shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision.  From the date of this Agreement until the Effective Time, except (A) as otherwise expressly contemplated or permitted by this Agreement, (B) as Parent may approve in writing, (C) as is required by applicable Law or any Governmental Entity or (D) as set forth in Section 6.1(a) of the Company Disclosure Letter, the Company will not and will not permit its Subsidiaries to:

(i)adopt any change in its certificate of incorporation or bylaws or other applicable governing instruments, other than, in the case of its Subsidiaries, in a manner that would not materially restrict the operation of its business;

(ii)(x) merge or consolidate the Company or any of its Subsidiaries with any other Person or (y) adopt a partial or complete plan of dissolution, liquidation, consolidation, recapitalization, restructuring or other reorganization of the Company or its Subsidiaries;

(iii)issue, sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of capital stock of the Company or any of its Subsidiaries (other than the issuance of Shares upon (x) the exercise or vesting, as applicable, of Company Options or Company RSUs outstanding as of the date hereof or in compliance with this Agreement or (y) in connection with the ESPP in compliance with this Agreement), or securities convertible or exchangeable into or exercisable for any shares

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of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities;

(iv)make any loans, advances or capital contributions to or investments in any Person (other than the Company or any direct or indirect wholly owned Subsidiary of the Company) in excess of $1,000,000 in the aggregate;

(v)declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for dividends paid by any direct or indirect wholly owned Subsidiary to the Company or to any other direct or indirect wholly owned Subsidiary) or enter into any agreement with respect to the voting of its capital stock;

(vi)reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock (other than the retention or acquisition of any Shares tendered by current or former employees or directors in order to pay Taxes in connection with the exercise or vesting, as applicable, of Company Options or Company RSUs or in connection with the ESPP in the ordinary course of business consistent with past practice);

(vii)incur any indebtedness for borrowed money or guarantee such indebtedness of another Person (other than a wholly owned Subsidiary of the Company), or issue or sell any debt securities or warrants or other rights to acquire any debt security of the Company or any of its Subsidiaries, other than indebtedness in an aggregate principal amount not to exceed $1,000,000 outstanding at any time;

(viii)(x) other than in the ordinary course of business consistent with past practice, acquire any assets or equity interests in any other Person for a fair market value in an amount in excess of (1) $1,000,000 in a single transaction or series of related transactions or (2) $5,000,000 in the aggregate and (y) except for expenditures set forth in capital budgets made available to Parent prior to the date of this Agreement, make or authorize any capital expenditure in excess of $1,000,000 in the aggregate during any calendar year;

(ix)(x) make any material changes with respect to financial accounting policies or procedures, except as required by GAAP, or (y) except as required by applicable Laws or GAAP, revalue in any material respect any of its assets, including writing off accounts or notes receivable, other than in the ordinary course of business and consistent with past practice;

(x)settle any pending or threatened litigation or other proceedings before a Governmental Entity if such settlement (A) does not comply with Section 6.13, (B) with respect to the current or future payment of monetary damages, involves the payment of monetary damages that exceed $1,000,000 individually or in the aggregate, net of any amount covered by insurance or indemnification, (C) with respect to any non-monetary terms and conditions therein, imposes or requires actions that would reasonably

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be expected to have a material effect on the continuing operations of the Company or would reasonably be expected to impose material adverse restrictions on the business activities of the Company, (D) arises out of any matters related to the FCPA;

(xi)to the extent such action could materially affect the Company,(A) make, change or revoke any Tax election or adopt or change any method of Tax accounting, (B) enter into any “closing agreement” as described in Section 7121 of the Code (or any comparable or similar provisions of applicable Law), settle or compromise any liability with respect to Taxes or surrender any claim for a refund of Taxes, (C) file any amended Tax Return, or (D) consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes;

(xii)transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest, cancel, abandon or allow to lapse or expire or otherwise dispose of any assets, licenses, rights, operations, product lines or businesses of the Company or its Subsidiaries, including capital stock of any of its Subsidiaries, other than Permitted Liens or transactions (A) solely among the Company and/or its wholly owned Subsidiaries that would not result in a material increase in the Tax liability of the Company and its Subsidiaries, (B) that do not carry a value in excess of $1,000,000 in the aggregate, (C) pursuant to Contracts listed on Section 6.1(a)(xii) of the Company Disclosure Letter in effect prior to the date of this Agreement, or (D) with respect to Contracts related to the LFRP entered into in the ordinary course of business consistent with past practice;

(xiii)except as required pursuant to Contracts or Benefit Plans in effect prior to the date of this Agreement or as required by applicable Law, (A) grant or provide any severance, termination or bonus payments (other than as set forth in Section 6.7(d)) or benefits to any current or former employee, director or independent contractor, (B) increase the compensation of or benefits payable to any current or former employee or director, except for, with respect to current employees annual merit-based pay increases in the ordinary course of business consistent with past practice and not to exceed 4% in the aggregate, (C) establish, adopt, terminate or amend any Benefit Plan (other than routine changes to welfare plans or any changes to Benefit Plans that would not result in more than a de minimis increase to the Company’s costs under such Benefit Plans or would accelerate the vesting of any awards outstanding under such Benefit Plan) or any plan, contract, program, policy or arrangement that would be a Benefit Plan if in effect on the date hereof, (D) enter into or negotiate any Collective Bargaining Agreement or (E) change any actuarial or other assumptions used to calculate funding obligations with respect to any Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined;

(xiv)hire or terminate the employment or engagement of any (x) executive officer or (y) employee with annualized base salary of more than $200,000, other than a termination for cause, or promote any employee, other than in the ordinary course of business consistent with past practice;

(xv)other than in the ordinary course of business, (A) amend, modify or terminate any Material Contract or (B) enter into any contract that would have been a

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Material Contract had it been entered into prior to the date of this Agreement; provided that Contracts related to the LFRP will be deemed to be Material Contracts for purposes of this clause (xv);

(xvi)except as required by applicable Law, convene any regular or special meeting of the stockholders of the Company other than the Stockholders Meeting; or

(xvii)agree, authorize or commit to do any of the foregoing.

(b)Nothing contained in this Agreement is intended to give Parent Holdco or Parent, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent Holdco’s, Parent’s or their Subsidiaries’ operations.  Prior to the Effective Time, each of Parent Holdco, Parent and the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

(c)Parent will, promptly following the date of this Agreement, designate two (2) individuals from either of whom the Company may seek approval to undertake any actions not permitted to be taken under this Section 6.1 and will ensure that such persons will respond, on behalf of Parent Holdco and Parent, to the Company’s written requests in an expeditious manner (email being sufficient).  Parent Holdco and Parent agrees that, if no disapproval or reasonable request for additional information regarding any such written request from the Company is made within five (5) business days of the date on which Parent receives a request, then Parent Holdco and Parent will be deemed to have provided its approval to such request for all purposes under this Agreement. If Parent, within such five (5) business day period, reasonably requests additional information regarding the Company’s request, Parent Holdco and Parent must provide a response to the Company within five (5) business days following receipt from the Company of such additional information and, if it does not respond during such time period, Parent Holdco and Parent will be deemed to have provided its approval to such request for all purposes under this Agreement. The making of a request by the Company pursuant to this Section 6.1(c) shall not be an admission that, or otherwise imply that, the Company is required to seek an approval from Parent Holdco and Parent in connection with the subject matter of such request or any similar request.

6.2Acquisition Proposals.

(a)No Solicitation or Negotiation.  The Company agrees that, except as expressly permitted by this Section 6.2, neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall instruct and cause its and its Subsidiaries’ employees, investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly:

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(i)initiate, solicit or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;

(ii)engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide or make available any non-public information or data to any Person relating to the Company or any of its Subsidiaries relating to, or that would reasonably be expected to lead to, any Acquisition Proposal, except to notify such Person of the existence of this Section 6.2;

(iii)otherwise facilitate knowingly any effort or attempt to make an Acquisition Proposal; or

(iv)enter into or execute, or propose to enter into or execute, any agreement relating to an Acquisition Proposal.

Notwithstanding anything in the foregoing to the contrary, prior to the date on which the Company Requisite Vote is obtained, but not after, the Company and its Representatives may (A) provide information in response to a request therefor by a Person who has made a bona fide written Acquisition Proposal if (1) such Acquisition Proposal did not result from a knowing or intentional breach of the Company’s obligations under this Section 6.2 and (2) the Company receives from the Person so requesting such information an executed confidentiality agreement on terms that, taken as a whole, are not less restrictive to the other party than those contained in the Confidentiality Agreement and the Company complies with the Confidentiality Agreement; it being understood that such confidentiality agreement must include a standstill provision, but need not prohibit the making, or amendment, of a private Acquisition Proposal; and (3) the Company promptly (but in any event within twenty-four (24) hours of providing such information) discloses (and, if applicable, provides copies of) any such information to Parent to the extent not previously disclosed or provided to Parent; (B) engage or participate in any discussions or negotiations with any Person who has made such a bona fide written Acquisition Proposal, subject to the conditions set forth in clause (A)(1)-(3) above; or (C) after having complied with Section 6.2(c), authorize, adopt, approve, recommend, or otherwise declare advisable or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and only to the extent that, (x) prior to taking any action described in clause (A), (B) or (C) above, the board of directors of the Company, or any committee thereof, determines in good faith that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, (y) in each such case referred to in clause (A) or (B) above, the board of directors of the Company, or any committee thereof, has determined in good faith based on the information then available that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal, and (z) in the case referred to in clause (C) above, the board of directors of the Company, or any committee thereof, determines in good faith that such Acquisition Proposal is a Superior Proposal.

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(b)Definitions.  For purposes of this Agreement:

“Acquisition Proposal” means (i) any proposal or offer with respect to a merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or similar transaction involving the Company and/or any of its Subsidiaries or (ii) any direct or indirect acquisition by any Person resulting in, or proposal or offer, which if consummated would result in, any Person becoming the beneficial owner, directly or indirectly, in one or a series of related transactions, of 15% or more of the total voting power or of any class of equity securities of the Company, or 15% or more of the consolidated total assets (including equity securities of its Subsidiaries) of the Company, in the case of each of clause (i) and clause (ii) of this Section 6.2(b), other than the Merger.

“Superior Proposal” means a bona fide Acquisition Proposal that would result in any Person becoming the beneficial owner, directly or indirectly, of more than 50% of the assets (on a consolidated basis) or more than 50% of the total voting power of the equity securities of the Company that the board of directors of the Company has determined in its good faith judgment (after taking into account any revisions to the terms of the transaction contemplated by Section 6.2(c) of this Agreement and taking into account the timing, likelihood of consummation, legal, financial, regulatory and other aspects of such Acquisition Proposal) is likely to be consummated and would, if consummated, result in a transaction more favorable to the Company’s stockholders from a financial point of view than the Merger.

(c)No Change in Recommendation or Alternative Acquisition Agreement.  The board of directors of the Company and each committee of the board of directors of the Company shall not:

(i)withhold, withdraw, qualify or modify, or resolve or publicly propose to withhold, withdraw, qualify or modify in a manner adverse to Parent, the Company Recommendation with respect to the Merger (it being understood that the board of directors of the Company may take no position with respect to an Acquisition Proposal proposed through a tender offer or exchange offer until the close of business on the tenth (10th) business day after the commencement of such Acquisition Proposal pursuant to Rule 14d-2 under the Exchange Act without such action being considered an adverse modification); or

(ii)except as expressly permitted by, and after compliance with, this Section 6.2(c), cause or permit the Company to enter into any acquisition agreement, merger agreement or similar definitive agreement (other than a confidentiality agreement entered into in compliance with Section 6.2(a)) (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal.

Notwithstanding anything in the foregoing to the contrary, prior to the date on which the Company Requisite Vote is obtained, but not after, the board of directors of the Company may (A) withhold, withdraw, qualify or modify the Company Recommendation,

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(B) fail to include the Company Recommendation in the Proxy Statement, (C) following a publicly announced or disclosed bona fide Acquisition Proposal (other than an Acquisition Proposal that is a tender offer or exchange offer) fail to reaffirm or republish without qualification or modification the Company Recommendation within ten (10) business days following the receipt of a written request to do so from Parent or (D) approve, recommend or otherwise declare advisable any Superior Proposal made after the date of this Agreement, if (i) solely in a circumstance where any of the foregoing actions is in respect of an Acquisition Proposal, an Acquisition Proposal (with all references to “15%” in the definition of Acquisition Proposal being deemed to be references to “50%” for the purposes of usage of such term in this Section 6.2(c)) has been made, the board of directors of the Company determines in good faith that such Acquisition Proposal constitutes a Superior Proposal and (ii) in all cases the board of directors of the Company determines in good faith that failure to do so would reasonably be expected to be inconsistent with its fiduciary obligations under applicable Law (a “Change of Recommendation”) and, in a circumstance where an Acquisition Proposal has been made may also take action pursuant to Section 8.3(a); provided, however, that the Company shall not effect a Change of Recommendation in connection with a Superior Proposal or take any action pursuant to Section 8.3(a) with respect to a Superior Proposal unless: (x) the Company notifies Parent in writing, at least one hundred twenty (120) hours in advance, that it intends to effect a Change of Recommendation in connection with a Superior Proposal or to take action pursuant to Section 8.3(a) with respect to a Superior Proposal, which notice shall specify the identity of the party who made such Superior Proposal and all of the material terms and conditions of such Superior Proposal and attach the most current version of such agreement; (y) after providing such notice and prior to making such Change of Recommendation in connection with a Superior Proposal or taking any action pursuant to Section 8.3(a) with respect to a Superior Proposal, the Company shall negotiate in good faith with Parent during such one hundred twenty (120) hour period (to the extent that Parent desires to negotiate) to make such revisions to the terms of this Agreement as would permit the board of directors of the Company not to effect a Change of Recommendation in connection with a Superior Proposal or to take such action pursuant to Section 8.3(a) in response to a Superior Proposal; and (z) the board of directors of the Company shall have considered in good faith any changes to this Agreement offered in writing by Parent in a manner that would form a binding contract if accepted by the Company and shall have determined in good faith that the Superior Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect; provided that, for the avoidance of doubt, the Company shall not effect a Change of Recommendation in connection with a Superior Proposal or take any action pursuant to Section 8.3(a) with respect to a Superior Proposal prior to the time that is one hundred twenty (120) hours after it has provided the written notice required by clause (x) above; provided, further, that in the event that the Acquisition Proposal is thereafter modified by the party making such Acquisition Proposal, the Company shall provide written notice of such modified Acquisition Proposal and shall again comply with this Section 6.2(c), except that the deadline for such new written notice shall be reduced to seventy two (72) hours (rather than the one hundred twenty (120) hours otherwise contemplated by this Section 6.2(c)) and the time the Company shall be permitted to effect a Change of Recommendation in connection with a Superior Proposal or to take action pursuant to Section 8.3(a) with respect to a Superior Proposal shall be reduced to the time that is seventy two (72) hours after it has provided such written notice (rather than the time that is one hundred twenty (120) hours otherwise contemplated by this Section 6.2(c)).

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(d)Certain Permitted Disclosure.  Nothing contained in this Section 6.2 shall be deemed to prohibit the Company or the board of directors of the Company from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to stockholders), provided that any disclosure made pursuant to this Section 6.2(d)(i) that constitutes a Change of Recommendation shall result in all of the consequences of a Change of Recommendation as set forth in this Agreement, or (ii) making any “stop-look-and-listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the stockholders of the Company); provided, that, the board of directors of Company or any committee thereof shall not effect a Change of Recommendation except in accordance with Section 6.2(c).

(e)Existing Discussions.  The Company agrees that it will, and it will cause its Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal.  The Company shall promptly (and in any event within two (2) days following the date of this Agreement) request any Person that has executed a confidentiality or non-disclosure agreement in connection with any actual or potential Acquisition Proposal that remains in effect as of the date of this Agreement to return or destroy all confidential information in the possession of such Person and the Company shall terminate access to any virtual data room maintained by the Company for any such Person.  The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.2.

(f)Notice.  The Company agrees that it will promptly (and, in any event, within twenty-four (24) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by, any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, it or any of its Representatives indicating, in connection with such notice, the material terms and conditions of any proposal or offer (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and material terms of any such proposal or offer (including any amendments thereto) and the status of any such discussions or negotiations.  The Company agrees that it will not enter into any agreement with any Person subsequent to the date of this Agreement that prohibits the Company from providing any information to Parent in accordance with this Section 6.2(f).

6.3Stockholders Meeting; Filings; Other Actions; Notification.

(a)Stockholders Meeting. The Company shall schedule a special meeting of the holders of Shares to consent and vote upon the adoption of this Agreement (the “Stockholders Meeting”) to be held within forty-five (45) days of the initial mailing of the Proxy Statement, with the date of such meeting to be set after consultation with Parent; provided, however, that the Company may postpone or adjourn the Stockholders Meeting (i) with the consent of Parent, such consent of Parent not to be unreasonably withheld, conditioned or delayed, (ii) to ensure that any required supplement or amendment to the Proxy Statement is

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provided the stockholders of the Company within a reasonable amount of time in advance of the Stockholders Meeting, (iii) if the Company reasonably believes that (1) it is necessary and advisable to do so in order to solicit additional proxies in order to obtain the Company Requisite Vote, whether or not a quorum is present or (2) it will not have sufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Stockholders Meeting (but in the case of (2), the date of the Stockholders Meeting is not postponed or adjourned more than an aggregate of 15 calendar days) or (iv) as may be required by applicable Law.  At the instruction of Parent, the Company shall postpone or adjourn the Stockholders Meeting if it is necessary or advisable to do so in order to solicit additional proxies in order to obtain the Company Requisite Vote; provided that Parent shall require no more than two (2) such postponement or adjournments, which together shall last no more than twenty (20) business days.

(b)Proxy Statement.  As promptly as practicable and in no event later than fifteen (15) business days after the date of this Agreement, the Company shall (i) prepare and file a proxy statement in preliminary form relating to the Stockholders Meeting (such proxy statement, including any amendment or supplement thereto, the “Proxy Statement”) (ii) subject to Section 6.2, include in the Proxy Statement the Company Recommendation, (iii) furnish the information required to be provided to the holders of Shares pursuant to Delaware Law, the Exchange Act and any other applicable Laws and (iv) unless a Change of Recommendation has been effected, use its reasonable efforts to solicit from holders of all of the Shares proxies in favor of the adoption of this Agreement and the approval of the Merger and take all other action reasonably necessary or advisable to secure the approval of stockholders required by the DGCL and any other applicable Law and the Charter and bylaws (if applicable) to effect the Merger; provided, unless a Change of Recommendation has been effected, that Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions, or changes thereto suggested by Parent, Merger Sub and their counsel.  The Company shall promptly notify Parent of the receipt of all comments of the SEC with respect to the Proxy Statement and of any request by the SEC for any amendment or supplement thereto, or for additional information, and unless a Change of Recommendation has been effected, shall provide to Parent, after Parent, Merger Sub and their counsel shall have had a reasonable opportunity to review and comment on the Proxy Statement and draft correspondence and due consideration has been given to such comments by the Company, copies of all correspondence between the Company and/or any of its Representatives and the SEC.  The Company and Parent shall each use reasonable best efforts to promptly provide satisfactory responses to the SEC with respect to all comments received on the Proxy Statement by the SEC, and the Company shall cause the definitive Proxy Statement to be mailed as promptly as practicable after the date the SEC staff advises that it has no further comments thereon, or that the Company may commence mailing the Proxy Statement.  Notwithstanding anything to the contrary in this Section 6.3(b), and subject to Section 6.2, the Company may amend or supplement the Proxy Statement in connection with a Change of Recommendation without the prior consent of Parent.

(c)CVR Agreement. At or prior to the Effective Time, Parent Holdco shall authorize and duly adopt, execute and deliver, and will ensure that a duly qualified Rights Agent executes and delivers, the CVR Agreement, subject to any reasonable revisions to the CVR Agreement that are requested by such Rights Agent (provided that such revisions are not,

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individually or in the aggregate, detrimental or adverse, taken as a whole, to any holder of CVR).  Parent Holdco, Parent and the Company shall cooperate, including by making changes to the form of CVR Agreement, as necessary to ensure that the CVRs are not subject to registration under the Securities Act, the Exchange Act or any applicable state securities or “blue sky” laws.

(d)Cooperation.

(i)Subject to the terms and conditions set forth in this Agreement, the Company, Parent Holdco and Parent shall cooperate with each other and use (and shall cause their respective Subsidiaries to use) their respective 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 this Agreement and applicable Laws to consummate and make effective the Merger as soon as practicable, including preparing and filing as promptly as practicable (and in any event shall make all filings pursuant to the HSR Act within fifteen (15) days of the date hereof) all documentation to effect all necessary notices, reports and other filings and to obtain as promptly as practicable all consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger.  Parent may withdraw and refile its initial filing if in its reasonable judgment such step is consistent with expeditiously obtaining a required clearance. The Company and Parent will each request early termination of the waiting period with respect to the Merger under the HSR Act.  Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance and, to the extent practicable, each will consult with the other on and consider in good faith the views of the other in connection with, all of the information relating to Parent Holdco and Parent or the Company, as the case may be, including the tax, regulatory and commercial considerations of each party, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger.  Notwithstanding anything to the contrary contained in this Agreement, nothing contained herein shall be interpreted to require either party to exchange its HSR Act filing, including attachments, with the other party, except on an outside counsel only basis.  In exercising the foregoing rights, each of the Company, Parent Holdco and Parent shall act reasonably and as promptly as practicable.  Nothing in this Agreement shall require the Company or its Subsidiaries to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon Closing.  Notwithstanding the foregoing, but subject to compliance with the remainder of this Section 6.3, including Parent’s right to withdraw and refile its initial filing, Parent shall, following consultation with the Company and after giving due consideration to its views and its obligation to use its reasonable best efforts to consummate the transactions contemplated by this Agreement as expeditiously as possible, direct and control all aspects of the parties’ efforts to gain regulatory clearance either before any Governmental Entity or in any action brought to enjoin the Merger and the other transactions contemplated hereby pursuant to any antitrust or competition Law including any divestiture activities.

(ii)The Company, on the one hand, and Parent and its Subsidiaries, on the other hand, shall use commercially reasonable efforts to cooperate with each other in

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connection with (A) reasonably optimizing the Tax consequences resulting from the transactions that may be required  by Section 6.3(g) and (B) Parent’s integration planning (including by providing reasonable assistance in obtaining records and information and using commercially reasonable efforts to make available relevant third party advisors).

(e)Information.  Subject to applicable Laws, the Company and Parent each shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement and any other statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any third party and/or any Governmental Entity in connection with the Merger. If Parent Holdco or Parent elects to file a registration statement and/or  arrange financing, in accordance with the Securities Laws prior to the Closing Date, the Company will use its commercially reasonable efforts, at Parent’s request, (i) to permit the use of the Company’s financial statements in such registration statement and / or financing, (ii) to assist Parent with the preparation of pro forma financial statements by Parent, (iii) to cause its current or former independent accountants to (A) provide any necessary written consents to use their audit reports relating to the Company and to be named as an “Expert” in any document related to any registration statement, and (B) provide  any customary “comfort letters” (including customary negative assurance comfort, including change period comfort) and (iv) provide such other information (financial or otherwise) that is reasonably requested by Parent in connection with any of (i) through (iv), provided that neither the Company nor any of its Subsidiaries shall be required to pay any fees, incur or reimburse any cost or expense, or make any payment or otherwise incur any liability relating to any such registration statement and / or financing to the extent the Parent does not have a reimbursement or indemnity obligation to the Company or its Subsidiaries pursuant this Section 6.3(e). Parent shall promptly, upon the written request of the Company (i) reimburse the Company for all reasonable out-of-pocket costs (including reasonable accountants’ fees) incurred by the Company or any of its Subsidiaries in connection with providing assistance requested by the Parent, pursuant to this Section 6.3(e) and (ii) indemnify the Company and its Subsidiaries for any damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with taking actions requested by the Parent, pursuant to, and otherwise in connection with this Section 6.3(e).  Parent and the Merger Sub acknowledge and agree that the Closing shall not be conditioned upon any financing requirement of Parent or the Merger Sub.

(f)Status.  Subject to applicable Laws and the instructions of any Governmental Entity, the Company, on the one hand, and Parent Holdco and Parent, on the other hand, each shall keep the other apprised of the status of matters relating to completion of the Merger, including promptly furnishing the other with copies of notices or other communications received by Parent Holdco, Parent or the Company, as the case may be, or any of its Subsidiaries, from any third party and/or any Governmental Entity with respect to the Merger.  Neither the Company nor Parent Holdco and Parent shall permit any of its officers or any other Representatives to participate in any meeting or substantive telephone discussion with any Governmental Entity in respect of any filings, investigation or other inquiry with respect to the Merger unless to the extent practicable: (i) it consults with the other party in advance and (ii) to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate in such meeting or substantive telephone discussion.

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(g)Regulatory Matters.  Without limiting the generality of the other undertakings pursuant to this Section 6.3, each of the Company (in the case of Sections 6.3(g)(i), 6.3(g)(iii) and 6.3(g)(iv)) and Parent Holdco (in all cases set forth below) agrees to take or cause to be taken the following actions, in each case subject to clause (iv) below:

(i)the prompt provision to each and every federal, state, local or foreign court or Governmental Entity with jurisdiction over enforcement of any applicable antitrust or competition Laws (“Government Antitrust Entity”) of non-privileged information and documents requested by any Government Antitrust Entity or that are necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement;

(ii)Parent Holdco agrees to, and will cause each of its Subsidiaries and Affiliates to, use its reasonable best efforts to avoid the entry of any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, which reasonable best efforts shall be deemed to include, without limitation, the defense through litigation on the merits of any claim asserted in any court, agency or other proceeding by any Person, including, without limitation, any Governmental Entity, seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of such transactions and, subject to Section 6.3(g)(iv), the proffer and agreement by Parent Holdco of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, such assets, rights, product lines, licenses, categories of assets or businesses or other operations, or interests therein, of the Company, Parent Holdco or any of their respective Subsidiaries (and the entry into agreements with, and submission to orders of, the relevant Government Antitrust Entity giving effect thereto) if such action should be reasonably necessary or advisable to avoid, prevent, eliminate or remove the actual, anticipated or threatened (x) commencement of any proceeding in any forum or (y) issuance of any order, decree, decision, determination, judgment or Law that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement by any Government Antitrust Entity (it being understood that, as it relates to the Company and its Subsidiaries, no such action will be binding on the Company or its Subsidiaries without the Company’s prior written consent unless it is contingent upon the occurrence of the Closing);

(iii)to take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination, decree or Law is entered, issued or enacted, or becomes reasonably foreseeable to be entered, issued or enacted, in any proceeding, review or inquiry of any kind, that would make consummation of the transactions contemplated by this Agreement in accordance with the terms of this Agreement unlawful or that would delay beyond the Outside Date (as defined below), restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, any and all steps (including, without limitation, the appeal thereof, the posting of a bond or the taking of the steps contemplated by clause (ii) of this paragraph (g)) necessary to resist, vacate, modify, reverse, suspend, prevent,

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eliminate, avoid or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination, decree or enactment so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement; and

(iv)notwithstanding anything to the contrary contained in this Agreement, including but not limited to Sections 6.3(g)(i)-(iii), Parent Holdco shall not be required to sell, lease, license or otherwise dispose of, or hold separate pending such disposition of, any assets, rights, product lines, licenses, categories of assets or businesses or other operations, or interests therein, of the Company, Parent Holdco or any of their respective Subsidiaries, except any currently (as of the date of execution of this Agreement) marketed products of the Company that collectively generated gross revenues of no greater than $77,000,000 in the 2014 fiscal year; provided that, in connection with any divestiture required pursuant to this Section 6.3(g)(iv)) or that Parent Holdco elects to pursue in connection with the transactions contemplated by this Agreement, the Company will provide all cooperation reasonably requested to assist Parent Holdco in fulfilling Parent Holdco’s obligations at Parent Holdco’s sole cost and expense, including (a) making available its management team for meetings with prospective acquirers regarding the assets proposed to be divested, (b) assisting Parent Holdco in its preparation of marketing materials and (c) otherwise assisting Parent Holdco in facilitating the transaction, in each case where any such transaction would be contingent upon the occurrence of the Effective Time.

(h)Obligation of Merger Sub.  Parent Holdco and Parent shall take all action necessary to cause Merger Sub to perform its obligations under this Agreement and to consummate the Merger and the other transactions contemplated by the Agreement on the terms and conditions set forth in this Agreement.  Immediately following the date of this Agreement, Parent shall provide or make available to the Company a copy of Parent’s approval of this Agreement, as the sole stockholder of Merger Sub.

6.4Access and Reports.  Subject to applicable Law, upon reasonable notice, the Company shall (and shall cause its Subsidiaries to) afford Parent’s officers and other authorized Representatives reasonable access, during normal business hours throughout the period prior to the Effective Time, to its employees, properties, books, contracts and records and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all information concerning its business, properties and personnel as may reasonably be requested, provided that no investigation pursuant to this Section 6.4 shall affect or be deemed to modify any representation or warranty made by the Company herein, and provided, further, that the foregoing shall not require the Company or any of its Subsidiaries (i) to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company would (A) result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality or to disclose privileged information; provided that the Company will use its reasonable best efforts to develop alternative processes to permit such disclosure, including without limitation, common interest agreements, outside counsel review, and requesting necessary consents from third parties, (B) be reasonably likely to result in a violation of any Law or (C) if the Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties in a litigation or other proceeding, to disclose or permit access to any information that is reasonably pertinent to such litigation or

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other proceeding.  All requests for information made pursuant to this Section 6.4 shall be directed to the Company’s executive officers or other Person designated by the Company.  All such information shall be governed by the terms of the Confidentiality Agreement.

6.5Stock Exchange De-listing.  Prior to the Closing Date, the Company shall cooperate with Parent and use 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 de-listing by the Surviving Corporation of the Shares from NASDAQ and the deregistration of the Shares under the Exchange Act as promptly as practicable after the Effective Time. If the Surviving Corporation is reasonably likely to be required to file any quarterly or annual periodic reports pursuant to the Exchange Act during the fifteen (15) days after the Closing Date, the Company will deliver to Parent at least five (5) Business Days prior to the Closing a substantially final draft of any such quarterly or annual periodic reports reasonably likely to be filed during such period and fully executed officer certifications required to be filed with such quarterly or annual periodic reports.

6.6Publicity.  The initial press release regarding the Merger shall be a joint press release and thereafter, so long as this Agreement is in effect (unless and until a Change of Recommendation has occurred or in connection with Section 6.2(c)), the Company and Parent each shall consult with the other prior to issuing any press releases or otherwise making public announcements with respect to the Merger and the other transactions contemplated by this Agreement and prior to making any filings with any third party and/or any Governmental Entity (including any national securities exchange or interdealer quotation service) with respect thereto, except as may be required by Law or by obligations pursuant to any listing agreement with or rules of any national securities exchange or interdealer quotation service or by any listing authority (including the U.K. Listing Authority) or by the request of any Governmental Entity.

6.7Employee Benefits.

(a)Parent shall provide, or shall cause to be provided to each employee of the Company and its Subsidiaries who is employed as of immediately prior to the Effective Time and continues to be employed by the Surviving Corporation or any Affiliate (each, a “Continuing Employee”) the wages, incentive bonus opportunities and benefits set forth on Schedule 6.7(a).

(b)For purposes of vesting, benefit accruals (but not for benefit accrual purposes under any defined benefit pension plan), vacation and sick time credit and eligibility to participate under the employee benefit plans, programs and policies of Parent and its Subsidiaries providing benefits to any Continuing Employee after the Effective Time (including the Benefit Plans) (the “New Plans”), each Continuing Employee shall be credited with his or her years of service with the Company and its Subsidiaries and their respective predecessors (to the extent credited by the Company and its Subsidiaries) before the Effective Time, to the same extent as such Continuing Employee was entitled, before the Effective Time, to credit for such service under any similar Benefit Plan in which such Continuing Employee participated or was eligible to participate immediately prior to the Effective Time; provided that the foregoing shall not apply to the extent that its application would result in a duplication of benefits with respect to the same period of service.  In addition, and without limiting the generality of the foregoing, Parent shall use commercially reasonable efforts to cause, to the extent consistent with Parent’s current

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employee benefit plans, programs and policies (i) each Continuing Employee to 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 a Benefit Plan in which such Continuing Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”), and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Continuing Employee, any evidence of insurability requirements, all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Continuing Employee and his or her covered dependents, to the extent such conditions were inapplicable or waived under the comparable Old Plan.  Parent shall use commercially reasonable efforts, to the extent consistent with Parent’s current employee benefit plans, programs and policies,  to cause any eligible expenses incurred by any Continuing Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Continuing Employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year.

(c)Parent hereby acknowledges that a “change in control” or other event with similar import, within the meaning of the Benefit Plans that contain such terms, will occur upon the Effective Time.  Parent shall, and shall cause the Surviving Corporation and any successor thereto to, in accordance with Section 6.7(c) of the Company Disclosure Letter, honor, assume, fulfill and discharge the Company’s and its Subsidiaries’ obligations under the Benefit Plans.

(d)If the Effective Time occurs prior to the time when bonuses are paid with respect to calendar year 2015, at the Effective Time the Company shall pay each participant in the Company’s incentive plans (the “Incentive Plans”) who remains employed through the Effective Time an annual incentive amount in respect of the 2015 fiscal year, equal to the actual level of performance achieved as of the earlier to occur of December 31, 2015 and the Effective Time (with such performance measure prorated, if applicable, for the portion of the performance cycle completed at the Effective Time), as determined by the compensation committee of the board of directors of the Company prior to the Effective Time in accordance with the terms of the applicable Incentive Plans and based on performance through the earlier to occur of December 31, 2015 and the day that is no more than five (5) business days prior to the Effective Time; provided that, with respect to any employee who is a party to an Executive Retention Agreement, if the Effective Time occurs in 2015 and such employee is terminated without “Cause” or “Good Reason” (as such terms are defined in his or her Executive Retention Agreement) following the Effective Time but prior to January 1, 2016, such employee will not be entitled to receive a prorated bonus with respect to calendar year 2015 pursuant to the Executive Retention Agreement.  In no event shall the aggregate amount of all such bonuses be more than the amount that would be paid if the level of performance achieved was equal to 150% of each employee’s target.

(e)Unless otherwise requested by Parent at least five (5) days prior to the Closing Date, the Company shall take (or cause to be taken) all actions necessary or appropriate to terminate, effective no later than the day prior to the Closing Date, the Company 401(k) Profit Sharing Plan (the “Company 401(k) Plan”).  The Company shall provide to Parent prior to the Closing Date written evidence of the adoption by the Company’s board of directors (or other

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authorized committee) of resolutions terminating such Company 401(k) Plan (the form and substance of which resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld or delayed).  No later than the Effective Time, (i) the Company shall take all actions reasonably necessary to cause each Continuing Employee to become 100% vested in such Continuing Employee’s accounts under such Company 401(k) Plan, effective as of the Closing Date or, if earlier, the date on which such Company 401(k) Plan is terminated and (ii) Parent shall take all actions reasonably necessary to permit each Continuing Employee to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code) in an amount equal to the full account balance distributed or distributable to such Continuing Employee from the Company 401(k) Plan to a tax-qualified defined contribution retirement plan maintained by Parent or one of its Subsidiaries (the “Parent 401(k) Plan”) and to transfer outstanding loans to the Parent 401(k) Plan.  Each Continuing Employee shall be eligible to become a participant in the Parent 401(k) Plan as soon as administratively practical after the Closing Date.

(f)The provisions of this Section 6.7 are solely for the benefit of the parties to this Agreement, and nothing in this Agreement, whether express or implied, is intended to, or shall, (i) constitute the establishment or adoption of or an amendment to any employee benefit plan for purposes of ERISA or otherwise be treated as an amendment or modification of any Benefit Plan, New Plan or other benefit plan, agreement or arrangement (other than Section 6.7(e)), (ii) limit the right of Parent, the Company or their respective Subsidiaries to amend, terminate or otherwise modify any Benefit Plan, New Plan or other benefit plan, agreement or arrangement following the Effective Time, or (iii) create any third-party beneficiary or other right (including, but not limited to, a right to employment) in any Person, including any current or former employee of the Company or any Subsidiary of the Company, or any participant in any Benefit Plan, New Plan or other benefit plan, agreement or arrangement (or any dependent or beneficiary thereof).

(g)Notwithstanding anything to the contrary in this Agreement or the Confidentiality Agreement, from and after the date hereof until the Effective Time, the Company shall permit Parent to meet with key employees and executive officers to discuss employment arrangements to be entered into between Parent, one of its Affiliates or the Surviving Corporation, and such key employees and executive officers following the Effective Time.

(h)Not later than five (5) business days prior to the anticipated Effective Time, the Company will update Section 5.1(b) of the Company Disclosure Letter to reflect then current information regarding the Company Options and Company RSUs, and provide such updated schedule to Parent.

6.8Agreements Concerning Parent Holdco, Parent and Merger Sub. During the period from the date of this Agreement through the Effective Time, Merger Sub shall not engage in any activity of any nature except for activities related to or in furtherance of the Merger.  Other than with respect to a potential transaction involving Baxalta, Parent Holdco agrees that it shall not, and shall not permit any of its Affiliates to, directly or indirectly, acquire or agree to acquire any assets, business or any Person, whether by merger, consolidation, purchasing 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

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purchase or other transaction or action would reasonably be expected to materially increase the risk of any Governmental Entity entering, or materially increase the risk of not being able to remove or successfully challenge, any permanent, preliminary or temporary injunction or other order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Merger and the other transactions contemplated by this Agreement prior to the Outside Date.

6.9Indemnification; Directors’ and Officers’ Insurance.

(a)From and after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, indemnify and hold harmless, to the fullest extent provided for under the Company Charter and Company bylaws as in effect on the date hereof (and the Surviving Corporation shall also advance expenses as incurred to the fullest extent provided for under the Company Charter and Company bylaws as in effect on the date hereof; provided that the Person to whom expenses are advanced provides an undertaking to repay such advances if it is finally determined by a court of competent jurisdiction that such Person is not entitled to indemnification), each Person who was entitled to such indemnification and advancement from the Company and its Subsidiaries (in each case, when acting in such capacity) immediately prior to the date hereof (collectively, the “Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or related to such Indemnified Parties’ service as a director, officer or employee of the Company or its Subsidiaries or services performed by such Persons at the request of the Company or its Subsidiaries at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including (i) the Merger and the other transactions contemplated by this Agreement and (ii) actions to enforce this Section 6.9 or any other indemnification or advancement right of any Indemnified Party.

(b)Prior to the Effective Time, the Company shall, and if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at least six (6) years from and after the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions and limits of liability that are at least as favorable as the Company’s existing policies with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of the Company or any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby).  If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six (6) years from and after the Effective Time the D&O Insurance in place as of the date hereof with terms, conditions,

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retentions and limits of liability that are at least as favorable as provided in the Company’s existing policies as of the date hereof, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Company’s existing policies as of the date hereof; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend for such policies pursuant to this sentence an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not exceeding such amount.

(c)If Parent Holdco, Parent or the Surviving Corporation or any of their respective successors or assigns shall (i) consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of Parent Holdco, Parent or the Surviving Corporation shall assume all of the obligations set forth in this Section 6.9.

(d)The provisions of this Section 6.9 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties.

(e)The rights of the Indemnified Parties under this Section 6.9 shall be in addition to any rights such Indemnified Parties may have under the certificate of incorporation, certificate of formation or bylaws of the Company or any of its Subsidiaries, or under any applicable Contracts or Laws.  All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the certificate of incorporation, certificate of formation or bylaws of the Company or of any Subsidiary of the Company or any indemnification agreement between such Indemnified Party and the Company or any of its Subsidiaries shall survive the Merger or any other transaction contemplated by this Agreement and shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.

6.10Takeover Statutes.  If any Takeover Statute is or may become applicable to the Merger or any other transaction contemplated by this Agreement, the Company and its board of directors shall grant such approvals and take such actions as are necessary so that such transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise act to eliminate or minimize the effects of such statute or regulation on such transactions.

6.11Section 16 Matters.  Prior to the Effective Time, the Company will take all actions reasonably necessary to cause the transactions contemplated by this Agreement and any other dispositions of equity securities of the Company (including derivative securities) in connection with the transactions contemplated by this Agreement by each individual who is

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subject to the reporting requirements of Section 16(a) of the Exchange Act to be exempt under Rule 16b-3 under the Exchange Act.

6.12Parent Holdco Guarantee.   Parent Holdco irrevocably and unconditionally guarantees to the Company the due and punctual performance of the obligations of Parent and Merger Sub hereunder (the “Guaranteed Obligations”) subject to the terms hereof.  If, for any reason whatsoever, Parent or Merger Sub shall fail or be unable to duly, punctually and fully pay or perform the Guaranteed Obligations, Parent Holdco will forthwith pay or perform, or cause to be paid or performed, the Guaranteed Obligations.  This is a guarantee of payment and performance and not merely of collectability.

6.13Transaction Litigation.  Prior to the Effective Time, the Company shall promptly notify Parent of all civil, criminal or administrative actions, suits, claims, hearings, arbitrations, investigations or other proceedings commenced or threatened against the Company or any of its Subsidiaries or the board of directors of the Company, or any committee thereof, in each case in connection with, arising from or otherwise relating to the Merger or any other transaction contemplated by this Agreement (“Transaction Litigation”) (including by providing copies of all pleadings with respect thereto) and thereafter keep Parent reasonably informed with respect to the status thereof.  The Company shall (i) give Parent the opportunity to participate in the defense, settlement or prosecution of any Transaction Litigation and (ii) consult with Parent with respect to the defense, settlement and prosecution of any Transaction Litigation. The Company shall not agree to any settlement related to any Transaction Litigation without Parent’s consent, such consent not to be unreasonably withheld, delayed or conditioned. For purposes of this Section 6.13, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation by the Company (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith, but Parent will not be afforded any decision-making power or other authority over such Transaction Litigation.

6.14Resignations.   Prior to the Effective Time, the Company shall cause each director of the Company or its Subsidiaries to execute and deliver a letter effectuating his or her resignation as a director of such entity effective as of the Effective Time; provided that, notwithstanding anything else to the contrary, such resignation will not result in the forfeiture of any Company RSUs or Company Options held by such individual and that all Company RSUs and Company Options held by such individual immediately prior to the Effective Time (whether vested or unvested) will be treated in accordance with Sections 4.3(a) and 4.3(b). The Company will cooperate with Parent to effect the replacement of any such directors selected by Parent at the Effective Time.

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ARTICLE VII

Conditions

7.1Conditions to Each Party’s Obligation to Effect the Merger.  The respective obligation of each party to effect the Merger is subject to the satisfaction or waiver at or prior to the Effective Time of each of the following conditions:

(a)Orders.  No court or other Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits or makes illegal the consummation of the Merger (collectively, an “Order”).

(b)Stockholder Approval. This Agreement shall have been duly adopted by stockholders of the Company constituting the Company Requisite Vote at the Stockholders Meeting or any adjournment or postponement thereof.

(c)Regulatory Condition.  The applicable waiting period (and any extension thereof) under the HSR Act applicable to the Merger or the transactions contemplated by this Agreement shall have expired or been terminated.

7.2Conditions to the Obligations of Parent and Merger Sub to Effect the Merger.  The obligations of Parent and Merger Sub to consummate the Merger shall be subject to the satisfaction or waiver in writing (where permissible) of each of the following conditions:

(a)the representations and warranties of the Company set forth in this Agreement, (w) other than those set forth in the first sentence of Section 5.1(a) (Organization, Good Standing and Qualification), the first and second sentences of Section 5.1(b)  (Capital Structure), Section 5.1(c) (Corporate Authority; Approval), the last sentence of Section 5.1(f) (Absence of Certain Changes),  Section 5.1(m) (Takeover Statutes), Section 5.1(s) (Brokers and Finders) and Section 5.1(t) (Opinion of Financial Advisor), shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects of the Closing Date (other than those representations and warranties that speak only as to a particular date or time, which shall have been true and correct as of such date or time), except that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to constitute, a Company Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded); (x) the representations and warranties of the Company set forth in the first sentence of Sections 5.1(a) (Organization, Good Standing and Qualification), 5.1(c) (Corporate Authority; Approval) and 5.1(s) (Brokers and Finders) and Section 5.1(t) (Opinion of Financial Advisor),  shall have been true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects as of the Closing Date (other than those representations and warranties that speak only as to a particular date or time, which shall have been true and correct in all material respects as of such date or time), it being understood that, for purposes of determining the accuracy of such

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representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded; (y) the representations and warranties of the Company set forth in the first and second sentences of Section 5.1(b) (Capital Structure) shall have been true and correct except for de minimis exceptions as of the date of this Agreement and shall be true and correct except for de minimis exceptions as of the Closing Date (other than those representations and warranties that speak only as to a particular date or time, which shall have been true and correct except for de minimis exceptions as of such date or time), it being understood that, for purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded; and (z) the representation and warranty set forth in the last sentence of Section 5.1(f) (Absence of Certain Changes) and in Section 5.1(m) (Takeover Statutes) shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects as of the Closing Date (other than those representations and warranties that speak only as to a particular date or time, which shall have been true and correct as of such date and time);

(b)(i) the Company shall have performed and complied with, in all material respects, its obligations, agreements and covenants under this Agreement required to be performed at or prior to the Closing Date and (ii) since the date hereof, no facts, changes, events, developments or circumstances shall have occurred, arisen, come into existence or become known that have had and are continuing to have or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company and its Subsidiaries, taken as a whole;

(c)the Company shall have delivered to Parent a certificate signed by its Chief Executive Officer and Chief Financial Officer, dated the Closing Date, certifying as to the satisfaction by the Company of the conditions described in (a) and (b) above; and

(d)there shall not be pending any legal proceeding against Parent, the Company, Merger Sub, any Subsidiary of the Company or any of their respective directors, officers or members brought by a Governmental Entity in a jurisdiction where Parent or the Company has meaningful operations challenging this Agreement or the transactions contemplated by this Agreement, seeking to delay, restrain or prohibit the Merger, or seeking to prohibit or impose material limitations on the ownership or operation of all or a portion of the operations or assets of Company and its Subsidiaries (or Parent’s direct equity ownership of the Surviving Corporation or indirect equity ownership, following the Effective Time, of the Company’s Subsidiaries).

7.3Condition to the Company’s Obligation to Effect the Merger.  The obligation of the Company to effect the Merger shall be subject to the satisfaction or waiver in writing (where permissible) of each of the following conditions:

(a)The representations and warranties made by Parent and Merger Sub in this Agreement shall have been accurate as of the date of this Agreement and, other than representations and warranties made as of a particular date (which shall have been accurate to the degree described below as of such date), as of the Closing Date as if made on and as of the

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Closing Date, except to the extent failure to be accurate, in the aggregate, would not impair in any material respect the ability of each of Parent Holdco, Parent and Merger Sub, as the case may be, to perform its obligations under this Agreement or prevent or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement;

(b)Each of Parent Holdco, Parent and Merger Sub shall have performed and complied with, in all material respects, its obligations, agreements and covenants under the Agreement required to be performed at or prior to the Closing Date; and

(c)Parent shall have delivered to the Company a certificate signed by an authorized officer of Parent, dated the Closing Date, certifying as to the satisfaction by Parent and Merger Sub of the conditions described in (a) and (b) above

(d)The CVR Agreement shall be in full force and effect.

ARTICLE VIII

Termination

8.1Termination by Mutual Consent.  This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time, whether before or after the adoption of this Agreement by the Company’s stockholders, by mutual written consent of the Company and Parent by action of their respective boards of directors.

8.2Termination by Either Parent or the Company.  This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by action of the board of directors of either Parent or the Company, and upon delivery of written notice to the other party if:

(a)the Closing shall not have occurred by August 2, 2016 (as it may be extended as described below in this Section 8.2(a), the “Termination Date”); provided, however, that if as of such date, the condition set forth in Section 7.1(c) is not satisfied but all of the other conditions set forth in ARTICLE VII shall have been satisfied or waived or shall be capable of being satisfied or waived as of such date if the Closing were otherwise to occur on such date and the condition set forth in Section 7.1(c) remain capable of being satisfied or waived, then the Termination Date may be extended from August 2, 2016 to November 2, 2016 (the “Outside Date”) at the election of Parent or the Company by written notice to the other party (and the Outside Date shall then be the Termination Date), provided, further, that the right to terminate this Agreement pursuant to this Section 8.2(a) shall not be available to any party hereto that has breached its obligations under this Agreement in any manner that shall have contributed to the failure of the Closing to have occurred prior to the Termination Date in any material respect;

(b)any Order permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final and non-appealable; provided that the right to terminate this Agreement pursuant to this Section 8.2(b) shall not be available to any party that has breached in its obligations under this Agreement in any manner that shall have proximately contributed to the existence of such Order in any material respect; or

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(c)this Agreement shall not have been duly adopted by stockholders of the Company constituting the Company Requisite Vote at the Stockholders Meeting or any adjournment or postponement thereof.

8.3Termination by the Company.  This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned by the Company upon delivery of written notice to Parent:

(a)at any time prior to the time the Company Requisite Vote is obtained, if (i) the board of directors of the Company authorizes the Company, subject to complying with the terms of Section 6.2(c) in all material respects, to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal; (ii) immediately prior to or substantially concurrently with the termination of this Agreement the Company enters into an Alternative Acquisition Agreement with respect to a Superior Proposal; and (iii) the Company satisfies its obligations to pay the Termination Fee under Section 8.5(b); or

(b)at any time prior to the Effective Time, if there has been a breach of any representation, warranty, covenant or agreement made by Parent Holdco, Parent or Merger Sub in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, and such breach or untruth would give rise to a failure of the condition to Closing set forth in Section 7.3(a) or Section 7.3(b) to be satisfied and such breach or untruth is not curable or, if curable, is not cured prior to the earlier of (i) thirty (30) days after written notice thereof is given by the Company to Parent or (ii) the Termination Date.

8.4Termination by Parent.  This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time upon delivery of written notice to the Company:

(a)if the board of directors of the Company shall have made and not have withdrawn a Change of Recommendation; and

(b)at any time prior to the Effective Time, if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, and such breach or untruth gives rise to a failure of the condition to Closing set forth in Section 7.2(a) or Section 7.2(b)(i) hereto to be satisfied and such breach or untruth is not curable or, if curable, is not cured prior to the earlier of (i) thirty (30) days after written notice thereof is given by Parent to the Company or (ii) the Termination Date.

8.5Effect of Termination and Abandonment.

(a)Except as provided in paragraphs (b) and (c) below, in the event of termination of this Agreement and the abandonment of the transactions contemplated by this Agreement pursuant to this ARTICLE VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any party hereto (or of any of its Representatives or Affiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from fraud or any breach of this

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Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement.

(b)In the event that:

(i)a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any Person shall have publicly announced an intention (whether or not conditional) to make a bona fide Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to the date of termination) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or Section 8.2(c) or by Parent pursuant to Section 8.4(b);

(ii)this Agreement is terminated by Parent pursuant to Section 8.4(a); or

(iii)this Agreement is terminated by the Company pursuant to Section 8.3(a);

then the Company shall promptly, but in no event later than two (2) business days after the date of such termination, pay the Termination Fee; provided, however, that (A) no Termination Fee shall be payable pursuant to clause (i) of this paragraph (b) unless and until, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to an Acquisition Proposal and such Acquisition Proposal is thereafter consummated (substituting “50%” for “15%” in the definition thereof); (B) such Termination Fee payable to Parent pursuant to clause (i) of this paragraph (b) shall be promptly payable after the consummation of such Acquisition Proposal (but in no event later than two (2) business days of such consummation), and (C) any Termination Fee payable pursuant to clause (iii) of this paragraph (b) shall be satisfied immediately prior to or substantially concurrently with, and as a condition of, such termination; provided that, if the Termination Fee is payable pursuant to Section 8.5(b)(i), the Termination Fee shall be reduced by any amount of Reimbursable Expenses (as defined below) the Company has previously paid to Parent pursuant to Section 8.5(d).  The Company shall satisfy its obligation to pay a Termination Fee by (A) contributing to a newly formed Irish private limited company, centrally managed and controlled, domiciled and resident in Ireland, which may elect to be disregarded for U.S. federal income tax purposes (“Irish Holdco”), immediately available funds and any fees required to be paid pursuant to this Section 8.5 in exchange for one common share of Irish Holdco and (B) and by selling the Irish Holdco common share to Parent Holdco in exchange for US $1.00. For the avoidance of doubt, any Irish stamp duty liability arising in connection with the sale of Irish Holdco will be payable by Parent Holdco and Parent Holdco agrees to indemnify the Company against any such liability. As used in this Agreement, “Termination Fee” means (x) with respect to a payment required to be made by the Company an amount equal to $180,000,000 and (y) with respect to a payment required to be made by Parent an amount equal to $280,000,000.

(c)If (i) Parent or the Company shall have terminated this Agreement pursuant to Section 8.2(a) or 8.2(b) (with respect to an Order imposed by a Government Antitrust

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Entity), (ii) at the time of such termination, all conditions to the Closing set forth in this Agreement, other than the condition set forth in Section 7.1(a) (with respect to an Order imposed by a Government Antitrust Entity), Section 7.1(c) and/or Section 7.2(d) (with respect to a legal proceeding involving antitrust and/or competition Law) were satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such termination), and (iii) at the time of such termination, the condition set forth in Section 7.1(a) (with respect to an Order imposed by a Government Antitrust Entity), Section 7.1(c) or Section 7.2(d) (with respect to a legal proceeding involving antitrust and/or competition Law) has not been satisfied, then Parent shall promptly, but in no event later than two (2) business days after the date of such termination, pay the Company the Termination Fee, payable by wire transfer of immediately available funds to such account as the Company may designate in writing to Parent; provided that Parent shall not be obligated to pay the Company a Termination Fee under this Section 8.5(c) if the Company has breached its obligations under Section 6.3(g) in any manner that shall have contributed in any material respect to the failure of the conditions set forth in Section 7.1(a) (with respect to an Order imposed by a Government Antitrust Entity), Section 7.1(c) or Section 7.2(d) (with respect to a legal proceeding involving antitrust and/or competition Law) to be satisfied.

(d)Whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the Merger and the other transactions contemplated by this Agreement shall be paid by the party incurring such expense; provided, however, that if this Agreement is terminated pursuant to Sections 8.2(a), 8.2(c) or 8.4(b), and prior to the time of termination and after the date of this Agreement a bona fide Acquisition Proposal shall have been publicly announced or otherwise communicated to the board of directors of the Company and not withdrawn prior to the date of such termination, the Company shall reimburse Parent for its documented out-of-pocket expenses up to a maximum of $15,000,000 (the “Reimbursable Expenses”) promptly following receipt of an invoice from Parent documenting such expenses. Any Reimbursable Expenses paid to Parent shall be credited against any Termination Fee paid to Parent.

(e)The parties acknowledge that the agreements contained in this Section 8.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the parties would not enter into this Agreement. Accordingly, if (1) the Company fails to promptly effect the transfer of the amounts due pursuant to Section 8.5(b) or Section 8.5(d), including through the funding and transfer of Irish Holdco as contemplated in Section 8.5(b), or (2) Parent fails to promptly pay the amounts due pursuant to Section 8.5(b) or Section 8.5(c) (for purposes of this Section 8.5(e), the party obligated to make a payment, the “Paying Party” and the party entitled to receive a payment, the “Receiving Party”) and in order to obtain such payment, the Receiving Party commences a suit that results in a judgment against the Paying Party, the Paying Party shall pay to the Receiving Party its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of such amount or portion thereof at the U.S. prime rate as shown at the end of the day on Bloomberg screen BTMM or PRIME INDEX HP, whichever is higher, on the date such payment was required to be made through the date of payment.  If a Termination Fee is required to be paid pursuant to Section 8.5, the Receiving Party’s right to the Termination Fee from the Paying Party pursuant to this Section 8.5 and any additional amounts pursuant to this Section 8.5(e) shall be

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the sole and exclusive remedies of the Receiving Party and its respective Affiliates against the Paying Party, its Subsidiaries and any of their respective former, current, or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure the Merger or the other transactions contemplated by this Agreement to be consummated, and upon payment of such amount, none of the Paying Party, its Subsidiaries or any of their respective former, current, or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the Merger or the other transactions contemplated by this Agreement; provided further, however, that in no event will the Receiving Party be entitled to both the payment of the Termination Fee, and specific performance of this Agreement and in no event shall the Paying Party  be required to pay the Termination Fee on more than one occasion.  The parties hereto expressly acknowledge and agree that: (i) in light of the difficulty of accurately determining actual damages with respect to the foregoing, upon any such termination of this Agreement, where a Receiving Party is entitled to receiving the Termination Fee, the payment of the Termination Fee pursuant to Section 8.5(b) or Section 8.5(c), respectively, and any additional amount due pursuant to this Section 8.5(e), which constitutes a reasonable estimate of the monetary damages that will be suffered by the Receiving Party by reason of breach or termination of this Agreement, shall be in full and complete satisfaction of any and all monetary damages of the Receiving Party arising out of or related to this Agreement, the Merger or the other transactions contemplated by this Agreement (including any breach by the Company, Parent Holdco, Parent or Merger Sub, as applicable), the termination of this Agreement, the failure to consummate the Merger or the other transactions contemplated by this Agreement, and any claims or actions under applicable Law arising out of any such breach, termination or failure; and (ii) in the event this Agreement is terminated under circumstances where the Receiving Party is entitled to a Termination Fee, in no event shall a Receiving Party be entitled to seek or obtain any recovery or judgment in excess of the applicable Termination Fee (plus, in the case that a Termination Fee is not timely paid, the amounts described in the first sentence of this Section 8.5(e)) against the Paying Party, its Subsidiaries or any of their respective former, current, or future general or limited partners, stockholders, directors, officers, employees, managers, members, Affiliates, agents or other Representatives or any of their respective assets, and in no event shall the Receiving Party be entitled to seek or obtain any other damages of any kind, including consequential, special, indirect or punitive damages for, or with respect to, this Agreement or the transactions contemplated hereby (including any breach by the Paying Party), the termination of this Agreement, the failure to consummate the Merger or the other transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure; provided, however, that this Section 8.5(e) shall not limit the right of the parties hereto to specific performance of this Agreement pursuant to Section 9.5(c) prior to the termination of this Agreement in accordance with its terms.

ARTICLE IX

Miscellaneous and General

9.1Survival.  This ARTICLE IX and the agreements of the Company, Parent and Merger Sub contained in ARTICLE IV and Sections 6.7 (Employee Benefits) and 6.9

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(Indemnification; Directors’ and Officers’ Insurance) shall survive the consummation of the Merger and any other transactions contemplated by this Agreement.  This ARTICLE IX and the agreements of the Company, Parent and Merger Sub contained in Section 8.5 (Effect of Termination and Abandonment) and the Confidentiality Agreement shall survive the termination of this Agreement.  All other representations, warranties, covenants and agreements in this Agreement shall not survive the consummation of the Merger, the other transactions contemplated by this Agreement or the termination of this Agreement.

9.2Modification or Amendment.  Subject to the provisions of the applicable Laws, at any time prior to the Effective Time, the parties hereto may modify or amend this Agreement, by written agreement executed and delivered by duly authorized officers of the respective parties.

9.3Waiver of Conditions.  The conditions to each of the parties’ obligations to consummate the Merger are for the sole benefit of such party and may be waived by such party in whole or in part to the extent permitted by applicable Laws.  The failure of any party to assert any of its rights hereunder or applicable Law shall not constitute a waiver of such rights and, except as otherwise expressly provided herein, no single or partial exercise by any party of any of its rights hereunder precludes any other or further exercise of such rights or any other rights hereunder or applicable Law.

9.4Counterparts.  This Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.

9.5GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL; SPECIFIC PERFORMANCE.

(a)THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF TO THE EXTENT THAT SUCH PRINCIPLES WOULD DIRECT A MATTER TO ANOTHER JURISDICTION.  The parties hereby irrevocably submit to the personal jurisdiction of the Court of Chancery of the State of Delaware or, if such Court of Chancery shall lack subject matter jurisdiction, the federal courts of the United States of America located in the County of New Castle, Delaware, solely in respect of the interpretation and enforcement of the provisions of (and any claim or cause of action arising under or relating to) this Agreement and of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or of any such document, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts, and the parties hereto irrevocably agree that all claims relating to such action, proceeding or transactions shall be heard and determined in such courts.  The parties hereby consent to and grant any such court jurisdiction over the person of such parties and, to the extent permitted by Law, over the subject matter of such dispute and agree that mailing of process or

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other papers in connection with any such action or proceeding in the manner provided in Section 9.6 or in such other manner as may be permitted by Law shall be valid and sufficient service thereof.

(b)EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.5.

(c)The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof (and, more specifically, that irreparable damage would likewise occur if any of the transactions contemplated by this Agreement were not consummated and the Company’s stockholders did not receive the aggregate consideration payable to them in accordance with the terms and subject to the conditions of this Agreement), and, accordingly, that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof (including the obligation of the parties hereto to consummate the transactions contemplated by this Agreement and the obligation of Parent and Merger Sub to pay, and the Company’s stockholders’ right to receive, the aggregate consideration payable to them pursuant to the transactions contemplated by this Agreement, in each case in accordance with the terms and subject to the conditions of this Agreement) in the Court of Chancery of the State of Delaware or, if said Court of Chancery shall lack subject matter jurisdiction, any federal court of the United States of America located in the County of New Castle, Delaware, this being in addition to any other remedy to which such party is entitled at law or in equity.  In the event that any action is brought in equity to enforce the provisions of this Agreement, no party hereto shall allege, and each party hereto hereby waives the defense or counterclaim, that there is an adequate remedy at law.  Each party hereto further agrees that no other party hereto or any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9.5(c), and each party hereto irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

9.6Notices.  Any notice, request, instruction or other document to be given hereunder by any party to the others shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, by facsimile, email or overnight courier:

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If to Parent Holdco, Parent or Merger Sub:
Shire Pharmaceuticals International
5 Riverwalk, Citywest Business Campus
Dublin
Ireland
Attention: Michael Garry
Email: mgarry@shire.com
Fax: +353 (0) 1 429 7701
with a copy to:
Shire
300 Shire Way
Lexington, MA 02421
Attention: Bill Mordan, General Counsel
Email: wrmordan@shire.com
Fax: (617) 613-4004
and
Ropes & Gray LLP
Prudential Tower
800 Boylston Street
Boston, MA 02199
Attention:	Christopher D. Comeau
	Paul M. Kinsella
Email:	christopher.comeau@ropesgray.com
	paul.kinsella@ropesgray.com
Fax:	(617) 951-7050
If to the Company:
Dyax Corp.
55 Network Drive
Burlington, MA 01803
Attention:	Andrew Ashe
	Executive Vice President and General Counsel
E-mail: aashe@dyax.com
Fax: (617) 225-7708
with a copy to:
Sullivan & Cromwell LLP
125 Broad Street

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New York, NY  10004
Attention:	Krishna Veeraraghavan
Fax:	(212) 558-3588
Email:	veeraraghavank@sullcrom.com

or to such other persons or addresses as may be designated in writing by the party to receive such notice as provided above.  Any notice, request, instruction or other document given as provided above shall be deemed given to the receiving party upon actual receipt, if delivered personally; three (3) business days after deposit in the mail, if sent by registered or certified mail; upon confirmation of successful transmission, if sent by facsimile or email (provided that if given by facsimile or email such notice, request, instruction or other document shall be followed up within one (1) business day by dispatch pursuant to one of the other methods described herein); or on the next business day after deposit with an overnight courier, if sent by an overnight courier.

9.7          Entire Agreement.  This Agreement and the CVR Agreement (including any annexes and exhibits hereto and thereto), the Company Disclosure Letter, the Confidentiality Agreement, dated October 9, 2015, between Parent Holdco and the Company (as may be amended from time to time, the “Confidentiality Agreement”), constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties both written and oral, among the parties, with respect to the subject matter hereof.  EACH PARTY HERETO AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, NEITHER PARENT AND MERGER SUB NOR THE COMPANY MAKES OR RELIES ON ANY OTHER REPRESENTATIONS, WARRANTIES OR INDUCEMENTS, AND EACH HEREBY DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES OR INDUCEMENTS, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF ANY OTHER INFORMATION, MADE BY, OR MADE AVAILABLE BY, ITSELF OR ANY OF ITS REPRESENTATIVES, WITH RESPECT TO, OR IN CONNECTION WITH, THE NEGOTIATION, EXECUTION OR DELIVERY OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE OTHER OR THE OTHER’S REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING.

9.8          No Third Party Beneficiaries.  Except as provided in Section 6.9 (Indemnification; Directors’ and Officers’ Insurance) only, Parent Holdco, Parent and the Company hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein.  The parties hereto further agree that the rights of third party beneficiaries under Section 6.9 shall not arise unless and until the Effective Time occurs.  The representations and warranties in this Agreement are the product of negotiations among the parties hereto and are for the sole benefit of the parties hereto.  Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance with Section 9.3 without notice or liability to any other Person.  In some instances, the representations and warranties in this Agreement may represent an allocation among the parties hereto of risks associated with particular matters regardless of the knowledge of any of

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the parties hereto.  Consequently, Persons other than the parties hereto may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

9.9          Obligations of Parent Holdco, Parent and of the Company.  Whenever this Agreement requires a Subsidiary of Parent Holdco or Parent to take any action, such requirement shall be deemed to include an undertaking on the part of Parent Holdco and Parent to cause such Subsidiary to take such action.  Whenever this Agreement requires a Subsidiary of the Company to take any action, such requirement shall be deemed to include an undertaking on the part of the Company to cause such Subsidiary to take such action and, after the Effective Time, on the part of the Surviving Corporation to cause such Subsidiary to take such action.

9.10       Definitions.  Each of the terms set forth in ANNEX A is defined in the Section of this Agreement set forth opposite such term.

9.11       Severability.  The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.  If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

9.12       Interpretation; Construction.

(a)          The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.  Where a reference in this Agreement is made to an Article, Section, Annex or Exhibit, such reference shall be to an Article or Section of or Annex or Exhibit to this Agreement unless otherwise indicated.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” Reference to a particular contract (including this Agreement), document or instrument means such contract, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof.  Reference herein to “made available” (or words of similar import) in respect of information made available (or words of similar import) by the Company mean any information made available to Parent (including any information made available prior to the date hereof in the virtual data room maintained by the Company). Any reference to a particular Law means such Law as amended, modified or supplemented (including all rules and regulations promulgated thereunder) and, unless otherwise provided, as in effect from time to time.  The terms “cash,” “dollars” and “$” mean United States Dollars.  The use of the terms “hereunder,” “hereof,” “hereto” and words of similar import shall refer to this Agreement as a whole and not to any particular Article, Section, paragraph or clause of, or Annex or Exhibit to, this Agreement.

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(b)          The parties have participated jointly in negotiating and drafting this Agreement.  In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly 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.

(c)          Each party hereto has or may have set forth information in its respective disclosure letter in a section thereof that corresponds to the section of this Agreement to which it relates.  The fact that any item of information is disclosed in a disclosure letter to this Agreement shall not be construed to mean that such information is required to be disclosed by this Agreement.

9.13       Assignment.  This Agreement shall not be assignable by operation of law or otherwise; provided, however, that Parent may designate, by written notice to the Company, another wholly owned direct or indirect Subsidiary to be a Constituent Corporation in lieu of Merger Sub, in which event all references herein to Merger Sub shall be deemed references to such other Subsidiary, except that all representations and warranties made herein with respect to Merger Sub as of the date of this Agreement shall be deemed representations and warranties made with respect to such other Subsidiary as of the date of such designation; provided that any such designation shall not impede or delay the consummation of the Merger or the other transactions contemplated by this Agreement or otherwise materially impede the rights of the stockholders of the Company under this Agreement.  Any purported assignment in violation of this Agreement is void.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.

DYAX CORP.
By:	/s/ Gustav A. Christensen
	Name:	Gustav A. Christensen
	Title:	President and Chief Executive Officer

[Signature Page to Agreement and Plan of Merger]

SHIRE PHARMACEUTICALS INTERNATIONAL
By:	/s/ Michael Garry
	Name:	Michael Garry
	Title:	Director
PARQUET COURTS, INC.
By:	/s/ John Miller
	Name:	John Miller
	Title:	President and Treasurer
SHIRE PLC
By:	/s/ Flemming Ornskov
	Name:	Flemming Ornskov
	Title:	Chief Executive Officer

[Signature Page to Agreement and Plan of Merger]

ANNEX A

DEFINED TERMS

Term	Section
Acquisition Proposal	6.2(b)
Action	5.1(h)(iv)
Affiliate	5.1(a)
Agreement	Preamble
Alternative Acquisition Agreement	6.2(c)(ii)
Applicable Date	5.1(e)(i)
Bankruptcy and Equity Exception	5.1(c)(i)
Benefit Plans	5.1(h)(i)
BLA	5.1(r)(vii)(B)
Book-Entry Share	4.1(a)
business day	1.2
Bylaws	2.2
Certificate	4.1(a)
Certificate of Merger	1.3
Change of Recommendation	6.2(c)
Charter	2.1
Closing	1.2
Closing Date	1.2
Code	4.2(h)
Collaboration Partner	5.1(r)(vi)
Collective Bargaining Agreement	5.1(i)(i)
Company	Preamble
Company 401(k) Plan	6.7(e)
Company Disclosure Letter	5.1
Company Intellectual Property	5.1(p)(xv)
Company Material Adverse Effect	5.1(a)
Company Option	4.3(a)
Company Recommendation	5.1(c)(ii)
Company Reports	5.1(e)(i)
Company Requisite Vote	5.1(c)(i)
Company RSU	4.3(b)
Confidentiality Agreement	9.7
Constituent Corporations	Preamble
Continuing Employee	6.7(a)
Contract	5.1(d)(ii)
CVR	5.1(d)(ii)
CVR Agreement	Recitals
D&O Insurance	6.9(b)
DGCL	1.1
Dissenting Stockholders	4.1(a)
Effective Time	1.3

A-1

Environmental Law	5.1(n)
ERISA	5.1(h)(i)
ERISA Affiliate	5.1(h)(iii)
ERISA Plan	5.1(h)(ii)
ESPP	4.3(c)
Exchange Act	5.1(d)(i)
Exchange Fund	4.2(a)
Excluded Shares	4.1(a)
FCPA	5.1(j)(ii)
FDA	5.1(r)(i)
Final Offering	4.3(c)
Fractional CVR	4.2(f)
GAAP	5.1(e)(iii)
Government Antitrust Entity	6.3(g)(i)
Governmental Entity	5.1(d)(i)
Guaranteed Obligations	6.12
Hazardous Substance	5.1(n)
Health Authority	5.1(r)(vi)
Health Law	5.1(r)(v)
HSR Act	5.1(d)(i)
Incentive Plans	6.7(d)
Indemnified Parties	6.9
Insurance Policies	5.1(q)
IND	5.1(r)(vii)(B)
Intellectual Property	5.1(p)(xv)
Irish Holdco	8.5(b)
IRS	5.1(h)(i)
Knowledge	5.1(g)
Laws	5.1(j)(i)
LFRP	5.1(b)(C)
Licenses	5.1(j)(i)
Lien	5.1(b)
Material Contract	5.1(k)(i)
Medicine	5.1(r)(v)
Merger	Recitals
Merger Sub	Preamble
Multiemployer Plan	5.1(h)(iii)
NASDAQ	5.1(a)(C)
NDA	5.1(r)(vii)(B)
New Plans	6.7(b)
Old Plans	6.7(b)
Order	7.1(a)
ordinary course of business	5.1(g)
Outside Date	8.2(a)
Parent	Preamble
Parent 401(k) Plan	6.7(e)

A-2

Parent Holdco	Preamble
Patents	5.1(p)(xv)
Paying Agent	4.2(a)
Paying Party	8.5(e)
Permitted Liens	5.1(l)
Person	4.2(d)
Per Share Cash Consideration	4.1(a)
Per Share Merger Consideration	4.1(a)
Prohibited Payment	5.1(j)(ii)
Proxy Statement	6.3(b)
Receiving Party	8.5(e)
Regulatory Authorities	5.1(r)(i)
Regulatory Licenses	5.1(r)(i)
Reimbursable Expenses	8.5(d)
Representatives	6.2(a)
Rights Agent	Recitals
Sarbanes-Oxley Act	5.1(e)(ii)
Scheduled Intellectual Property	5.1(p)(i)
SEC	5.1
Securities Act	5.1(d)(i)
Securities Laws	5.1(b)
Share, Shares	4.1(a)
Stockholders Meeting	6.3(a)
Stock Plans	4.3(a)
Subsidiary	5.1(a)
Superior Proposal	6.2(b)
Surviving Corporation	1.1
Takeover Statute	5.1(m)
Tax, Taxes	5.1(o)
Tax Return	5.1(o)
Tax Sharing Agreements	5.1(o)
Termination Date	8.2(a)
Termination Fee	8.5(b)
Trade Secrets	5.1(p)(xv)
Trademarks	5.1(p)(xv)
Transaction Litigation	6.13

A-3

EXHIBIT A

FORM OF CERTIFICATE OF INCORPORATION OF
THE SURVIVING CORPORATION

Ex. A-1

STATE of DELAWARE

AMENDED AND RESTATED

CERTIFICATE OF

INCORPORATION OF

DYAX CORP.

* * * * *

FIRST: The name of the corporation is Dyax Corp. (the “Corporation”).

SECOND: The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (the “DGCL”).

FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 1,000, and the par value of each such share is $0.01, amounting in the aggregate to $10.00. Each share of shall be entitled to one vote.

FIFTH: The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the Corporation.

SIXTH: Elections of directors need not be by written ballot unless the bylaws of the Corporation so provide.

SEVENTH: The Corporation expressly elects not to be governed by Section 203 of the DGCL.

NINTH: (1) A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended after approval by the stockholders of this NINTH ARTICLE to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

(2) Any repeal or modification of this NINTH ARTICLE shall be prospective and shall not affect the rights under this NINTH ARTICLE in effect at the time of the alleged occurrence of any act or omission to act giving rise to liability or indemnification.

TENTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation in any manner permitted by the DGCL and all rights and powers conferred herein on stockholders, directors and officers, if any, are subject to this reserved power.

* * * * *

IN WITNESS WHEREOF, the undersigned has signed this Certificate of Incorporation on [     ] day of [         ], 2015.

/s/ [      ]

Name:

Title:

EXHIBIT B

FORM OF BYLAWS OF
THE SURVIVING CORPORATION

Ex. B-1

STATE of DELAWARE

AMENDED AND RESTATED

BYLAWS

OF

DYAX CORP.

* * * * *

ARTICLE 1
OFFICES

Section 1.01. Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware.

Section 1.02. Other Offices. In addition to its registered office in the State of Delaware, the Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

Section 1.03. Books. The books of the Corporation may be kept within or without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE 2

MEETINGS OF STOCKHOLDERS

Section 2.01. Time and Place of Meetings. All meetings of stockholders shall be held at such place, either within or without the State of Delaware, on such date and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a designation by the Board of Directors).

Section 2.02. Annual Meetings. Unless directors are elected by written consent in lieu of an annual meeting as permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (the “DGCL”), an annual meeting of stockholders, commencing with the year 2016, shall be held for the election of directors and to transact such other business as may properly be brought before the meeting. Stockholders may, unless the certificate of incorporation otherwise provides, act by written consent to elect directors; provided, however, that if such consent is less than unanimous, such action by written consent may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action.

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Section 2.03. Special Meetings. Special meetings of stockholders may be called by the Board of Directors or the Chairman of the Board and shall be called by the Secretary at the request in writing of holders of record of a majority of the outstanding capital stock of the Corporation entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.

Section 2.04. Notice of Meetings and Adjourned Meetings; Waivers of Notice. (a)  Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by the DGCL, such notice shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting. Unless these bylaws otherwise require, when a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

(b)A written waiver of any such notice signed by the person entitled thereto, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.  Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 2.05. Quorum. Unless otherwise provided under the certificate of incorporation, these bylaws or the DGCL, the presence, in person or by proxy, of the holders of a majority of the outstanding capital stock of the Corporation entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, a majority in voting interest of the stockholders present in person or represented by proxy may adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented.  At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.

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Section 2.06. Voting. (a) Unless otherwise provided in the certificate of incorporation or the DGCL, each stockholder shall be entitled to one vote for each outstanding share of capital stock of the Corporation held by such stockholder.  Any share of capital stock of the Corporation held by the Corporation shall have no voting rights. Unless otherwise provided in the DGCL, the certificate of incorporation or these bylaws, the affirmative vote of a majority of the shares of capital stock of the Corporation present, in person or by written proxy, at a meeting of stockholders and entitled to vote on the subject matter shall be the act of the stockholders.

(b)Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, appointed by an instrument in writing, subscribed by such stockholder or by his attorney thereunto authorized, or by proxy sent by cable, telegram or by any means of electronic communication permitted by law, which results in a writing from such stockholder or by his attorney, and delivered to the secretary of the meeting. No proxy shall be voted after three (3) years from its date, unless said proxy provides for a longer period.

(c)Votes may be cast by any stockholder entitled to vote in person or by proxy. In determining the number of votes cast for or against a proposal or nominee, shares abstaining from voting on a matter (including elections) will not be treated as a vote cast.

Section 2.07. Action by Consent. (a) Unless otherwise provided in the certificate of incorporation and subject to the proviso in Section 2.02, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding capital stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to the Corporation as provided in Section 2.07(b).

(b)Every written consent shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective to take the

3

corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered in the manner required by this section and the DGCL to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded.  Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.

Section 2.08. Organization. At each meeting of stockholders, the Chairman of the Board, if one shall have been elected, or in the Chairman’s absence or if one shall not have been elected, the director designated by the vote of the majority of the directors present at such meeting, shall act as chairman of the meeting. The Secretary (or in the Secretary’s absence or inability to act, the person whom the chairman of the meeting shall appoint secretary of the meeting) shall act as secretary of the meeting and keep the minutes thereof.

Section 2.09. Order of Business. The order of business at all meetings of stockholders shall be as determined by the chairman of the meeting.

ARTICLE 3
DIRECTORS

Section 3.01. General Powers.  Except as otherwise provided in the DGCL or the certificate of incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

Section 3.02. Number, Election and Term of Office. The number of directors which shall constitute the whole Board shall be fixed from time to time by resolution of the Board of Directors but shall not be less than one or more than nine. The directors shall be elected at the annual meeting of the stockholders by written ballot, except as provided in Section 2.02 and Section 3.12 herein, and each director so elected shall hold office until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal.

Directors need not be stockholders.

Section 3.03. Quorum and Manner of Acting. Unless the certificate of incorporation or these bylaws require a greater number, a majority of the total number of directors shall constitute a quorum for the transaction of business, and the affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. When a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Board of Directors may transact any business which might have been transacted at the original meeting. If a quorum shall not be present at any meeting of the Board of Directors the directors present

4

thereat shall adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 3.04. Time and Place of Meetings. The Board of Directors shall hold its meetings at such place, either within or without the State of Delaware, and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a determination by the Board of Directors).

Section 3.05. Annual Meeting. The Board of Directors shall meet for the purpose of organization, the election of officers and the transaction of other business, as soon as practicable after each annual meeting of stockholders, on the same day and at the same place where such annual meeting shall be held. Notice of such meeting need not be given. In the event such annual meeting is not so held, the annual meeting of the Board of Directors may be held at such place either within or without the State of Delaware, on such date and at such time as shall be specified in a notice thereof given as hereinafter provided in Section 3.07 herein or in a waiver of notice thereof signed by any director who chooses to waive the requirement of notice.

Section 3.06. Regular Meetings. After the place and time of regular meetings of the Board of Directors shall have been determined and notice thereof shall have been once given to each member of the Board of Directors, regular meetings may be held without further notice being given.

Section 3.07. Special Meetings.  Special meetings of the Board of Directors may be called by the Chairman of the Board or the President and shall be called by the Chairman of the Board, President or Secretary on the written request of one director. Notice of special meetings of the Board of Directors shall be given to each director at least three days before the date of the meeting in such manner as is determined by the Board of Directors.

Section 3.08. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation.  The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.  In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to any of the following matters: (a) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to the stockholders for approval or (b)

5

adopting, amending or repealing any bylaw of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.

Section 3.09. Action by Consent. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions, are filed with the minutes of proceedings of the Board or committee.  Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

Section 3.10. Telephonic Meetings. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or such committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

Section 3.11. Resignation. Any director may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors or to the Secretary of the Corporation. The resignation of any director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

Section 3.12. Vacancies. Unless otherwise provided in the certificate of incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected. Each director so chosen shall hold office until his or her successor is elected and qualified, or until his or her earlier death, resignation or removal. If there are no directors in office, then an election of directors may be held in accordance with the DGCL. Unless otherwise provided in the certificate of incorporation, when one or more directors shall resign from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as

6

provided in the filling of other vacancies.

Section 3.13. Removal. Any director or the entire Board of Directors may be removed, with or without cause, at any time by the affirmative vote of the holders of a majority of the outstanding capital stock of the Corporation then entitled to vote at any election of directors and the vacancies thus created may be filled in accordance with Section 3.12 herein.

Section 3.14. Compensation. Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board of Directors shall have authority to fix the compensation of directors, including fees and reimbursement of expenses.

ARTICLE 4

OFFICERS

Section 4.01. Principal Officers.  The principal officers of the Corporation shall be a President, a Treasurer and a Secretary who shall have the duty, among other things, to record the proceedings of the meetings of stockholders and directors in a book kept for that purpose. The Corporation may also have such other principal officers, including one or more Controllers, as the Board may in its discretion appoint.  One person may hold the offices and perform the duties of any two or more of said offices, except that no one person shall hold the offices and perform the duties of President and Secretary.

Section 4.02. Election, Term of Office and Remuneration. The principal officers of the Corporation shall be elected annually by the Board of Directors at the annual meeting thereof. Each such officer shall hold office until his or her successor is elected and qualified, or until his or her earlier death, resignation or removal. The remuneration of all officers of the Corporation shall be fixed by the Board of Directors. Any vacancy in any office shall be filled in such manner as the Board of Directors shall determine.

Section 4.03. Subordinate Officers. In addition to the principal officers enumerated in Section 4.01 herein, the Corporation may have one or more Assistant Treasurers, Assistant Secretaries and Assistant Controllers and such other subordinate officers, agents and employees as the Board of Directors may deem necessary, each of whom shall hold office for such period as the Board of Directors may from time to time determine. The Board of Directors may delegate to any principal officer the power to appoint and to remove any such subordinate officers, agents or employees.

Section 4.04. Removal. Except as otherwise permitted with respect to subordinate officers, any officer may be removed, with or without cause, at any time, by resolution adopted by the Board of Directors.

Section 4.05. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors (or to a principal officer if the Board of

7

Directors has delegated to such principal officer the power to appoint and to remove such officer). The resignation of any officer shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

Section 4.06. Powers and Duties. The officers of the Corporation shall have such powers and perform such duties incident to each of their respective offices and such other duties as may from time to time be conferred upon or assigned to them by the Board of Directors.

ARTICLE 5

CAPITAL STOCK

Section 5.01.  Certificates For Stock; Uncertificated Shares.  The shares of the Corporation shall be represented by certificates, provided that the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation.  Except as otherwise provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of shares represented by certificates of the same class and series shall be identical. Every holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of the Corporation by the Chairman or Vice Chairman of the Board of Directors, or the President or Vice President, and by the Treasurer or an assistant Treasurer or the Secretary or an assistant Secretary of such Corporation representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. A Corporation shall not have power to issue a certificate in bearer form.

Section 5.02. Transfer of Shares. Shares of the stock of the Corporation may be transferred on the record of stockholders of the Corporation by the holder thereof or by such holder’s duly authorized attorney upon surrender of a certificate therefor properly endorsed or upon receipt of proper transfer instructions from the registered holder of uncertificated shares or by such holder’s duly authorized attorney and upon compliance with appropriate procedures for transferring shares in uncertificated form, unless waived by the Corporation.

Section 5.03. Authority for Additional Rules Regarding Transfer. The Board of Directors shall have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration of certificated or uncertificated shares of the stock of the Corporation, as well as for the issuance of

8

new certificates in lieu of those which may be lost or destroyed, and may require of any stockholder requesting replacement of lost or destroyed certificates, bond in such amount and in such form as they may deem expedient to indemnify the Corporation, and/or the transfer agents, and/or the registrars of its stock against any claims arising in connection therewith.

ARTICLE 6

GENERAL PROVISIONS

Section 6.01. Fixing the Record Date. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the Board of Directors may fix a new record date for the adjourned meeting.

(b)In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors.  If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by the DGCL, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the DGCL, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

(c)In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the

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stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

Section 6.02. Dividends. Subject to limitations contained in the DGCL and the certificate of incorporation, the Board of Directors may declare and pay dividends upon the shares of capital stock of the Corporation, which dividends may be paid either in cash, in property or in shares of the capital stock of the Corporation.

Section 6.03. Year. The fiscal year of the Corporation shall commence on January 1 and end on December 31 of each year.

Section 6.04. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.

Section 6.05. Voting of Stock Owned by the Corporation. The Board of Directors may authorize any person, on behalf of the Corporation, to attend, vote at and grant proxies to be used at any meeting of stockholders of any corporation (except this Corporation) in which the Corporation may hold stock.

Section 6.06. Amendments. These bylaws or any of them, may be altered, amended or repealed, or new bylaws may be made, by the affirmative vote of a majority of the stockholders of entitled to vote thereon at any annual or special meeting thereof or by the Board of Directors.

* * * * *

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EXHIBIT C

FORM OF CONTINGENT VALUE RIGHTS AGREEMENT

CONTINGENT VALUE RIGHTS AGREEMENT

By and between

SHIRE PLC

and

AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC

as Rights Agent

Dated as of [·], 2015

TABLE OF CONTENTS

		Page
Article I
Definitions
1.1	Definitions	2
1.2	Additional Definitions	4
1.3	Other Definitional Provisions	5
Article II
Contingent Value Rights
2.1	CVRs	5
2.2	Nontransferable	6
2.3	No Certificate; Registration; Registration of Transfer; Change of Address	6
2.4	Payment Procedures	7
2.5	No Voting, Dividends or Interest; No Equity or Ownership Interest in Parent Holdco	9
2.6	Enforcement of Rights of Holders	9
Article III
The Rights Agent
3.1	Certain Duties and Responsibilities	9
3.2	Certain Rights of the Rights Agent	9
3.3	Resignation and Removal; Appointment of Successor	11
3.4	Acceptance of Appointment by Successor	11
Article IV
Covenants
4.1	List of Holders	12
4.2	Payment of Milestone Payment	12
4.3	Assignment Transactions	12
4.4	Diligent Efforts	12

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Article V
Amendments
5.1	Amendments without Consent of Holders	13
5.2	Amendments with Consent of Holders	14
5.3	Execution of Amendments	14
5.4	Effect of Amendments	14
Article VI
Miscellaneous and General
6.1	Termination	14
6.2	Notices to the Rights Agent and Parent Holdco	15
6.3	Notice to Holders	16
6.4	Counterparts	16
6.5	Governing Law; Jurisdiction; WAIVER OF JURY TRIAL	16
6.6	Other Remedies	18
6.7	Entire Agreement	18
6.8	Third-Party Beneficiaries; Action by Acting Holders	18
6.9	Severability	18
6.10	Assignment	19
6.11	Benefits of Agreement	19
6.12	Legal Holidays	19
6.13	Interpretation; Construction	19

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CONTINGENT VALUE RIGHTS AGREEMENT

CONTINGENT VALUE RIGHTS AGREEMENT, dated as of [·], 2015 (this “Agreement”), by and between Shire plc, a company incorporated in Jersey (“Parent Holdco”), and American Stock Transfer & Trust Company, LLC, a New York limited liability trust company, as rights agent (the “Rights Agent”), in favor of each person who from time to time holds one or more contingent value rights (the “CVRs”) to receive cash payments in the amounts and subject to the terms and conditions set forth herein.

RECITALS

WHEREAS, this Agreement is entered into pursuant to the Agreement and Plan of Merger, dated November 2, 2015 (the “Merger Agreement”), by and among Dyax Corp., a Delaware corporation (the “Company”), Shire Pharmaceuticals International, a company incorporated in Ireland (“Parent”), Parquet Courts, Inc., a Delaware corporation wholly owned by Parent (“Merger Sub”), and Parent Holdco, pursuant to which Merger Sub will merge with and into the Company with the Company surviving (the “Merger”), on the terms and subject to the conditions set forth therein;

WHEREAS, pursuant to the Merger Agreement, Parent Holdco has agreed to provide to the holders of shares of common stock, par value $0.01 per share of the Company (the “Shares”), holders of restricted stock units denominated in Shares (“RSU Holders”) and holders of stock options to purchase Shares (“Option Holders”) the right to receive the Milestone Payment (as defined below) during the Milestone Period (as defined below); and

WHEREAS, pursuant to this Agreement, the potential amount payable per CVR is $4.00 in cash, without interest.

NOW, THEREFORE, in consideration of the foregoing and the consummation of the transactions referred to above, Parent Holdco and the Rights Agent agree, for the equal and proportionate benefit of all Holders (as hereinafter defined), as follows:

ARTICLE I

Definitions

1.1Definitions.  Capitalized terms used in this Agreement and not otherwise defined shall have the meanings assigned to them in the Merger Agreement.  For purposes of this Agreement, the following terms shall have the following meanings:

(a)“Acting Holders” means, at the time of determination, Holders of at least thirty-five percent (35%) of the outstanding CVRs as set forth in the CVR Register.

“Assignment Transaction” means any transaction (including a sale of assets, spin-off, split-off or licensing transaction), other than a Change in Control, pursuant to which rights in and to the Product are sold, licensed, assigned or transferred to or acquired by any Person other than by Parent Holdco or any of Parent Holdco’s Subsidiaries.  For purposes of clarification, an “Assignment Transaction” shall not apply to sales of the Product made by Parent Holdco or its Affiliates or ordinary course licensing arrangements between Parent Holdco and its Affiliates, on the one hand, and third party licensees, distributors and contract manufacturers on the other hand, entered into in the ordinary course of business for purposes of developing, manufacturing, distributing and selling the Product.

“Board of Directors” means the board of directors of Parent Holdco or any other body performing similar functions, or any duly authorized committee of that board.

“Board Resolution” means a copy of a resolution of the Board of Directors that has been certified in writing by the chairman of the Board of Directors, the chief executive officer, chief financial officer, executive vice president, company secretary or a deputy company secretary of Parent Holdco to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, which has been delivered to the Rights Agent.

“Business Day” means any day other than a Saturday or Sunday or a day on which commercial banks are authorized or required by Law or executive order to be closed in New York City.

“Change in Control” means (a) a merger or consolidation involving Parent Holdco in which Parent Holdco is not the surviving entity, (b) any transaction involving Parent Holdco in which Parent Holdco is the surviving entity but in which the stockholders of Parent Holdco immediately prior to such transaction own less than fifty percent (50%) of Parent Holdco’s voting power immediately after the transaction or (c) any other transaction pursuant to which rights in and to the Product are transferred to or acquired by any Person, by operation of law, other than by Parent Holdco or any of Parent Holdco’s Subsidiaries.

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“Diligent Efforts” means, with respect to the Product, using such efforts and resources normally used by Persons of comparable size within the pharmaceutical industry for the development and seeking of regulatory approval for a pharmaceutical product having similar market potential as the Product at a similar stage of its development or product life, taking into account all relevant factors, including issues of market exclusivity (including patent coverage, regulatory and other exclusivity), product profile, including efficacy, safety, tolerability, methods of administration and convenience, product labeling (including anticipated product labeling), other product candidates, the competitiveness of alternative products in the marketplace or under development (other than any such product owned or controlled by Parent Holdco or any Affiliate or that Parent Holdco or any Affiliate is discovering, researching, developing, manufacturing or commercializing along with one or more collaborators), the launch or sales of a generic or biosimilar product, the regulatory structure involved, the regulatory environment and the expected profitability of the applicable product (including development costs, pricing and reimbursement, cost of goods and all other costs associated with the applicable product), and relevant technical, commercial, financial, legal, scientific and medical factors. For the avoidance of doubt, Section 4.4 shall apply to Parent Holdco and its successors and assigns.

“Holder” means a Person in whose name a CVR is registered in the CVR Register at the applicable time.

“Majority Holders” means, at the time of determination, Holders of at least a majority of the outstanding CVRs.

“Milestone” will be deemed to occur upon Parent Holdco’s or its Affiliates’ (or their respective successors or assigns) receipt of approval by the FDA of a biologic license application which approval grants Parent Holdco or its Affiliates (or their respective successors or assigns) the right to market and sell the Product in the United States in accordance with applicable Law for the prevention of attacks of type 1 and type 2 hereditary angioedema in patients with type 1 or type 2 hereditary angioedema, as evidenced by the publication of such approval by the FDA; provided that such approval (a) does not require the inclusion of a “boxed warning” (as defined in 21 CFR §201.57(c)(1)) in the product labeling, (b) does not require the implementation of a risk evaluation and mitigation strategy with elements to assure safe use required by the FDA under the authority granted to it in 28 U.S.C. § 355-1 other than one whose elements are limited to the distribution of educational materials and (c) is not granted by the FDA under subpart E of the Federal Drug and Cosmetic Act (21 CFR § 601); provided, further, for the avoidance of doubt, such approval may contain (x) a voluntary commitment to conduct a post-approval study or clinical trial or (y) a post-approval study or clinical trial required pursuant to 21 USC §355(o).

“Milestone Payment” means $4.00 per CVR.

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“Milestone Payment Date” means the date that is selected by Parent Holdco not more than ten (10) Business Days following the date of the achievement of the Milestone.

“Milestone Period” means the period commencing as of the date of this Agreement and ending 11:59 p.m., Eastern time, on December 31, 2019.

“Officer’s Certificate” means a certificate signed by the chief executive officer, chief financial officer, an executive vice president, in each case of Parent Holdco, in his or her capacity as such an officer, and delivered to the Rights Agent or any other person authorized to act on behalf of Parent Holdco.

“Opinion of Counsel” means a written opinion of counsel, who may be counsel for Parent Holdco or its Subsidiaries.

“Party” shall mean the Rights Agent, Parent Holdco and/or the Holder(s), as applicable.

“Permitted Transfer” means a transfer of CVRs (a) upon death of a Holder by will or intestacy; (b)  by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the death of the trustee, (c) pursuant to a court order; (d) by operation of law (including by consolidation or merger) or without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; or (e) in the case of CVRs payable to a nominee, from a nominee to a beneficial owner (and, if applicable, through an intermediary) or from such nominee to another nominee for the same beneficial owner, in each case to the extent allowable by The Depository Trust Company.

“Product” means the compound known as DX-2930, having the heavy chain and light chain as set forth in Appendix A.

“Rights Agent” means the Rights Agent named in the first paragraph of this Agreement, until a successor Rights Agent becomes such pursuant to the applicable provisions of this Agreement, and thereafter “Rights Agent” shall mean such successor Rights Agent.

1.2Additional Definitions.  For purposes of this Agreement, each of the following terms shall have the meaning specified in the Section set forth opposite to such term:

Term	Section
Acquiror	4.3(a)(i)
Aggregate Milestone Payment	2.4(a)
Agreement	Preamble
Company	Recitals

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CVR	Preamble
CVR Register	2.3(b)
Equity Awards Schedule	2.3(b)
Merger	Recitals
Merger Agreement	Recitals
Merger Sub	Recitals
Milestone Achievement Certificate	2.4(a)
Option Holders	Recitals
Parent	Recitals
Parent Holdco	Preamble
RSU Holders	Recitals
Shares	Recitals

1.3Other Definitional Provisions.  Unless the context expressly otherwise requires:

(a)the words “hereof,” “hereto,” “herein,” and “hereunder,” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(b)the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

(c)the terms “Dollars” and “$” mean United States Dollars;

(d)references herein to a specific Article, Section, or Annex shall refer, respectively, to Articles and Sections of, and Annexes to, this Agreement;

(e)wherever the word “include,” “includes,” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;

(f)the term “or” will not be deemed to be exclusive;

(g)references herein to any gender include the other gender; and

(h)any Law defined or referred to herein will refer to such Law as amended and the rules and regulations promulgated thereunder.

ARTICLE II

Contingent Value Rights

2.1CVRs.  The CVRs represent the rights of Holders to receive contingent cash payments pursuant to this Agreement.  The initial Holders shall be the (i) holders of Shares other than Excluded Shares immediately prior to the Effective Time and (ii) holders of Company Options and Company RSUs immediately prior to the

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Effective Time whose Company Options and Company RSUs are converted into the right to receive the Per Share Merger Consideration pursuant to Article IV of the Merger Agreement.

2.2Nontransferable.  The CVRs may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part, other than through a Permitted Transfer.  Any attempted transfer, in whole or in part, that is not a Permitted Transfer, will be void ab initio and of no effect.

2.3No Certificate; Registration; Registration of Transfer; Change of Address.

(a)The CVRs shall not be evidenced by a certificate or other instrument.

(b)The Rights Agent shall keep a register (the “CVR Register”) for the purpose of registering CVRs and transfers of CVRs as herein provided.  The CVRs shall, in the case of the holders of Shares immediately prior to the Effective Time, other than the Excluded Shares, be registered in the names and addresses of the holder as set forth in the form Parent Holdco furnishes or causes to be furnished to the Rights Agent pursuant to Section 4.1, and in a denomination equal to the number of Shares converted into the right to receive the Per Share Merger Consideration.  The CVR Register will initially show one position for Cede & Co representing all Shares held by DTC on behalf of street holders held by such holders as of immediately prior to the Effective Time.  In the case of RSU Holders and Option Holders, the CVRs shall be registered in the names and addresses of such RSU Holder or Option Holder, as applicable, and in a denomination equal to the number of Shares subject to the outstanding restricted stock units held by such RSU Holder immediately prior to the Effective Time or the number of Shares underlying the outstanding stock options held by such Option Holder immediately prior to the Effective Time, as applicable, and, in each case, as set forth in a schedule delivered by the Company to Parent Holdco (the “Equity Awards Schedule”).  The Rights Agent hereby acknowledges the restrictions on transfer contained in Section 2.2 and agrees not to register a transfer which does not comply with Section 2.2.

(c)Subject to the restrictions on transferability set forth in Section 2.2, every request made to transfer a CVR must be in writing and accompanied by a written instrument of transfer and other requested documentation in form reasonably satisfactory to the Rights Agent pursuant to its customary policies and guidelines, duly executed by the Holder thereof, the Holder’s attorney duly authorized in writing, the Holder’s personal representative or the Holder’s survivor, and setting forth in reasonable detail the circumstances relating to the transfer.  Upon receipt of such written notice, the Rights Agent shall, subject to its reasonable determination that the transfer instrument is in proper form and the transfer otherwise complies with the other terms and conditions of this Agreement (including the provisions of Section 2.2), register the transfer of the CVRs in the CVR Register.  Any transfer of CVRs will be without charge (other than the cost of any Tax) to the applicable Holder.  The Rights Agent shall have no duty or

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obligation to take any action under any section of this Agreement that requires the payment by a Holder of a CVR of applicable Taxes or charges unless and until the Rights Agent is satisfied that all such Taxes or charges have been paid.  All duly transferred CVRs registered in the CVR Register shall be the valid obligations of Parent Holdco and shall entitle the transferee to the same benefits and rights under this Agreement as those held immediately prior to the transfer by the transferor.  No transfer of a CVR shall be valid until registered in the CVR Register.

(d)A Holder may make a written request to the Rights Agent to change such Holder’s address of record in the CVR Register.  The written request must be duly executed by the Holder.  Upon receipt of such written notice, the Rights Agent shall, subject to its reasonable determination that the written notice is in proper form, promptly record the change of address in the CVR Register.

2.4Payment Procedures.

(a)If the Milestone occurs at any time prior to the expiration of the Milestone Period, then, on or prior to the Milestone Payment Date, Parent Holdco will deliver or cause to be delivered to the Rights Agent (i) a certificate (the “Milestone Achievement Certificate”) certifying the date of the satisfaction of the Milestone and that the Holders are entitled to receive the Milestone Payment and (ii) a wire transfer of immediately available funds to an account designated by the Rights Agent, in the aggregate amount equal to the number of CVRs (as reflected in the CVR Register) then outstanding multiplied by the amount of the Milestone Payment (the “Aggregate Milestone Payment”). After receipt of the wire transfer described in the foregoing sentence, the Rights Agent will promptly (and in any event, within five (5) Business Days) pay (x) by one lump sum wire payment to DTC for any Holder who is a former street name holder of Shares and (y) for all other Holders, by check mailed, first-class postage prepaid, to the address of each Holder set forth in the CVR Register or by other method of delivery as specified by the applicable Holder in writing to the Rights Agent (such amount in (x) and (y) together, an amount in cash equal to Aggregate Milestone Payment). The Rights Agent shall hold the Aggregate Milestone Payment in a non-interest bearing account until such payment is made in accordance with the foregoing sentence.  Notwithstanding the foregoing, in no event shall Parent Holdco be required to pay the Milestone Payment more than once and Parent Holdco shall not be required to pay the Milestone Payment if the Milestone occurs after the expiration of the Milestone Period.

(b)Parent Holdco or the Rights Agent shall be entitled to deduct or withhold from the Milestone Payment, if payable, such amounts as may be required to be deducted or withheld with respect to the Milestone Payment or CVR under the Code, and the rules and regulations thereunder, or any other applicable provision of state, local or foreign Law relating to Taxes, as may be reasonably determined by Parent Holdco or the Rights Agent.  Prior to making any such Tax withholdings or causing any such Tax withholdings to be made with respect to any Holder, the Rights Agent shall, to the extent practicable, provide notice to the Holder of such potential withholding and, if applicable,

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a reasonable opportunity for the Holder to provide any necessary Tax forms in order to reduce or eliminate such withholding amounts.  To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the person to whom such amounts would otherwise have been paid, and prior to the fifteenth (15th) day of February in the year following any payment of such Taxes by Parent Holdco or the Rights Agent, the Rights Agent shall deliver to the person to whom such amounts would otherwise have been paid the original Form 1099 or other reasonably acceptable evidence of such withholding.

(c)Any portion of any Milestone Payment that remains undistributed to the Holders six (6) months after the date of the Milestone Achievement Certificate shall be delivered by the Rights Agent to Parent Holdco, upon demand, and any Holder shall thereafter look only to Parent Holdco for payment of such Milestone Payment, without interest, but such Holder shall have no greater rights against Parent Holdco than those accorded to general unsecured creditors of Parent Holdco under applicable Law.

(d)Neither Parent Holdco nor the Rights Agent shall be liable to any person in respect of any Milestone Payment delivered to a public official in compliance with any applicable state, federal or other abandoned property, escheat or similar Law.  If, despite Parent Holdco’s and/or the Rights Agent’s reasonable best efforts to deliver a Milestone Payment to the applicable Holder, such Milestone Payment has not been paid prior to the date on which such Milestone Payment would otherwise escheat to or become the property of any Governmental Entity, any such Milestone Payment shall, to the extent permitted by applicable Law, immediately prior to such time become the property of Parent Holdco, free and clear of all claims or interest of any person previously entitled thereto.  In addition to and not in limitation of any other indemnity obligation herein, Parent Holdco agrees to indemnify and hold harmless the Rights Agent with respect to any liability, penalty, cost or expense the Rights Agent may incur or be subject to in connection with transferring such property to Parent Holdco.

(e)Except to the extent any portion of any Milestone Payment is required to be treated as imputed interest pursuant to applicable Law, the Parties agree to treat the CVRs and the Milestone Payment received with respect to the Shares pursuant to the Merger Agreement for all U.S. federal and applicable state and local income Tax purposes as additional consideration for the Shares and none of the Parties will take any position to the contrary on any U.S. federal and applicable state and local income Tax Return or for other U.S. federal and applicable state and local income Tax purposes except as required by applicable Law.

(f)The Parties agree, to the extent consistent with applicable law, to treat the payments from the CVRs received with respect to the Company RSUs and Company Options for all U.S. federal and applicable state and local income Tax purposes as compensation payments (and not to treat the CVR as a payment itself).

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2.5No Voting, Dividends or Interest; No Equity or Ownership Interest in Parent Holdco.

(a)The CVRs shall not have any voting or dividend rights, and interest shall not accrue on any amounts payable on the CVRs to any Holder.

The CVRs shall not represent any equity or ownership interest in Parent Holdco or in any constituent company to the Merger or any of their respective Affiliates.

2.6Enforcement of Rights of Holders  Any actions seeking the enforcement of the rights of Holders hereunder may be brought either by the Rights Agent or the Acting Holders.

ARTICLE III

The Rights Agent

3.1Certain Duties and Responsibilities.  The Rights Agent shall not have any liability for any actions taken, suffered or omitted to be taken in connection with this Agreement, except to the extent of its gross negligence, bad faith or willful or intentional misconduct.

3.2Certain Rights of the Rights Agent.  The Rights Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Rights Agent.  In addition:

(a)the Rights Agent may rely and shall be protected and held harmless by Parent Holdco in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper Party or Parties;

(b)whenever the Rights Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Rights Agent may rely upon an Officer’s Certificate, which certificate shall be full authorization and protection to the Rights Agent, and the Rights Agent shall, in the absence of bad faith on its part, incur no liability and be held harmless by Parent Holdco for or in respect of any action taken, suffered or omitted to be taken by it under the provisions of this Agreement in good faith reliance upon such certificate;

(c)the Rights Agent may engage and consult with counsel of its selection and the written advice of such counsel or any opinion of counsel shall be full and complete authorization and protection, and shall be held harmless by Parent Holdco in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

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(d)the permissive rights of the Rights Agent to do things enumerated in this Agreement shall not be construed as a duty;

(e)the Rights Agent shall not be required to give any note or surety in respect of the execution of such powers;

(f)the Rights Agent shall not be liable for or by reason of, and shall be held harmless by Parent Holdco with respect to any of the statements of fact or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by Parent Holdco only;

(g)the Rights Agent shall have no liability and shall be held harmless by Parent Holdco in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Rights Agent and the enforceability of this Agreement against the Rights Agent assuming the due execution and delivery hereof by Parent Holdco), nor shall it be responsible for any breach by Parent Holdco of any covenant or condition contained in this Agreement;

(h)Parent Holdco agrees to indemnify the Rights Agent for, and hold the Rights Agent harmless against, any loss, liability, claim, demand, suit or expense arising out of or in connection with the Rights Agent’s duties under this Agreement, including the reasonable and documented out-of-pocket costs and expenses of defending the Rights Agent against any claim, charge, demand, suit or loss incurred without negligence, bad faith or willful or intentional misconduct;

(i)the Rights Agent shall not be liable for consequential losses or damages under any provision of this Agreement or for any consequential damages arising out of any act or failure to act hereunder in the absence of gross negligence, bad faith or willful or intentional misconduct on its part;

(j)Parent Holdco agrees (i) to pay the fees and expenses of the Rights Agent in connection with this Agreement as agreed upon in writing by the Rights Agent and Parent Holdco on or prior to the date hereof, and (ii) to reimburse the Rights Agent for all Taxes other than withholding Taxes owed by Holders and governmental charges, reasonable out-of-pocket expenses and other charges of any kind and nature incurred by the Rights Agent in the execution of this Agreement (other than Taxes imposed on or measured by the Rights Agent’s net income and franchise or similar Taxes imposed on it (in lieu of net income Taxes)).  The Rights Agent shall also be entitled to reimbursement from Parent Holdco for all reasonable and documented out-of-pocket expenses paid or incurred by it in connection with the administration by the Rights Agent of its duties hereunder; and

(k)No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable

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grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.

3.3Resignation and Removal; Appointment of Successor.

(a)The Rights Agent may resign at any time by giving written notice thereof to Parent Holdco specifying a date when such resignation shall take effect, which notice shall be sent at least thirty (30) days prior to the date so specified, but in no event shall such resignation become effective until a successor Rights Agent has been appointed.  Parent Holdco has the right to remove the Rights Agent at any time by a Board Resolution specifying a date when such removal shall take effect, but no such removal shall become effective until a successor Rights Agent has been appointed.  Notice of such removal shall be given by Parent Holdco to the Rights Agent, which notice shall be sent at least thirty (30) days prior to the date so specified.

(b)If the Rights Agent provides notice of its intent to resign, is removed or becomes incapable of acting, Parent Holdco, by a Board Resolution, shall, as soon as is reasonably possible, appoint a qualified successor Rights Agent who shall be a stock transfer agent of national reputation or the corporate trust department of a commercial bank.  The successor Rights Agent so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 3.4, become the successor Rights Agent.

(c)Parent Holdco shall give notice of each resignation and each removal of a Rights Agent and each appointment of a successor Rights Agent by mailing written notice of such event by first-class mail to the Holders as their names and addresses appear in the CVR Register.  Each notice shall include the name and address of the successor Rights Agent.  If Parent Holdco fails to send such notice within ten (10) Business Days after acceptance of appointment by a successor Rights Agent, the successor Rights Agent shall cause the notice to be mailed at the expense of Parent Holdco.

(d)The Rights Agent will cooperate with Parent Holdco and any successor Rights Agent in connection with the transition of the duties and responsibilities of the Rights Agent to the successor Rights Agent, including transferring the CVR Register to the successor Rights Agent.

3.4Acceptance of Appointment by Successor.  Every successor Rights Agent appointed hereunder shall execute, acknowledge and deliver to Parent Holdco and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this Agreement, and thereupon such successor Rights Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Rights Agent.  On request of Parent Holdco or the successor Rights Agent, the retiring Rights Agent shall execute and deliver an instrument transferring to the successor Rights Agent all the rights, powers and trusts of the retiring Rights Agent.

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ARTICLE IV

Covenants

4.1List of Holders.  Parent Holdco shall furnish or cause to be furnished to the Rights Agent, promptly after the Effective Time and in no event later than ten (10) Business Days following the Effective Time, in such form as Parent Holdco receives from the Company’s transfer agent (or other agent performing similar services for the Company), the names and addresses of the Holders and, with respect to RSU Holders and Option Holders, in such form as set forth in the Equity Awards Schedule.

4.2Payment of Milestone Payment.  Parent Holdco will duly deposit or cause to be deposited with the Rights Agent, on or prior to the Milestone Payment Date, the Milestone Payment to be made to the Holders in accordance with the terms of this Agreement.  Such amounts shall be considered paid on the Milestone Payment Date if on such date the Rights Agent has received in accordance with this Agreement money sufficient to pay all such amounts then due.

4.3Assignment Transactions.

(a)Parent Holdco shall not, and shall cause its Affiliates, including the Surviving Corporation, not to, consummate any Assignment Transaction in which material commercialization rights to the Product in the U.S. or the obligations set forth in Section 4.4 of this Agreement are transferred other than to an Affiliate, unless (i) the acquiring Person (each such Person, an “Acquiror”) is either (x) one of the top thirty (30) pharmaceutical companies, as determined based on worldwide annual revenue, or (y) a pharmaceutical or biotechnology company with a regulatory and scientific infrastructure comparable to that used by Parent Holdco to pursue the Milestone for the Product at such time and (ii) Parent Holdco has delivered to the Rights Agent an Officer’s Certificate and Opinion of Counsel stating that such condition precedent has been complied with.  In the event of the consummation of an Assignment Transaction permitted by this Section 4.3(a) in which the Assignee assumes all of Parent Holdco’s obligations hereunder, Parent Holdco may elect to be released from any and all obligations hereunder only if the Acquiror in connection with such an Assignment Transaction expressly assumes, by an assumption agreement, executed and delivered to the Rights Agent, in form attached as Annex A, the due and punctual payment of any Aggregate Milestone Payment and the performance or observance of every covenant of this Agreement not yet performed or observed on the part of Parent Holdco to be performed or observed.

(b)Notwithstanding Section 4.3(a), Parent Holdco may, in its sole discretion and without the consent of any other party, consummate any Change in Control.

4.4Diligent Efforts.  During the Milestone Period, Parent Holdco (and its successors and assigns) shall, and shall cause its (and their) Subsidiaries to, use

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Diligent Efforts to achieve the Milestone prior to the end of the Milestone Period and as promptly as practicable following the Effective Time.

ARTICLE V

Amendments

5.1Amendments without Consent of Holders.

(a)Without the consent of any Holders or the Rights Agent, Parent Holdco, when authorized by a Board Resolution, at any time and from time to time, may enter into one or more amendments hereto, for any of the following purposes:

(i)to evidence the succession of another Person as a successor Rights Agent and the assumption by any such successor of the covenants and obligations of the Rights Agent herein;

(ii)to add to the covenants of Parent Holdco such further covenants, restrictions, conditions or provisions as Parent Holdco shall consider to be for the protection of the Holders, provided that, in each case, such provisions do not adversely affect the interests of the Holders;

(iii)to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Agreement, provided that, in each case, such provisions do not materially adversely affect the interests of the Holders;

(iv)as may be necessary or appropriate to ensure that the CVRs are not subject to registration under the Securities Act, the Exchange Act or any applicable state securities or “blue sky” laws, provided that, such amendments do not adversely affect the interests of the Holders;

(v)to reduce the number of CVRs, in the event any Holder agrees to renounce such Holder’s rights under this Agreement in accordance with Section 6.11;

(vi)subject to Section 4.3, to evidence the succession of another Person to Parent Holdco and the assumption by any such successor of the covenants of Parent Holdco contained herein;

(vii)to evidence the assignment of this Agreement by Parent Holdco as provided in Section 4.3; or

(viii)any other amendment to this Agreement that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Agreement of any such Holder.

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(b)Promptly after the execution by Parent Holdco and the Rights Agent of any amendment pursuant to the provisions of this Section 5.1, Parent Holdco shall mail (or cause the Rights Agent to mail) a notice thereof by first class mail to the Holders at their addresses as they appear on the CVR Register, setting forth such amendment.

5.2Amendments with Consent of Holders.

(a)Subject to Section 5.1 (which amendments pursuant to Section 5.1 may be made without the consent of the Holders or the Rights Agent), with the prior consent of Majority Holders, whether evidenced in writing or taken at a meeting of the Holders, Parent Holdco, when authorized by a Board Resolution, and the Rights Agent may enter into one or more amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement, even if such addition, elimination or change is materially adverse to the interest of the Holders.

(b)Promptly after the execution by Parent Holdco and the Rights Agent of any amendment pursuant to the provisions of this Section 5.2, Parent Holdco shall mail (or cause the Rights Agent to mail) a notice thereof by first class mail to the Holders at their addresses as they appear on the CVR Register, setting forth such amendment.

5.3Execution of Amendments.  In executing any amendment permitted by this Article V, the Rights Agent shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement.  The Rights Agent may, but is not obligated to, enter into any such amendment that affects the Rights Agent’s own rights, privileges, covenants or duties under this Agreement or otherwise.

5.4Effect of Amendments.  Upon the execution of any amendment under this Article V, this Agreement shall be modified in accordance therewith, such amendment shall form a part of this Agreement for all purposes and every Holder shall be bound thereby.

ARTICLE VI

Miscellaneous and General

6.1Termination.  This Agreement will be terminated and of no force or effect, the parties will have no liability hereunder (other than with respect to monies due and owing by Parent Holdco to the Rights Agent) and no payments will be required to be made, upon the earlier to occur of (a) the payment by the Rights Agent to each Holder of the Milestone Payment required to be paid under the terms of this Agreement in accordance with Section 2.4(a), and (b) the expiration of the Milestone Period.  For the avoidance of doubt, the termination of this Agreement will not affect or limit the right to receive the Milestone Payments under Section 2.4 to the extent earned prior to termination of this Agreement and the provisions applicable thereto will survive the expiration or termination of this Agreement.

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6.2Notices to the Rights Agent and Parent Holdco.  All notices, requests, instructions, demands, waivers and other communications or documents required or permitted to be given under this Agreement by either party to the other shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, by facsimile, electronic mail or overnight courier to such party, in the case of mail, facsimile or overnight courier, with a copy sent via electronic mail, at the following addresses:

If to Parent Holdco:

Shire plc

5 Riverwalk, Citywest Business Campus

Dublin

Ireland

Attention:  Michael Garry

Fax: +353 (0) 1 429 7701

With a copy to:

Shire

300 Shire Way

Lexington, MA 02421

Attention:  Bill Mordan, General Counsel

Fax:  (617) 613-4004

If to Rights Agent:

American Stock Transfer & Trust Company, LLC

6201 15th Avenue

Brooklyn, New York 11219

Attention:  Corporate Trust Department
Phone:  [·]
Fax:  [·]
Email:  [·]

With a copy to:

American Stock Transfer & Trust Company, LLC

6201 15th Avenue

Brooklyn, New York 11219
Attention:  Legal Department
Phone:  [·]
Fax:  [·]
Email:  [·]

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or to such other persons or addresses as may be designated in writing by the party to receive such notice as provided above.  All such notices, requests, instructions, demands, waivers and other communications or documents give as provided above shall be deemed given to the receiving party upon actual receipt, if delivered personally; three (3) Business Days after deposit in the mail, if sent by registered or certified mail; upon confirmation of successful transmission, if sent by facsimile or email (provided that if given by facsimile or email, such notice, request, instruction or other document shall be followed up within one (1) Business Day by dispatch pursuant to one of the other methods described herein); or on the next Business Day after deposit with an overnight courier, if sent by an overnight courier.

6.3Notice to Holders.  Where this Agreement provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the Holder’s address as it appears in the CVR Register, not later than the latest date, and not earlier than the earliest date, if any, prescribed for the giving of such notice.  In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.

6.4Counterparts.  This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of Parent Holdco and the Rights Agent on behalf of the Holders and delivered to each other, it being understood that Parent Holdco and the Rights Agent need not sign the same counterpart.

6.5Governing Law; Jurisdiction; WAIVER OF JURY TRIAL.

(a)THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED IN ACCORDANCE WITH, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER STATE OR WOULD DIRECT A MATTER TO ANOTHER JURISDICTION.  Each of the Parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive personal jurisdiction of the Court of Chancery of the State of Delaware, or, if (and only if) such court finds it lacks subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the matter that is the subject of the action or proceeding is vested exclusively in the federal courts of the United States of America, the federal court of the United States of America located in the County of New Castle, Delaware, and any appellate court from any thereof, solely in respect of the interpretation and enforcement of the provisions of (and any claim or cause of action arising under or relating to) this Agreement and of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby, and each of the

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Parties hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in the Court of Chancery of the State of Delaware, or, if (and only if) such court finds it lacks subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the matter that is the subject of the action or proceeding is vested exclusively in the federal courts of the United States of America, the federal court of the United States of America located in the County of New Castle, Delaware, as applicable, and any appellate court from any thereof, (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in the Court of Chancery of the State of Delaware, or, if (and only if) such court finds it lacks subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the matter that is the subject of the action or proceeding is vested exclusively in the federal courts of the United States of America, the federal court of the United States of America located in the County of New Castle, Delaware, as applicable, and any appellate court from any thereof, (iii) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the jurisdiction or laying of venue of any such action or proceeding in such courts and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in such courts.  Each of the Parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.  Each Party irrevocably consents to and grants any such court jurisdiction over the person of such parties and, to the extent permitted by Law, over the subject matter of such dispute and consents to service of process inside or outside the territorial jurisdiction of the courts referred to in this Section 6.5(a) in the manner provided for notices in Section 6.2.  Nothing in this Agreement will affect the right of any Party to serve process in any other manner permitted by Law.

(b)EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE MERGER AND OTHER TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES SUCH WAIVERS VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT

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BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.5(b).

6.6Other Remedies.  Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.

6.7Entire Agreement.  This Agreement and the documents and instruments and other agreements among the parties hereto as contemplated by or referred to herein, constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

6.8Third-Party Beneficiaries; Action by Acting Holders.  Parent Holdco and the Rights Agent hereby agree that the respective covenants and agreements set forth herein are intended to be for the benefit of, and shall be enforceable by, the Acting Holders, who are intended third-party beneficiaries hereof.  Parent Holdco and the Rights Agent further agree that this Agreement and their respective covenants and agreements set forth herein are solely for the benefit of Parent Holdco, the Rights Agent, the Holders and their permitted successors and assigns hereunder in accordance with and subject to the terms of this Agreement, and nothing in this Agreement, express or implied, will confer upon any Person other than Parent Holdco, the Rights Agent, the Holders and their permitted successors and assigns hereunder any benefit or any legal or equitable right, remedy or claim hereunder.  Except for the right of the Rights Agent set forth herein, the Acting Holders will have the sole right, on behalf of all Holders, by virtue of or under any provision of this Agreement, to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Agreement, and no individual Holder or other group of Holders will be entitled to exercise such rights. The parties hereto hereby agree that irreparable damage may occur in the event that any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached, and that money damages or other legal remedies may not be an adequate remedy for any such damages.  Accordingly, the parties hereto acknowledge and hereby agree that in the event of any breach or threatened breach by Parent Holdco or Assignee (as such term is defined below), on the one hand, or the Rights Agent or the Acting Holders, on the other hand, of any of their respective covenants or obligations set forth in this Agreement, Parent Holdco or Assignee, on the one hand, and the Rights Agent or the Acting Holders, on the other hand, shall be entitled to seek an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement, by the other(s) (as applicable), and to seek specific enforcement of the terms and provisions of this Agreement.

6.9Severability.  The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.  If any provision of this

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Agreement, or the application of such provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.

6.10Assignment.  This Agreement shall not be assignable provided, however, that (a) Parent Holdco may assign this agreement to a Person (each such Person, an “Assignee”) (i) which is a direct or indirect wholly-owned subsidiaries of Parent Holdco, provided that Parent Holdco remains jointly and severally liable, (ii) with the prior consent of the Acting Holders, whether evidenced in writing or taken at a meeting of the Holders, or (iii) in connection with a transaction involving an Assignment Transaction conducted in compliance with Section 4.3 and (b) the Rights Agent may assign this Agreement to a successor Rights Agent appointed in accordance with Section 3.3.

6.11Benefits of Agreement.  Notwithstanding anything to the contrary contained herein, any Holder may at any time agree to renounce, in whole or in part, whether or not for consideration, such Holder’s rights under this Agreement by written notice to the Rights Agent and Parent Holdco, which notice, if given, shall be irrevocable.  Parent Holdco may, in its sole discretion, at any time, offer consideration to Holders in exchange for their agreement to irrevocably renounce their rights hereunder.

6.12Legal Holidays.  In the event that any Milestone Payment Date shall not be a Business Day, then (notwithstanding any provision of this Agreement to the contrary) payment need not be made on such date, but may be made, without the accrual of any additional interest thereon on account of such Milestone Payment Date not being a Business Day, on the next succeeding Business Day with the same force and effect as if made on such Milestone Payment Date.

6.13Interpretation; Construction.

(a)The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.

(b)The parties have participated jointly in negotiating and drafting this Agreement.  In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly 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.

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.

SHIRE PLC
By:
	Name:
	Title:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
	Name:
	Title:

[Signature Page to Contingent Value Rights Agreement]

Annex A

Form of Assignment and Assumption Agreement

ASSIGNMENT AND ASSUMPTION AGREEMENT, made as of [ ] (this “Agreement”), between Shire plc, a company incorporated in Jersey(“Assignor”) and [•], a [ ] (“Assignee”).  Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings given to them in the CVR Agreement referred to below.

W I T N E S S E T H:

WHEREAS, Assignor and American Stock Transfer & Trust Company, LLC as rights agent (the “Rights Agent”) are parties to a Contingent Value Rights Agreement dated as of [•] (the “CVR Agreement”); and

WHEREAS, Assignor and Assignee desire to execute and deliver this Agreement evidencing the transfer to Assignee the due and punctual payment of any Aggregate Milestone Payment and the performance or observance of every covenant of the CVR Agreement not yet performed or observed on the part of Assignor to be performed and observed and the assumption thereof of Assignee;

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree as follows:

1.Assignment.  Effective as of [•] (the “Assignment Date”), Assignor hereby assigns to Assignee, and Assignee hereby accepts the assignment of, the due and punctual payment of any Aggregate Milestone Payment and the performance or observance of every covenant of the CVR Agreement not yet performed or observed on the part of Assignor to be performed and observed.

2.Assumption.  Effective as of the Assignment Date, Assignee hereby assumes the due and punctual payment of any Aggregate Milestone Payment and the performance or observance of every covenant of the CVR Agreement not yet performed or observed on the part of Assignor to be performed and observed.

3.Successors and Assigns.  This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto and their respective successors and assigns.

4.Governing Law.  This Agreement shall be governed by, construed and enforced in accordance with the laws of Delaware, without giving effect to the principles of conflicts of laws thereof.

5.Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.

[ASSIGNOR]
By:
	Name:
	Title:
[ASSIGNEE]
By:
	Name:
	Title:

EX-10.1

Exhibit 10.1

CONTINGENT VALUE RIGHTS AGREEMENT

By and between

SHIRE PLC

and

AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC

as Rights Agent

Dated as of [·], 2015

TABLE OF CONTENTS

		Page
Article I
Definitions
1.1	Definitions	2
1.2	Additional Definitions	4
1.3	Other Definitional Provisions	5
Article II
Contingent Value Rights
2.1	CVRs	5
2.2	Nontransferable	6
2.3	No Certificate; Registration; Registration of Transfer; Change of Address	6
2.4	Payment Procedures	7
2.5	No Voting, Dividends or Interest; No Equity or Ownership Interest in Parent Holdco	9
2.6	Enforcement of Rights of Holders	9
Article III
The Rights Agent
3.1	Certain Duties and Responsibilities	9
3.2	Certain Rights of the Rights Agent	9
3.3	Resignation and Removal; Appointment of Successor	11
3.4	Acceptance of Appointment by Successor	11
Article IV
Covenants
4.1	List of Holders	12
4.2	Payment of Milestone Payment	12
4.3	Assignment Transactions	12
4.4	Diligent Efforts	12

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Article V
Amendments
5.1	Amendments without Consent of Holders	13
5.2	Amendments with Consent of Holders	14
5.3	Execution of Amendments	14
5.4	Effect of Amendments	14
Article VI
Miscellaneous and General
6.1	Termination	14
6.2	Notices to the Rights Agent and Parent Holdco	15
6.3	Notice to Holders	16
6.4	Counterparts	16
6.5	Governing Law; Jurisdiction; WAIVER OF JURY TRIAL	16
6.6	Other Remedies	18
6.7	Entire Agreement	18
6.8	Third-Party Beneficiaries; Action by Acting Holders	18
6.9	Severability	18
6.10	Assignment	19
6.11	Benefits of Agreement	19
6.12	Legal Holidays	19
6.13	Interpretation; Construction	19

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CONTINGENT VALUE RIGHTS AGREEMENT

CONTINGENT VALUE RIGHTS AGREEMENT, dated as of [·], 2015 (this “Agreement”), by and between Shire plc, a company incorporated in Jersey (“Parent Holdco”), and American Stock Transfer & Trust Company, LLC, a New York limited liability trust company, as rights agent (the “Rights Agent”), in favor of each person who from time to time holds one or more contingent value rights (the “CVRs”) to receive cash payments in the amounts and subject to the terms and conditions set forth herein.

RECITALS

WHEREAS, this Agreement is entered into pursuant to the Agreement and Plan of Merger, dated November 2, 2015 (the “Merger Agreement”), by and among Dyax Corp., a Delaware corporation (the “Company”), Shire Pharmaceuticals International, a company incorporated in Ireland (“Parent”), Parquet Courts, Inc., a Delaware corporation wholly owned by Parent (“Merger Sub”), and Parent Holdco, pursuant to which Merger Sub will merge with and into the Company with the Company surviving (the “Merger”), on the terms and subject to the conditions set forth therein;

WHEREAS, pursuant to the Merger Agreement, Parent Holdco has agreed to provide to the holders of shares of common stock, par value $0.01 per share of the Company (the “Shares”), holders of restricted stock units denominated in Shares (“RSU Holders”) and holders of stock options to purchase Shares (“Option Holders”) the right to receive the Milestone Payment (as defined below) during the Milestone Period (as defined below); and

WHEREAS, pursuant to this Agreement, the potential amount payable per CVR is $4.00 in cash, without interest.

NOW, THEREFORE, in consideration of the foregoing and the consummation of the transactions referred to above, Parent Holdco and the Rights Agent agree, for the equal and proportionate benefit of all Holders (as hereinafter defined), as follows:

ARTICLE I

Definitions

1.1Definitions.  Capitalized terms used in this Agreement and not otherwise defined shall have the meanings assigned to them in the Merger Agreement.  For purposes of this Agreement, the following terms shall have the following meanings:

(a)“Acting Holders” means, at the time of determination, Holders of at least thirty-five percent (35%) of the outstanding CVRs as set forth in the CVR Register.

“Assignment Transaction” means any transaction (including a sale of assets, spin-off, split-off or licensing transaction), other than a Change in Control, pursuant to which rights in and to the Product are sold, licensed, assigned or transferred to or acquired by any Person other than by Parent Holdco or any of Parent Holdco’s Subsidiaries.  For purposes of clarification, an “Assignment Transaction” shall not apply to sales of the Product made by Parent Holdco or its Affiliates or ordinary course licensing arrangements between Parent Holdco and its Affiliates, on the one hand, and third party licensees, distributors and contract manufacturers on the other hand, entered into in the ordinary course of business for purposes of developing, manufacturing, distributing and selling the Product.

“Board of Directors” means the board of directors of Parent Holdco or any other body performing similar functions, or any duly authorized committee of that board.

“Board Resolution” means a copy of a resolution of the Board of Directors that has been certified in writing by the chairman of the Board of Directors, the chief executive officer, chief financial officer, executive vice president, company secretary or a deputy company secretary of Parent Holdco to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, which has been delivered to the Rights Agent.

“Business Day” means any day other than a Saturday or Sunday or a day on which commercial banks are authorized or required by Law or executive order to be closed in New York City.

“Change in Control” means (a) a merger or consolidation involving Parent Holdco in which Parent Holdco is not the surviving entity, (b) any transaction involving Parent Holdco in which Parent Holdco is the surviving entity but in which the stockholders of Parent Holdco immediately prior to such transaction own less than fifty percent (50%) of Parent Holdco’s voting power immediately after the transaction or (c) any other transaction pursuant to which rights in and to the Product are transferred to or acquired by any Person, by operation of law, other than by Parent Holdco or any of Parent Holdco’s Subsidiaries.

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“Diligent Efforts” means, with respect to the Product, using such efforts and resources normally used by Persons of comparable size within the pharmaceutical industry for the development and seeking of regulatory approval for a pharmaceutical product having similar market potential as the Product at a similar stage of its development or product life, taking into account all relevant factors, including issues of market exclusivity (including patent coverage, regulatory and other exclusivity), product profile, including efficacy, safety, tolerability, methods of administration and convenience, product labeling (including anticipated product labeling), other product candidates, the competitiveness of alternative products in the marketplace or under development (other than any such product owned or controlled by Parent Holdco or any Affiliate or that Parent Holdco or any Affiliate is discovering, researching, developing, manufacturing or commercializing along with one or more collaborators), the launch or sales of a generic or biosimilar product, the regulatory structure involved, the regulatory environment and the expected profitability of the applicable product (including development costs, pricing and reimbursement, cost of goods and all other costs associated with the applicable product), and relevant technical, commercial, financial, legal, scientific and medical factors. For the avoidance of doubt, Section 4.4 shall apply to Parent Holdco and its successors and assigns.

“Holder” means a Person in whose name a CVR is registered in the CVR Register at the applicable time.

“Majority Holders” means, at the time of determination, Holders of at least a majority of the outstanding CVRs.

“Milestone” will be deemed to occur upon Parent Holdco’s or its Affiliates’ (or their respective successors or assigns) receipt of approval by the FDA of a biologic license application which approval grants Parent Holdco or its Affiliates (or their respective successors or assigns) the right to market and sell the Product in the United States in accordance with applicable Law for the prevention of attacks of type 1 and type 2 hereditary angioedema in patients with type 1 or type 2 hereditary angioedema, as evidenced by the publication of such approval by the FDA; provided that such approval (a) does not require the inclusion of a “boxed warning” (as defined in 21 CFR §201.57(c)(1)) in the product labeling, (b) does not require the implementation of a risk evaluation and mitigation strategy with elements to assure safe use required by the FDA under the authority granted to it in 28 U.S.C. § 355-1 other than one whose elements are limited to the distribution of educational materials and (c) is not granted by the FDA under subpart E of the Federal Drug and Cosmetic Act (21 CFR § 601); provided, further, for the avoidance of doubt, such approval may contain (x) a voluntary commitment to conduct a post-approval study or clinical trial or (y) a post-approval study or clinical trial required pursuant to 21 USC §355(o).

“Milestone Payment” means $4.00 per CVR.

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“Milestone Payment Date” means the date that is selected by Parent Holdco not more than ten (10) Business Days following the date of the achievement of the Milestone.

“Milestone Period” means the period commencing as of the date of this Agreement and ending 11:59 p.m., Eastern time, on December 31, 2019.

“Officer’s Certificate” means a certificate signed by the chief executive officer, chief financial officer, an executive vice president, in each case of Parent Holdco, in his or her capacity as such an officer, and delivered to the Rights Agent or any other person authorized to act on behalf of Parent Holdco.

“Opinion of Counsel” means a written opinion of counsel, who may be counsel for Parent Holdco or its Subsidiaries.

“Party” shall mean the Rights Agent, Parent Holdco and/or the Holder(s), as applicable.

“Permitted Transfer” means a transfer of CVRs (a) upon death of a Holder by will or intestacy; (b)  by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the death of the trustee, (c) pursuant to a court order; (d) by operation of law (including by consolidation or merger) or without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; or (e) in the case of CVRs payable to a nominee, from a nominee to a beneficial owner (and, if applicable, through an intermediary) or from such nominee to another nominee for the same beneficial owner, in each case to the extent allowable by The Depository Trust Company.

“Product” means the compound known as DX-2930, having the heavy chain and light chain as set forth in Appendix A.

“Rights Agent” means the Rights Agent named in the first paragraph of this Agreement, until a successor Rights Agent becomes such pursuant to the applicable provisions of this Agreement, and thereafter “Rights Agent” shall mean such successor Rights Agent.

1.2Additional Definitions.  For purposes of this Agreement, each of the following terms shall have the meaning specified in the Section set forth opposite to such term:

Term	Section
Acquiror	4.3(a)(i)
Aggregate Milestone Payment	2.4(a)
Agreement	Preamble
Company	Recitals

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CVR	Preamble
CVR Register	2.3(b)
Equity Awards Schedule	2.3(b)
Merger	Recitals
Merger Agreement	Recitals
Merger Sub	Recitals
Milestone Achievement Certificate	2.4(a)
Option Holders	Recitals
Parent	Recitals
Parent Holdco	Preamble
RSU Holders	Recitals
Shares	Recitals

1.3Other Definitional Provisions.  Unless the context expressly otherwise requires:

(a)the words “hereof,” “hereto,” “herein,” and “hereunder,” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(b)the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

(c)the terms “Dollars” and “$” mean United States Dollars;

(d)references herein to a specific Article, Section, or Annex shall refer, respectively, to Articles and Sections of, and Annexes to, this Agreement;

(e)wherever the word “include,” “includes,” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;

(f)the term “or” will not be deemed to be exclusive;

(g)references herein to any gender include the other gender; and

(h)any Law defined or referred to herein will refer to such Law as amended and the rules and regulations promulgated thereunder.

ARTICLE II

Contingent Value Rights

2.1CVRs.  The CVRs represent the rights of Holders to receive contingent cash payments pursuant to this Agreement.  The initial Holders shall be the (i) holders of Shares other than Excluded Shares immediately prior to the Effective Time and (ii) holders of Company Options and Company RSUs immediately prior to the

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Effective Time whose Company Options and Company RSUs are converted into the right to receive the Per Share Merger Consideration pursuant to Article IV of the Merger Agreement.

2.2Nontransferable.  The CVRs may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part, other than through a Permitted Transfer.  Any attempted transfer, in whole or in part, that is not a Permitted Transfer, will be void ab initio and of no effect.

2.3No Certificate; Registration; Registration of Transfer; Change of Address.

(a)The CVRs shall not be evidenced by a certificate or other instrument.

(b)The Rights Agent shall keep a register (the “CVR Register”) for the purpose of registering CVRs and transfers of CVRs as herein provided.  The CVRs shall, in the case of the holders of Shares immediately prior to the Effective Time, other than the Excluded Shares, be registered in the names and addresses of the holder as set forth in the form Parent Holdco furnishes or causes to be furnished to the Rights Agent pursuant to Section 4.1, and in a denomination equal to the number of Shares converted into the right to receive the Per Share Merger Consideration.  The CVR Register will initially show one position for Cede & Co representing all Shares held by DTC on behalf of street holders held by such holders as of immediately prior to the Effective Time.  In the case of RSU Holders and Option Holders, the CVRs shall be registered in the names and addresses of such RSU Holder or Option Holder, as applicable, and in a denomination equal to the number of Shares subject to the outstanding restricted stock units held by such RSU Holder immediately prior to the Effective Time or the number of Shares underlying the outstanding stock options held by such Option Holder immediately prior to the Effective Time, as applicable, and, in each case, as set forth in a schedule delivered by the Company to Parent Holdco (the “Equity Awards Schedule”).  The Rights Agent hereby acknowledges the restrictions on transfer contained in Section 2.2 and agrees not to register a transfer which does not comply with Section 2.2.

(c)Subject to the restrictions on transferability set forth in Section 2.2, every request made to transfer a CVR must be in writing and accompanied by a written instrument of transfer and other requested documentation in form reasonably satisfactory to the Rights Agent pursuant to its customary policies and guidelines, duly executed by the Holder thereof, the Holder’s attorney duly authorized in writing, the Holder’s personal representative or the Holder’s survivor, and setting forth in reasonable detail the circumstances relating to the transfer.  Upon receipt of such written notice, the Rights Agent shall, subject to its reasonable determination that the transfer instrument is in proper form and the transfer otherwise complies with the other terms and conditions of this Agreement (including the provisions of Section 2.2), register the transfer of the CVRs in the CVR Register.  Any transfer of CVRs will be without charge (other than the cost of any Tax) to the applicable Holder.  The Rights Agent shall have no duty or

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obligation to take any action under any section of this Agreement that requires the payment by a Holder of a CVR of applicable Taxes or charges unless and until the Rights Agent is satisfied that all such Taxes or charges have been paid.  All duly transferred CVRs registered in the CVR Register shall be the valid obligations of Parent Holdco and shall entitle the transferee to the same benefits and rights under this Agreement as those held immediately prior to the transfer by the transferor.  No transfer of a CVR shall be valid until registered in the CVR Register.

(d)A Holder may make a written request to the Rights Agent to change such Holder’s address of record in the CVR Register.  The written request must be duly executed by the Holder.  Upon receipt of such written notice, the Rights Agent shall, subject to its reasonable determination that the written notice is in proper form, promptly record the change of address in the CVR Register.

2.4Payment Procedures.

(a)If the Milestone occurs at any time prior to the expiration of the Milestone Period, then, on or prior to the Milestone Payment Date, Parent Holdco will deliver or cause to be delivered to the Rights Agent (i) a certificate (the “Milestone Achievement Certificate”) certifying the date of the satisfaction of the Milestone and that the Holders are entitled to receive the Milestone Payment and (ii) a wire transfer of immediately available funds to an account designated by the Rights Agent, in the aggregate amount equal to the number of CVRs (as reflected in the CVR Register) then outstanding multiplied by the amount of the Milestone Payment (the “Aggregate Milestone Payment”). After receipt of the wire transfer described in the foregoing sentence, the Rights Agent will promptly (and in any event, within five (5) Business Days) pay (x) by one lump sum wire payment to DTC for any Holder who is a former street name holder of Shares and (y) for all other Holders, by check mailed, first-class postage prepaid, to the address of each Holder set forth in the CVR Register or by other method of delivery as specified by the applicable Holder in writing to the Rights Agent (such amount in (x) and (y) together, an amount in cash equal to Aggregate Milestone Payment). The Rights Agent shall hold the Aggregate Milestone Payment in a non-interest bearing account until such payment is made in accordance with the foregoing sentence.  Notwithstanding the foregoing, in no event shall Parent Holdco be required to pay the Milestone Payment more than once and Parent Holdco shall not be required to pay the Milestone Payment if the Milestone occurs after the expiration of the Milestone Period.

(b)Parent Holdco or the Rights Agent shall be entitled to deduct or withhold from the Milestone Payment, if payable, such amounts as may be required to be deducted or withheld with respect to the Milestone Payment or CVR under the Code, and the rules and regulations thereunder, or any other applicable provision of state, local or foreign Law relating to Taxes, as may be reasonably determined by Parent Holdco or the Rights Agent.  Prior to making any such Tax withholdings or causing any such Tax withholdings to be made with respect to any Holder, the Rights Agent shall, to the extent practicable, provide notice to the Holder of such potential withholding and, if applicable,

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a reasonable opportunity for the Holder to provide any necessary Tax forms in order to reduce or eliminate such withholding amounts.  To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the person to whom such amounts would otherwise have been paid, and prior to the fifteenth (15th) day of February in the year following any payment of such Taxes by Parent Holdco or the Rights Agent, the Rights Agent shall deliver to the person to whom such amounts would otherwise have been paid the original Form 1099 or other reasonably acceptable evidence of such withholding.

(c)Any portion of any Milestone Payment that remains undistributed to the Holders six (6) months after the date of the Milestone Achievement Certificate shall be delivered by the Rights Agent to Parent Holdco, upon demand, and any Holder shall thereafter look only to Parent Holdco for payment of such Milestone Payment, without interest, but such Holder shall have no greater rights against Parent Holdco than those accorded to general unsecured creditors of Parent Holdco under applicable Law.

(d)Neither Parent Holdco nor the Rights Agent shall be liable to any person in respect of any Milestone Payment delivered to a public official in compliance with any applicable state, federal or other abandoned property, escheat or similar Law.  If, despite Parent Holdco’s and/or the Rights Agent’s reasonable best efforts to deliver a Milestone Payment to the applicable Holder, such Milestone Payment has not been paid prior to the date on which such Milestone Payment would otherwise escheat to or become the property of any Governmental Entity, any such Milestone Payment shall, to the extent permitted by applicable Law, immediately prior to such time become the property of Parent Holdco, free and clear of all claims or interest of any person previously entitled thereto.  In addition to and not in limitation of any other indemnity obligation herein, Parent Holdco agrees to indemnify and hold harmless the Rights Agent with respect to any liability, penalty, cost or expense the Rights Agent may incur or be subject to in connection with transferring such property to Parent Holdco.

(e)Except to the extent any portion of any Milestone Payment is required to be treated as imputed interest pursuant to applicable Law, the Parties agree to treat the CVRs and the Milestone Payment received with respect to the Shares pursuant to the Merger Agreement for all U.S. federal and applicable state and local income Tax purposes as additional consideration for the Shares and none of the Parties will take any position to the contrary on any U.S. federal and applicable state and local income Tax Return or for other U.S. federal and applicable state and local income Tax purposes except as required by applicable Law.

(f)The Parties agree, to the extent consistent with applicable law, to treat the payments from the CVRs received with respect to the Company RSUs and Company Options for all U.S. federal and applicable state and local income Tax purposes as compensation payments (and not to treat the CVR as a payment itself).

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2.5No Voting, Dividends or Interest; No Equity or Ownership Interest in Parent Holdco.

(a)The CVRs shall not have any voting or dividend rights, and interest shall not accrue on any amounts payable on the CVRs to any Holder.

The CVRs shall not represent any equity or ownership interest in Parent Holdco or in any constituent company to the Merger or any of their respective Affiliates.

2.6Enforcement of Rights of Holders  Any actions seeking the enforcement of the rights of Holders hereunder may be brought either by the Rights Agent or the Acting Holders.

ARTICLE III

The Rights Agent

3.1Certain Duties and Responsibilities.  The Rights Agent shall not have any liability for any actions taken, suffered or omitted to be taken in connection with this Agreement, except to the extent of its gross negligence, bad faith or willful or intentional misconduct.

3.2Certain Rights of the Rights Agent.  The Rights Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Rights Agent.  In addition:

(a)the Rights Agent may rely and shall be protected and held harmless by Parent Holdco in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper Party or Parties;

(b)whenever the Rights Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Rights Agent may rely upon an Officer’s Certificate, which certificate shall be full authorization and protection to the Rights Agent, and the Rights Agent shall, in the absence of bad faith on its part, incur no liability and be held harmless by Parent Holdco for or in respect of any action taken, suffered or omitted to be taken by it under the provisions of this Agreement in good faith reliance upon such certificate;

(c)the Rights Agent may engage and consult with counsel of its selection and the written advice of such counsel or any opinion of counsel shall be full and complete authorization and protection, and shall be held harmless by Parent Holdco in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

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(d)the permissive rights of the Rights Agent to do things enumerated in this Agreement shall not be construed as a duty;

(e)the Rights Agent shall not be required to give any note or surety in respect of the execution of such powers;

(f)the Rights Agent shall not be liable for or by reason of, and shall be held harmless by Parent Holdco with respect to any of the statements of fact or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by Parent Holdco only;

(g)the Rights Agent shall have no liability and shall be held harmless by Parent Holdco in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Rights Agent and the enforceability of this Agreement against the Rights Agent assuming the due execution and delivery hereof by Parent Holdco), nor shall it be responsible for any breach by Parent Holdco of any covenant or condition contained in this Agreement;

(h)Parent Holdco agrees to indemnify the Rights Agent for, and hold the Rights Agent harmless against, any loss, liability, claim, demand, suit or expense arising out of or in connection with the Rights Agent’s duties under this Agreement, including the reasonable and documented out-of-pocket costs and expenses of defending the Rights Agent against any claim, charge, demand, suit or loss incurred without negligence, bad faith or willful or intentional misconduct;

(i)the Rights Agent shall not be liable for consequential losses or damages under any provision of this Agreement or for any consequential damages arising out of any act or failure to act hereunder in the absence of gross negligence, bad faith or willful or intentional misconduct on its part;

(j)Parent Holdco agrees (i) to pay the fees and expenses of the Rights Agent in connection with this Agreement as agreed upon in writing by the Rights Agent and Parent Holdco on or prior to the date hereof, and (ii) to reimburse the Rights Agent for all Taxes other than withholding Taxes owed by Holders and governmental charges, reasonable out-of-pocket expenses and other charges of any kind and nature incurred by the Rights Agent in the execution of this Agreement (other than Taxes imposed on or measured by the Rights Agent’s net income and franchise or similar Taxes imposed on it (in lieu of net income Taxes)).  The Rights Agent shall also be entitled to reimbursement from Parent Holdco for all reasonable and documented out-of-pocket expenses paid or incurred by it in connection with the administration by the Rights Agent of its duties hereunder; and

(k)No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable

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grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.

3.3Resignation and Removal; Appointment of Successor.

(a)The Rights Agent may resign at any time by giving written notice thereof to Parent Holdco specifying a date when such resignation shall take effect, which notice shall be sent at least thirty (30) days prior to the date so specified, but in no event shall such resignation become effective until a successor Rights Agent has been appointed.  Parent Holdco has the right to remove the Rights Agent at any time by a Board Resolution specifying a date when such removal shall take effect, but no such removal shall become effective until a successor Rights Agent has been appointed.  Notice of such removal shall be given by Parent Holdco to the Rights Agent, which notice shall be sent at least thirty (30) days prior to the date so specified.

(b)If the Rights Agent provides notice of its intent to resign, is removed or becomes incapable of acting, Parent Holdco, by a Board Resolution, shall, as soon as is reasonably possible, appoint a qualified successor Rights Agent who shall be a stock transfer agent of national reputation or the corporate trust department of a commercial bank.  The successor Rights Agent so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 3.4, become the successor Rights Agent.

(c)Parent Holdco shall give notice of each resignation and each removal of a Rights Agent and each appointment of a successor Rights Agent by mailing written notice of such event by first-class mail to the Holders as their names and addresses appear in the CVR Register.  Each notice shall include the name and address of the successor Rights Agent.  If Parent Holdco fails to send such notice within ten (10) Business Days after acceptance of appointment by a successor Rights Agent, the successor Rights Agent shall cause the notice to be mailed at the expense of Parent Holdco.

(d)The Rights Agent will cooperate with Parent Holdco and any successor Rights Agent in connection with the transition of the duties and responsibilities of the Rights Agent to the successor Rights Agent, including transferring the CVR Register to the successor Rights Agent.

3.4Acceptance of Appointment by Successor.  Every successor Rights Agent appointed hereunder shall execute, acknowledge and deliver to Parent Holdco and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this Agreement, and thereupon such successor Rights Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Rights Agent.  On request of Parent Holdco or the successor Rights Agent, the retiring Rights Agent shall execute and deliver an instrument transferring to the successor Rights Agent all the rights, powers and trusts of the retiring Rights Agent.

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ARTICLE IV

Covenants

4.1List of Holders.  Parent Holdco shall furnish or cause to be furnished to the Rights Agent, promptly after the Effective Time and in no event later than ten (10) Business Days following the Effective Time, in such form as Parent Holdco receives from the Company’s transfer agent (or other agent performing similar services for the Company), the names and addresses of the Holders and, with respect to RSU Holders and Option Holders, in such form as set forth in the Equity Awards Schedule.

4.2Payment of Milestone Payment.  Parent Holdco will duly deposit or cause to be deposited with the Rights Agent, on or prior to the Milestone Payment Date, the Milestone Payment to be made to the Holders in accordance with the terms of this Agreement.  Such amounts shall be considered paid on the Milestone Payment Date if on such date the Rights Agent has received in accordance with this Agreement money sufficient to pay all such amounts then due.

4.3Assignment Transactions.

(a)Parent Holdco shall not, and shall cause its Affiliates, including the Surviving Corporation, not to, consummate any Assignment Transaction in which material commercialization rights to the Product in the U.S. or the obligations set forth in Section 4.4 of this Agreement are transferred other than to an Affiliate, unless (i) the acquiring Person (each such Person, an “Acquiror”) is either (x) one of the top thirty (30) pharmaceutical companies, as determined based on worldwide annual revenue, or (y) a pharmaceutical or biotechnology company with a regulatory and scientific infrastructure comparable to that used by Parent Holdco to pursue the Milestone for the Product at such time and (ii) Parent Holdco has delivered to the Rights Agent an Officer’s Certificate and Opinion of Counsel stating that such condition precedent has been complied with.  In the event of the consummation of an Assignment Transaction permitted by this Section 4.3(a) in which the Assignee assumes all of Parent Holdco’s obligations hereunder, Parent Holdco may elect to be released from any and all obligations hereunder only if the Acquiror in connection with such an Assignment Transaction expressly assumes, by an assumption agreement, executed and delivered to the Rights Agent, in form attached as Annex A, the due and punctual payment of any Aggregate Milestone Payment and the performance or observance of every covenant of this Agreement not yet performed or observed on the part of Parent Holdco to be performed or observed.

(b)Notwithstanding Section 4.3(a), Parent Holdco may, in its sole discretion and without the consent of any other party, consummate any Change in Control.

4.4Diligent Efforts.  During the Milestone Period, Parent Holdco (and its successors and assigns) shall, and shall cause its (and their) Subsidiaries to, use

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Diligent Efforts to achieve the Milestone prior to the end of the Milestone Period and as promptly as practicable following the Effective Time.

ARTICLE V

Amendments

5.1Amendments without Consent of Holders.

(a)Without the consent of any Holders or the Rights Agent, Parent Holdco, when authorized by a Board Resolution, at any time and from time to time, may enter into one or more amendments hereto, for any of the following purposes:

(i)to evidence the succession of another Person as a successor Rights Agent and the assumption by any such successor of the covenants and obligations of the Rights Agent herein;

(ii)to add to the covenants of Parent Holdco such further covenants, restrictions, conditions or provisions as Parent Holdco shall consider to be for the protection of the Holders, provided that, in each case, such provisions do not adversely affect the interests of the Holders;

(iii)to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Agreement, provided that, in each case, such provisions do not materially adversely affect the interests of the Holders;

(iv)as may be necessary or appropriate to ensure that the CVRs are not subject to registration under the Securities Act, the Exchange Act or any applicable state securities or “blue sky” laws, provided that, such amendments do not adversely affect the interests of the Holders;

(v)to reduce the number of CVRs, in the event any Holder agrees to renounce such Holder’s rights under this Agreement in accordance with Section 6.11;

(vi)subject to Section 4.3, to evidence the succession of another Person to Parent Holdco and the assumption by any such successor of the covenants of Parent Holdco contained herein;

(vii)to evidence the assignment of this Agreement by Parent Holdco as provided in Section 4.3; or

(viii)any other amendment to this Agreement that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Agreement of any such Holder.

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(b)Promptly after the execution by Parent Holdco and the Rights Agent of any amendment pursuant to the provisions of this Section 5.1, Parent Holdco shall mail (or cause the Rights Agent to mail) a notice thereof by first class mail to the Holders at their addresses as they appear on the CVR Register, setting forth such amendment.

5.2Amendments with Consent of Holders.

(a)Subject to Section 5.1 (which amendments pursuant to Section 5.1 may be made without the consent of the Holders or the Rights Agent), with the prior consent of Majority Holders, whether evidenced in writing or taken at a meeting of the Holders, Parent Holdco, when authorized by a Board Resolution, and the Rights Agent may enter into one or more amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement, even if such addition, elimination or change is materially adverse to the interest of the Holders.

(b)Promptly after the execution by Parent Holdco and the Rights Agent of any amendment pursuant to the provisions of this Section 5.2, Parent Holdco shall mail (or cause the Rights Agent to mail) a notice thereof by first class mail to the Holders at their addresses as they appear on the CVR Register, setting forth such amendment.

5.3Execution of Amendments.  In executing any amendment permitted by this Article V, the Rights Agent shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement.  The Rights Agent may, but is not obligated to, enter into any such amendment that affects the Rights Agent’s own rights, privileges, covenants or duties under this Agreement or otherwise.

5.4Effect of Amendments.  Upon the execution of any amendment under this Article V, this Agreement shall be modified in accordance therewith, such amendment shall form a part of this Agreement for all purposes and every Holder shall be bound thereby.

ARTICLE VI

Miscellaneous and General

6.1Termination.  This Agreement will be terminated and of no force or effect, the parties will have no liability hereunder (other than with respect to monies due and owing by Parent Holdco to the Rights Agent) and no payments will be required to be made, upon the earlier to occur of (a) the payment by the Rights Agent to each Holder of the Milestone Payment required to be paid under the terms of this Agreement in accordance with Section 2.4(a), and (b) the expiration of the Milestone Period.  For the avoidance of doubt, the termination of this Agreement will not affect or limit the right to receive the Milestone Payments under Section 2.4 to the extent earned prior to termination of this Agreement and the provisions applicable thereto will survive the expiration or termination of this Agreement.

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6.2Notices to the Rights Agent and Parent Holdco.  All notices, requests, instructions, demands, waivers and other communications or documents required or permitted to be given under this Agreement by either party to the other shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, by facsimile, electronic mail or overnight courier to such party, in the case of mail, facsimile or overnight courier, with a copy sent via electronic mail, at the following addresses:

If to Parent Holdco:

Shire plc

5 Riverwalk, Citywest Business Campus

Dublin

Ireland

Attention:  Michael Garry

Fax: +353 (0) 1 429 7701

With a copy to:

Shire

300 Shire Way

Lexington, MA 02421

Attention:  Bill Mordan, General Counsel

Fax:  (617) 613-4004

If to Rights Agent:

American Stock Transfer & Trust Company, LLC

6201 15th Avenue

Brooklyn, New York 11219

Attention:  Corporate Trust Department
Phone:  [·]
Fax:  [·]
Email:  [·]

With a copy to:

American Stock Transfer & Trust Company, LLC

6201 15th Avenue

Brooklyn, New York 11219
Attention:  Legal Department
Phone:  [·]
Fax:  [·]
Email:  [·]

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or to such other persons or addresses as may be designated in writing by the party to receive such notice as provided above.  All such notices, requests, instructions, demands, waivers and other communications or documents give as provided above shall be deemed given to the receiving party upon actual receipt, if delivered personally; three (3) Business Days after deposit in the mail, if sent by registered or certified mail; upon confirmation of successful transmission, if sent by facsimile or email (provided that if given by facsimile or email, such notice, request, instruction or other document shall be followed up within one (1) Business Day by dispatch pursuant to one of the other methods described herein); or on the next Business Day after deposit with an overnight courier, if sent by an overnight courier.

6.3Notice to Holders.  Where this Agreement provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the Holder’s address as it appears in the CVR Register, not later than the latest date, and not earlier than the earliest date, if any, prescribed for the giving of such notice.  In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.

6.4Counterparts.  This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of Parent Holdco and the Rights Agent on behalf of the Holders and delivered to each other, it being understood that Parent Holdco and the Rights Agent need not sign the same counterpart.

6.5Governing Law; Jurisdiction; WAIVER OF JURY TRIAL.

(a)THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED IN ACCORDANCE WITH, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER STATE OR WOULD DIRECT A MATTER TO ANOTHER JURISDICTION.  Each of the Parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive personal jurisdiction of the Court of Chancery of the State of Delaware, or, if (and only if) such court finds it lacks subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the matter that is the subject of the action or proceeding is vested exclusively in the federal courts of the United States of America, the federal court of the United States of America located in the County of New Castle, Delaware, and any appellate court from any thereof, solely in respect of the interpretation and enforcement of the provisions of (and any claim or cause of action arising under or relating to) this Agreement and of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby, and each of the

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Parties hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in the Court of Chancery of the State of Delaware, or, if (and only if) such court finds it lacks subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the matter that is the subject of the action or proceeding is vested exclusively in the federal courts of the United States of America, the federal court of the United States of America located in the County of New Castle, Delaware, as applicable, and any appellate court from any thereof, (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in the Court of Chancery of the State of Delaware, or, if (and only if) such court finds it lacks subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the matter that is the subject of the action or proceeding is vested exclusively in the federal courts of the United States of America, the federal court of the United States of America located in the County of New Castle, Delaware, as applicable, and any appellate court from any thereof, (iii) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the jurisdiction or laying of venue of any such action or proceeding in such courts and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in such courts.  Each of the Parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.  Each Party irrevocably consents to and grants any such court jurisdiction over the person of such parties and, to the extent permitted by Law, over the subject matter of such dispute and consents to service of process inside or outside the territorial jurisdiction of the courts referred to in this Section 6.5(a) in the manner provided for notices in Section 6.2.  Nothing in this Agreement will affect the right of any Party to serve process in any other manner permitted by Law.

(b)EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE MERGER AND OTHER TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES SUCH WAIVERS VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT

17

BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.5(b).

6.6Other Remedies.  Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.

6.7Entire Agreement.  This Agreement and the documents and instruments and other agreements among the parties hereto as contemplated by or referred to herein, constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

6.8Third-Party Beneficiaries; Action by Acting Holders.  Parent Holdco and the Rights Agent hereby agree that the respective covenants and agreements set forth herein are intended to be for the benefit of, and shall be enforceable by, the Acting Holders, who are intended third-party beneficiaries hereof.  Parent Holdco and the Rights Agent further agree that this Agreement and their respective covenants and agreements set forth herein are solely for the benefit of Parent Holdco, the Rights Agent, the Holders and their permitted successors and assigns hereunder in accordance with and subject to the terms of this Agreement, and nothing in this Agreement, express or implied, will confer upon any Person other than Parent Holdco, the Rights Agent, the Holders and their permitted successors and assigns hereunder any benefit or any legal or equitable right, remedy or claim hereunder.  Except for the right of the Rights Agent set forth herein, the Acting Holders will have the sole right, on behalf of all Holders, by virtue of or under any provision of this Agreement, to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Agreement, and no individual Holder or other group of Holders will be entitled to exercise such rights. The parties hereto hereby agree that irreparable damage may occur in the event that any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached, and that money damages or other legal remedies may not be an adequate remedy for any such damages.  Accordingly, the parties hereto acknowledge and hereby agree that in the event of any breach or threatened breach by Parent Holdco or Assignee (as such term is defined below), on the one hand, or the Rights Agent or the Acting Holders, on the other hand, of any of their respective covenants or obligations set forth in this Agreement, Parent Holdco or Assignee, on the one hand, and the Rights Agent or the Acting Holders, on the other hand, shall be entitled to seek an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement, by the other(s) (as applicable), and to seek specific enforcement of the terms and provisions of this Agreement.

6.9Severability.  The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.  If any provision of this

18

Agreement, or the application of such provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application of such provision, in any other jurisdiction.

6.10Assignment.  This Agreement shall not be assignable provided, however, that (a) Parent Holdco may assign this agreement to a Person (each such Person, an “Assignee”) (i) which is a direct or indirect wholly-owned subsidiaries of Parent Holdco, provided that Parent Holdco remains jointly and severally liable, (ii) with the prior consent of the Acting Holders, whether evidenced in writing or taken at a meeting of the Holders, or (iii) in connection with a transaction involving an Assignment Transaction conducted in compliance with Section 4.3 and (b) the Rights Agent may assign this Agreement to a successor Rights Agent appointed in accordance with Section 3.3.

6.11Benefits of Agreement.  Notwithstanding anything to the contrary contained herein, any Holder may at any time agree to renounce, in whole or in part, whether or not for consideration, such Holder’s rights under this Agreement by written notice to the Rights Agent and Parent Holdco, which notice, if given, shall be irrevocable.  Parent Holdco may, in its sole discretion, at any time, offer consideration to Holders in exchange for their agreement to irrevocably renounce their rights hereunder.

6.12Legal Holidays.  In the event that any Milestone Payment Date shall not be a Business Day, then (notwithstanding any provision of this Agreement to the contrary) payment need not be made on such date, but may be made, without the accrual of any additional interest thereon on account of such Milestone Payment Date not being a Business Day, on the next succeeding Business Day with the same force and effect as if made on such Milestone Payment Date.

6.13Interpretation; Construction.

(a)The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.

(b)The parties have participated jointly in negotiating and drafting this Agreement.  In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly 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.

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.

SHIRE PLC
By:
	Name:
	Title:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
	Name:
	Title:

[Signature Page to Contingent Value Rights Agreement]

Annex A

Form of Assignment and Assumption Agreement

ASSIGNMENT AND ASSUMPTION AGREEMENT, made as of [ ] (this “Agreement”), between Shire plc, a company incorporated in Jersey(“Assignor”) and [•], a [ ] (“Assignee”).  Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meanings given to them in the CVR Agreement referred to below.

W I T N E S S E T H:

WHEREAS, Assignor and American Stock Transfer & Trust Company, LLC as rights agent (the “Rights Agent”) are parties to a Contingent Value Rights Agreement dated as of [•] (the “CVR Agreement”); and

WHEREAS, Assignor and Assignee desire to execute and deliver this Agreement evidencing the transfer to Assignee the due and punctual payment of any Aggregate Milestone Payment and the performance or observance of every covenant of the CVR Agreement not yet performed or observed on the part of Assignor to be performed and observed and the assumption thereof of Assignee;

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree as follows:

1.Assignment.  Effective as of [•] (the “Assignment Date”), Assignor hereby assigns to Assignee, and Assignee hereby accepts the assignment of, the due and punctual payment of any Aggregate Milestone Payment and the performance or observance of every covenant of the CVR Agreement not yet performed or observed on the part of Assignor to be performed and observed.

2.Assumption.  Effective as of the Assignment Date, Assignee hereby assumes the due and punctual payment of any Aggregate Milestone Payment and the performance or observance of every covenant of the CVR Agreement not yet performed or observed on the part of Assignor to be performed and observed.

3.Successors and Assigns.  This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto and their respective successors and assigns.

4.Governing Law.  This Agreement shall be governed by, construed and enforced in accordance with the laws of Delaware, without giving effect to the principles of conflicts of laws thereof.

5.Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.

[ASSIGNOR]
By:
	Name:
	Title:
[ASSIGNEE]
By:
	Name:
	Title:

EX-10.2

Exhibit 10.2

SHIRE PLC

as the Company

MORGAN STANLEY BANK INTERNATIONAL LIMITED

and

DEUTSCHE BANK AG, LONDON BRANCH

as mandated lead arrangers and bookrunners

with

DEUTSCHE BANK AG, LONDON BRANCH

as Agent

US$ 5,600,000,000

TERM FACILITIES AGREEMENT

DATED        NOVEMBER 2015

Slaughter and May
One Bunhill Row
London EC1Y 8YY

(AZN/DHC)
532026286

CONTENTS

Clause		Page
1.	Definitions and interpretation	1
2.	The Facilities	24
3.	Purpose	26
4.	Conditions of Utilisation	26
5.	Utilisation	28
6.	Repayment	30
7.	Illegality, voluntary prepayment and cancellation	32
8.	Mandatory prepayment	33
9.	Restrictions	36
10.	Extension Option	37
11.	Interest	39
12.	Interest Periods	40
13.	Changes to the calculation of interest	41
14.	Fees	43
15.	Tax gross-up and indemnities	46
16.	Increased Costs	60
17.	Other indemnities	62
18.	Mitigation by the Lenders	64
19.	Costs and expenses	65
20.	Guarantee and indemnity	67

21.	Representations	72
22.	Information undertakings	76
23.	Financial covenants	80
24.	General undertakings	86
86
25.	Sanctions	93
26.	Events of Default	94
27.	Changes to the Lenders	99
28.	Changes to the Obligors	105
29.	Role of the Agent, the Arrangers and the Reference Banks	108
30.	Conduct of Business by the Finance Parties	118
31.	Sharing among the Finance Parties	119
32.	Payment mechanics	121
33.	Set-off	124
34.	Notices	124
35.	Calculations and certificates	128
36.	Partial invalidity	128
37.	Remedies and waivers	128
38.	Amendments and waivers	129
39.	Confidential Information	134
40.	Confidentiality of Funding Rates and Reference Bank Quotations	138
41.	Counterparts	140
42.	Governing law	141

43. Enforcement 141

THIS AGREEMENT is dated     November 2015 and made between:

(1)           SHIRE PLC, a registered public company incorporated in Jersey under the Companies (Jersey) Law 1991 with registered number 99854 (the “Company”, the “Original Borrower” and the “Original Guarantor”);

(2)           MORGAN STANLEY BANK INTERNATIONAL LIMITED and DEUTSCHE BANK AG, LONDON BRANCH as mandated lead arrangers and bookrunners (the “Original Arrangers”);

(3)           THE FINANCIAL INSTITUTIONS listed in Part I of Schedule 1 (The Original Lenders) as Facility A lenders (the “Original Facility A Lenders”);

(4)           THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Lenders) as Facility B lenders (the “Original Facility B Lenders”);

(5)           THE FINANCIAL INSTITUTIONS listed in Part III of Schedule 1 (The Original Lenders) as Facility C lenders (the “Original Facility C Lenders” and together with the Original Facility A Lenders and the Original Facility B Lenders, the “Original Lenders”); and

(6)           DEUTSCHE BANK AG, LONDON BRANCH as facility agent of the other Finance Parties (in this capacity, the “Agent”).

IT IS AGREED as follows:

SECTION 1
INTERPRETATION

1.            DEFINITIONS AND INTERPRETATION

1.1          Definitions

In this Agreement:

“Acceptable Bank” means a bank or financial institution which has a rating for its long term unsecured and non-credit enhanced debt obligations of A or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or A2 or higher by Moody’s Investors Service Limited or a comparable rating from an internationally recognised credit rating agency.

“Accession Letter” means a document substantially in the form set out in Schedule 6 (Form of Accession Letter).

“Acquisition” means a Merger, with all of the issued and outstanding Target Shares cancelled in the Merger, in each case, on the terms and subject to the conditions set forth in the Acquisition Agreement.

“Acquisition Agreement” means the agreement and plan of merger, dated on or around the date of this Agreement, among the Company, the Merger Subsidiary and the

Target, together with such amendments, waivers or supplements made from time to time in accordance with the terms of this Agreement.

“Acquisition Costs” means:

(a)           any refinancing, repayment, conversion or redemption of any indebtedness of the Target or its Subsidiaries or any amount required to finance the Target and its Subsidiaries;

(b)           all fees, claims (including settlements thereof), costs, expenses or stamp, registration, transfer or other Taxes incurred by (or required to be paid by) any member of the Group in connection with the Acquisition or the Facilities or any refinancing, repayment, redemption or financing referred to in paragraph (a); and

(c)           any integration or reorganisation costs resulting from the Acquisition or any amounts payable to third parties in connection with, or as a result of, the Acquisition.

“Acquisition CP Satisfaction” means all conditions to the Merger under the Acquisition Agreement have been satisfied (or waived in accordance with Clause 24.10 (Conduct of the Acquisition)).

“Acquisition Documents” means:

(a)           the Acquisition Agreement; and

(b)           the Certificate of Merger,

in each case together with such amendments, waivers or supplements made from time to time in accordance with the terms of this Agreement.

“Additional Borrower” means each company which becomes an Additional Borrower in accordance with Clause 28 (Changes to the Obligors).

“Additional Guarantor” means each company which becomes an Additional Guarantor in accordance with Clause 28 (Changes to the Obligors).

“Additional Obligor” means an Additional Borrower or an Additional Guarantor.

“Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company, provided that, in relation to The Royal Bank of Scotland plc (to the extent that it is or becomes a Finance Party), the term “Affiliate” shall include The Royal Bank of Scotland N.V. and each of its Affiliates, but shall not include (i) the UK government or any member or instrumentality thereof, including Her Majesty’s Treasury and UK Financial Investments Limited (or any directors, officers, employees or entities thereof) or (ii) any persons or entities controlled by or under common control with the UK government or any member or instrumentality thereof (including HM Treasury and UK Financial Investments Limited)

2

and which are not part of The Royal Bank of Scotland Group plc and its subsidiaries or subsidiary undertakings.

“Arranger” means the Original Arrangers and any bank or financial institution that accedes to this Agreement as an arranger pursuant to Syndication.

“Assignment Agreement” means an agreement substantially in the form set out in Schedule 4 (Form of Assignment Agreement).

“Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

“Availability Period” means:

(a)           with respect to Facility A, the period from and including the date of this Agreement to and including the date falling one week prior to the Original Facility A Maturity Date, provided that if an Extension Notice has been delivered in accordance with Clause 10 (Extension option) the Availability Period in respect of any and all proposed Extended Facility A Commitments shall be the period from and including the date of this Agreement to and including the date falling 15 Months after the date of this Agreement; and

(b)           with respect to Facility B and Facility C, the period from and including the date of this Agreement to and including the date falling 15 Months after the date of this Agreement.

“Available Commitment” means:

(a)           in relation to Facility A, a Facility A Lender’s Facility A Commitment;

(b)           in relation to Facility B, a Facility B Lender’s Facility B Commitment; or

(c)           in relation to Facility C, a Facility C Lender’s Facility C Commitment,

minus:

(i)            the amount of its participation in any outstanding Loans under that Facility; and

(ii)           in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date.

“Available Facility” means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.

“Borrower” means the Original Borrower or an Additional Borrower, unless it has ceased to be a Borrower in accordance with Clause 28 (Changes to the Obligors).

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“Break Costs” means the amount (if any) by which:

(a)           the interest excluding the Margin which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

(b)           the amount which that Lender would be able to obtain by placing an amount equal to the total sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London and New York City.

“Capital Markets Proceeds” means the cash proceeds received by any member of the Group from any public or private issue, sale or offering of any debt securities (including, without limitation, any bond or note issuance or private placement or instruments that are convertible into equity or any hybrid instrument but excluding any debt securities that are mandatorily convertible into equity) in the national or international debt capital markets (“Capital Markets Issue”) by any member of the Group but excluding:

(a)           any commercial paper issued by any member of the Group; and

(b)           any Capital Markets Issue to the extent the proceeds or the net cash proceeds of such Capital Markets Issue are used or are proposed to be used within 6 Months of the date of receipt by a member of the Group to fund the acquisition by any member of the Group of any company, shares, undertaking or business (and related costs, liabilities and expenses, including any share buy-back or similar return of value implemented or proposed to be implemented in connection with any such acquisition), other than any acquisition of the Target, and any refinancing or replacement thereof for the same or a lesser amount,

but, in each case, after deducting any reasonable fees, costs, expenses and Taxes which are incurred by members of the Group with respect to that Capital Markets Issue to persons who are not members of the Group.

“Certificate of Merger” means the certificate of merger specifying the effective time of the Merger filed with the Secretary of State of the State of Delaware in such form as required by, and executed in accordance with, the relevant provisions of Section 251 of the General Corporation Law of the State of Delaware.

“Code” means the US Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder as in effect at such date.

“Commitment” means a Facility A Commitment, a Facility B Commitment or a Facility C Commitment.

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“Compliance Certificate” means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate).

“Confidential Information” means all information relating to the Parent Company, any member of the Group, the Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

(a)           any member of the Group or any of its advisers; or

(b)           another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

(i)            information that:

(A)          is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 39 (Confidential Information); or

(B)          is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

(C)          is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

(ii)           any Funding Rate or Reference Bank Quotation.

“Confidentiality Undertaking” means a confidentiality undertaking substantially in the form as set out in Schedule 12 (Form of Confidentiality Undertaking) or in any other form agreed between the Parent Company and the Agent.

“Controlled Group” means any trade or business, whether or not incorporated, which is under common control with an Obligor within the meaning of Section 4001 of ERISA or is part of a group that includes an Obligor and that is treated as a single employer under Section 414 of the Code.  When any provision of this Agreement relates to a past event, the term “member of the Controlled Group” includes any person that was a member of the Controlled Group at the time of that past event.

“CTA” means the Corporation Tax Act 2009.

5

“Default” means an Event of Default or any event or circumstance specified in Clause 26 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing with an event or circumstance specified in Clause 26 (Events of Default)) be an Event of Default.

“Defaulting Lender” means any Lender:

(a)           which has failed to make its participation in a Loan available or has notified the Agent or any Obligor or has indicated publicly that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders’ participation);

(b)           which has otherwise rescinded or repudiated a Finance Document; or

(c)           with respect to which an Insolvency Event has occurred and is continuing,

unless, in the case of paragraph (a) above:

(i)            its failure to pay is caused by:

(A)          administrative or technical error; or

(B)          a Disruption Event; and

payment is made within three Business Days of its due date;

(ii)           the Lender is disputing in good faith whether it is contractually obliged to make the payment in question; or

(iii)          the circumstances contemplated by Clause 7.1 (Illegality) apply in respect of that Lender and the Lender has given notice thereof to the Agent in accordance with such Clause.

“Disruption Event” means either or both of:

(a)           a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

(b)           the occurrence of any other event which results in a disruption (including without limitation, disruption of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

(i)            from performing its payment obligations under the Finance Documents; or

6

(ii)         from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

“Employee Plan” means, at any time, an “employee pension benefit plan” as defined in Section 3(2) of ERISA subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA (other than a Multiemployer Plan), maintained or contributed to (or to which there is or was an obligation to contribute) by any Obligor or ERISA Affiliate.

“ERISA” means the US Employee Retirement Income Security Act of 1974 (or any successor legislation thereto) and the regulations promulgated and rulings issued thereunder.

“ERISA Affiliate” means each person (as defined in Section 3(9) of ERISA) that is a member of a Controlled Group of any Obligor.

“Event of Default” means any event or circumstance specified as such in Clause 26 (Events of Default).

“Exchange Act” means the Securities Exchange Act of 1934 of the United States, as amended from time to time, and any successor statute.

“Existing Facilities Agreements” means:

(a)          the US$ 850,000,000 term facilities agreement dated 11 January 2015 made between, among others, the Company and Citibank International Limited as agent; and

(b)          the US$ 2,100,000,000 facilities agreement dated 12 December 2014 made between, among others, the Company and Barclays Bank PLC as facility agent.

“Existing Financial Indebtedness” means the existing Financial Indebtedness listed in Schedule 11 (Existing Financial Indebtedness).

“Existing Loans” means the existing loans listed in Schedule 10 (Existing Loans).

“Existing Security” means the existing Security listed in Schedule 9 (Existing Security).

“Extended Facility A Commitments” has the meaning set out in Clause 10.1 (Extension in respect of Facility A).

“Extended Facility A Loans” has the meaning set out in Clause 10.1 (Extension in respect of Facility A).

“Extended Facility A Maturity Date” has the meaning set out in Clause 10.1 (Extension of in respect of Facility A).

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“Extension Notice” has the meaning set out in Clause 10.2 (Extension Notice).

“Facility” means Facility A, Facility B or Facility C.

“Facility A” means the term loan facility made available under this Agreement as described in Clause 2.1(A) (Grant of Facilities).

“Facility A Commitment” means:

(a)          in relation to an Original Facility A Lender, the amount set opposite its name under the heading “Commitment (US$)” in Part I of Schedule 1 (The Original Lenders) and the amount of any other Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

(b)          in relation to any other Facility A Lender, the amount of any Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

“Facility A Lender” means:

(a)          an Original Facility A Lender; and

(b)          any other person that becomes a Facility A Lender after the date of this Agreement in accordance with Clause 2.2 (Increase) or Clause 27 (Changes to the Lenders),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

“Facility A Loan” means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.

“Facility A Maturity Date” means the Original Facility A Maturity Date, subject to extension pursuant to Clause 10 (Extension option).

“Facility B” means the term loan facility made available under this Agreement as described in Clause 2.1(B) (Grant of Facilities).

“Facility B Commitment” means:

(a)          in relation to an Original Facility B Lender, the amount set opposite its name under the heading “Commitment (US$)” in Part II of Schedule 1 (The Original Lenders) and the amount of any other Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

8

(b)          in relation to any other Facility B Lender, the amount of any Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

“Facility B Lender” means:

(a)          an Original Facility B Lender; and

(b)          any other person that becomes a Facility B Lender after the date of this Agreement in accordance with Clause 2.2 (Increase) or Clause 27 (Changes to the Lenders),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

“Facility B Loan” means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan.

“Facility B Maturity Date” means the date which is the second anniversary of the date of this Agreement.

“Facility B Repayment Date” means each relevant date specified in Clause 6 (Repayment).

“Facility B Repayment Instalment” means each relevant instalment specified in Clause 6 (Repayment).

“Facility C” means the term loan facility made available under this Agreement as described in Clause 2.1(C) (Grant of Facilities).

“Facility C Commitment” means:

(a)          in relation to an Original Facility C Lender, the amount set opposite its name under the heading “Commitment (US$)” in Part III of Schedule 1 (The Original Lenders) and the amount of any other Facility C Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

(b)          in relation to any other Facility C Lender, the amount of any Facility C Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

to the extent not cancelled, reduced or transferred by it under this Agreement.

“Facility C Lender” means:

(a)          an Original Facility C Lender; and

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(b)          any other person that becomes a Facility C Lender after the date of this Agreement in accordance with Clause 2.2 (Increase) or Clause 27 (Changes to the Lenders),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

“Facility C Loan” means a loan made or to be made under Facility C or the principal amount outstanding for the time being of that loan.

“Facility C Maturity Date” means the date which is the third anniversary of the date of this Agreement.

“Facility C Repayment Date” means each relevant date specified in Clause 6 (Repayment).

“Facility C Repayment Instalment” means each relevant instalment specified in Clause 6 (Repayment).

“Facility Office” means:

(a)          in relation to a Lender, the office identified as such opposite such Lender’s name in Part I, Part II or Part III (as applicable) of Schedule 1 (The Original Lenders) or such other office as it may from time to time select;

(b)          in relation to a New Lender, the office notified by that New Lender to the Agent in writing on or before the date it becomes a Lender as the office through which it will perform its obligations under this Agreement (including as may be notified at the end of the Transfer Certificate to which it is party as a transferee), or such other office as it may from time to time select; and

(c)          in relation to an Increase Lender that at the time immediately prior to the relevant increase in accordance with Clause 2.2 (Increase) is not a Lender, the office notified by that Increase Lender to the Agent in writing on or before the date it becomes a Lender as the office through which it will perform its obligations under this Agreement (including as may be notified in the relevant Increase Confirmation from that Increase Lender), or such other office as it may from time to time select.

“FATCA” means:

(a)          sections 1471 to 1474 of the Code or any associated regulations or other official guidance;

(b)          any treaty, law, regulation or other official guidance enacted in any jurisdiction other than the US, or relating to an intergovernmental agreement between the US and any jurisdiction other than the US, which (in either case) facilitates the implementation of paragraph (a) above; or

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(c)          any agreement pursuant to the implementation of paragraphs (a) or (b) above with the IRS, the US government or any governmental or taxation authority in any jurisdiction other than the US.

“FATCA Application Date” means:

(a)          in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;

(b)          in relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or

(c)          in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

“FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA.

“FATCA Exempt Party” means a Party that is entitled to receive payments free from any FATCA Deduction.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor thereto).

“Fee Letter” means any letter or letters dated on or about the date of this Agreement between the Original Arrangers or any of their Affiliates and the Parent Company (or the Agent and the Parent Company) setting out any of the fees payable in connection with the Facilities.

“Finance Document” means this Agreement, any Fee Letter, any Accession Letter, any Resignation Letter, the Syndication Letter, any Utilisation Request and any other document designated as such by the Agent and the Parent Company but excluding any hedging arrangements.

“Finance Party” means the Agent, any Arranger or any Lender.

“Financial Indebtedness” means any indebtedness for or in respect of:

(a)          moneys borrowed;

(b)          any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

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(c)          any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

(d)          the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with US GAAP, be treated as a finance or capital lease (but excluding the amount of any liability in respect of any lease or hire purchase contract which would not, in accordance with US GAAP as at the date of this Agreement, be treated as a finance or capital lease);

(e)          receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

(f)          any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;

(g)          any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

(h)          any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;

(i)           any amount raised by the issue of redeemable shares which are redeemable prior to the seventh anniversary of the date of this Agreement other than redeemable shares issued by a Subsidiary of the Parent Company where such redeemable shares are acquired by another member of the Group as consideration for, or in connection with, an issue by a member of the Group of equity securities or, to the extent not so acquired, are redeemed within 30 days after the date of their issue;

(j)           any amount of any liability under an advance or deferred purchase agreement if one of the primary reasons behind the entry into such agreement is to raise finance (excluding, for the avoidance of doubt, milestone and deferred consideration payments in respect of acquisitions of shares or other assets which are the subject of any acquisition); and

(k)          (without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.

“Fraudulent Transfer Law” means any applicable US Bankruptcy Law or any applicable US state fraudulent transfer or conveyance law.

“Funding Rate” means any individual rate notified by a Lender to the Agent pursuant to paragraph (A)(ii) of Clause 13.4 (Cost of funds).

“Group” means the Parent Company and its Subsidiaries for the time being.

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“Guarantor” means the Original Guarantor and any Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 28 (Changes to the Obligors).

“Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

“Impaired Agent” means the Agent at any time when:

(a)          it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

(b)          the Agent otherwise rescinds or repudiates a Finance Document;

(c)          (if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”; or

(d)          an Insolvency Event has occurred and is continuing with respect to the Agent,

unless, in the case of paragraph (a) above:

(i)           its failure to pay is caused by:

(A)         administrative or technical error; or

(B)         a Disruption Event; and

payment is made within five Business Days of its due date; or

(ii)         the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

“Increase Confirmation” means a confirmation substantially in the form set out in Schedule 14 (Form of Increase Confirmation).

“Increase Lender” has the meaning given to that term in Clause 2.2 (Increase).

“Information Memorandum” means the document (if any) prepared in relation to the Group and the Acquisition, approved by the Company and distributed by the Original Arrangers in connection with the Syndication.

“Information Memorandum Date” means the date on which the Information Memorandum (if any) is approved by the Company for distribution.

“Insolvency Event” means, in relation to a Finance Party:

(a)          the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of that Finance Party or all or substantially all of that Finance Party’s assets;

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(b)          that Finance Party suspends making payments on all or substantially all of its debts or publicly announces an intention to do so; or

(c)          any analogous procedure or step is taken in any jurisdiction with respect to that Finance Party.

“Interest Period” means, in relation to a Loan, each period determined in accordance with Clause 12 (Interest Periods) and in relation to an Unpaid Sum, each period determined in accordance with Clause 11.3 (Default interest).

“Interpolated Screen Rate” means, in relation to any Loan, the rate rounded to the same number of decimal places as the two relevant Screen Rates which results from interpolating on a linear basis between:

(a)          the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

(b)          the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each as of the Specified Time on the Quotation Day for dollars.

“Ireland” means the Republic of Ireland.

“IRS” means the United States Internal Revenue Service or any successor.

“Lender” means a Facility A Lender, a Facility B Lender or a Facility C Lender.

“Leverage Ratio” has the meaning given to it in Clause 23.2(A) (Financial condition).

“LIBOR” means, in relation to any Loan:

(a)          the applicable Screen Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or

(b)          as otherwise determined pursuant to Clause 13.1 (Unavailability of Screen Rate),

and, if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.

“Loan” means a Facility A Loan, a Facility B Loan or a Facility C Loan.

“Majority Lenders” means, subject to Clause 38.4 (Disenfranchisement of Defaulting Lenders):

(a)          if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate not less than  662/3 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated not less than 662/3 per cent. of the Total Commitments immediately prior to the reduction); or

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(b)          at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate not less than 662/3 per cent. of all the Loans then outstanding.

“Margin” means:

(a)          subject to paragraph (b) below:

(i)           in relation to:

(A)         any Facility A Loan, 0.55 per cent. per annum;

(B)         any Facility B Loan, 0.65 per cent. per annum; and

(C)         any Facility C Loan, 0.75 per cent. per annum,

in each case, prior to receipt by the Agent of the first Compliance Certificate required to be delivered after the date of this Agreement pursuant to Clause 22 (Information undertakings); and

(ii)         at all other times, when the ratio of Net Debt to EBITDA in respect of the most recently completed financial year or financial half year is within the range set out below, the rate set out opposite such range in the table below:

	Margin (per cent. per annum)
Ratio of Net Debt to EBITDA	Facility A	Facility B	Facility C
Greater than 3.5:1	1.00	1.10	1.20
Greater than 3.0:1 but less than or equal to 3.5:1	0.75	0.85	0.95
Greater than 2.5:1 but less than or equal to 3.0:1	0.55	0.65	0.75
Greater than 2.0:1 but less than or equal to 2.5:1	0.50	0.60	0.70
Greater than 1.5:1 but less than or equal to 2.0:1	0.45	0.55	0.65
Greater than 1.0:1 but less than or equal to 1.5:1	0.40	0.50	0.60
Less than or equal to 1.0:1	0.35	0.45	0.55

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and any reduction or increase in the Margin in accordance with the table above shall take effect five Business Days after receipt by the Agent of the relevant Compliance Certificate pursuant to Clause 22 (Information undertakings) and, from that date, shall apply to all Loans which are outstanding on that date and which are made on or after that date until the next change in Margin. For the purpose of determining the Margin, “Net Debt” and “EBITDA” shall be determined in accordance with Clause 23.1 (Financial definitions); or

(b)          notwithstanding paragraph (a) above, if and for so long as (x) an Event of Default under Clause 26.2 (Financial covenants) is continuing or (y) the Parent Company is in breach of its obligations under Clause 22 (Information undertakings) to provide a Compliance Certificate or relevant financial statements and the Parent Company has failed to remedy such breach within five Business Days following notification by the Agent, then for so long as such Event of Default or breach (as applicable) continues, paragraph (a) above shall not apply for the purposes of determining the Margin and the Margin will be:

(i)           in relation to any Facility A Loan, 1.00 per cent. per annum;

(ii)         in relation to any Facility B Loan, 1.10 per cent. per annum; and

(iii)        in relation to any Facility C Loan, 1.20 per cent. per annum.

“Margin Stock” means “margin stock” as defined in Regulation U.

“Material Adverse Effect” means a:

(a)          material adverse change in the business, operations, assets or financial condition of the Group taken as a whole which is likely to have a material adverse effect on the ability of the Obligors taken as a whole or the Parent Company to perform their respective payment obligations under the Finance Documents; or

(b)          material adverse effect on the validity or enforceability of the Finance Documents or the rights or remedies of any Finance Party under the Finance Documents.

“Material Company” means, at any time:

(a)          an Obligor; or

(b)          a Subsidiary of the Parent Company which has EBITDA (as defined in Clause 23.1 (Financial definitions) but calculated as though it applied to it) representing 10 per cent. or more of the EBITDA of the Group.

Compliance with such conditions shall be determined by reference to the most recent Compliance Certificate supplied by the Parent Company and/or the latest audited financial statements of that Subsidiary (consolidated in the case of a Subsidiary which

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itself has Subsidiaries) and the latest audited consolidated financial statements of the Group.

A report by the auditors of the Parent Company that a Subsidiary is or is not a Material Company (determined in accordance with the preceding paragraph) shall, in the absence of manifest error, be conclusive and binding on all Parties.

“Maturity Date” means:

(a)          in respect of Facility A, the Facility A Maturity Date;

(b)          in respect of Facility B, the Facility B Maturity Date; or

(c)          in respect of Facility C, the Facility C Maturity Date.

“Merger” means a merger pursuant to which the Merger Subsidiary will be merged with and into the Target whereby the Target is the surviving corporation pursuant to Section 251 of the General Corporation Law of the State of Delaware, and pursuant to which all outstanding Target Shares (other than those owned by the Target or in respect of which appraisal rights are validly exercised and perfected under the General Corporation Law of the State of Delaware) will be converted into the right to receive cash and one contingent value right.

“Merger Subsidiary” means Parquet Courts, Inc., a Delaware corporation and a member of the Group.

“Month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

(a)          (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one or, if there is not, on the immediately preceding Business Day;

(b)          if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

(c)          if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

The above rules will apply only to the last Month of any period.

“Multiemployer Plan” means, at any time, a multiemployer plan (as defined in Section 4001(a)(3) of ERISA), subject to the provisions of Title IV of ERISA,  then or at any time during the previous five years maintained for, or contributed to (or to which there is or was an obligation to contribute) by any Obligor or ERISA Affiliate.

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“New Lender” has the meaning given to that term in Clause 27 (Changes to the Lenders).

“Newco Scheme” means a scheme of arrangement or analogous proceeding (each, a “Scheme”, and including any modification, addition or condition thereto approved by the relevant court) which effects, in accordance with Clause 24.9 (Top Newco), the interposition of one or more limited liability companies (each, a “Newco”) between:

(a)          in relation to the first Scheme following the date of this Agreement, the shareholders immediately prior to that Scheme of the Company and the Company; or

(b)          in relation to any subsequent Scheme, the Newco interposed by the previous Scheme and its shareholders (provided that, where more than one Newco was interposed as part of the previous Scheme, only the top such Newco shall constitute Newco for these purposes).

“Newco Scheme Date” means the date of completion of any Newco Scheme.

“Obligor” means a Borrower or a Guarantor.

“Original Facility A Maturity Date” means the date falling 12 Months after the date of this Agreement.

“Original Financial Statements” means, in relation to the Parent Company, the audited consolidated financial statements of the Group for the financial year ended 31 December 2014.

“Parent Company” means the Company or, after completion of any Newco Scheme in accordance with the terms of this Agreement, the most recently interposed Top Newco.

“Participating Member State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

“Party” means a party to this Agreement.

“Permitted Securitisation” means any arrangements forming part of a transaction involving the securitisation or other financing of assets or cash flows (or both) relating to royalty income up to an aggregate funding amount equivalent for all such arrangements of US$ 350,000,000 over the life of the Facilities.

“Qualifying Lender” has the meaning given to it in Clause 15 (Tax gross-up and indemnities).

“Quotation Day” means, in relation to any period for which an interest rate is to be determined, two Business Days before the first day of that period, unless market practice differs in the Relevant Interbank Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the

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Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).

“Reference Bank Quotation” means any quotation supplied to the Agent by a Reference Bank.

“Reference Bank Rate” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks:

(a)          (other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in US dollars and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or

(b)          if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.

“Reference Banks” means the principal London offices of any banks as may be appointed by the Agent in consultation with the Parent Company.

“Register” has the meaning given to that term in Clause 29.21 (The Register).

“Regulation U” or “Regulation X” means, respectively, Regulation U or X of the Federal Reserve Board as now and from time to time in effect from the date of this Agreement and all official rulings and interpretations thereof and thereunder.

“Relevant Interbank Market” means the London interbank market.

“Relevant Period” has the meaning given to it in Clause 23.1 (Financial definitions).

“Repeating Representations” means each of the representations set out in Clauses 21.2 (Status) to 21.7 (Governing law and enforcement), Clause 21.10 (No default), Clause 21.13 (Pari passu ranking), Clause 21.14 (Anti-corruption law), Clause 21.15 (Sanctions) and Clause 21.17 (Federal Reserve regulations).

“Representative” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

“Resignation Letter” means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter).

“Screen Rate” means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or

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service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Parent Company.

“SEC” means the United States Securities and Exchange Commission or any successor thereto.

“Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

“Selection Notice” means a notice substantially in the form set out in Part II of Schedule 3 (Requests).

“SGF” means Shire Global Finance, a private unlimited company incorporated in England with registered number 05418960.

“Specified Time” means a day or time determined in accordance with Schedule 13 (Timetables).

“Subsidiary” means a subsidiary within the meaning of section 1159 of the Companies Act 2006.

“Syndication” means the primary syndication of the Facilities.

“Syndication Letter” means the letter dated on or around the date of this Agreement between the Original Arrangers, the Agent and the Company.

“Target” means Dyax Corp., a Delaware corporation.

“Target Shares” means the shares of common stock, par value $0.01 per share, of the Target.

“Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

“TCA” means the Taxes Consolidation Act 1997 of Ireland (as amended).

“Top Newco” means the top Newco most recently interposed by any Newco Scheme from time to time.

“Total Commitments” means the aggregate of the Total Facility A Commitments, the Total Facility B Commitments and the Total Facility C Commitments, being US$ 5,600,000,000 as at the date of this Agreement.

“Total Facility A Commitments” means the aggregate of the Facility A Commitments, being US$ 1,000,000,000 as at the date of this Agreement.

“Total Facility B Commitments” means the aggregate of the Facility B Commitments, being US$ 2,200,000,000 as at the date of this Agreement.

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“Total Facility C Commitments” means the aggregate of the Facility C Commitments, being US$ 2,400,000,000 as at the date of this Agreement.

“Transfer Certificate” means a certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate) or any other form agreed between the Agent and the Parent Company.

“Transfer Date” means, in relation to an assignment or a transfer, the later of:

(a)          the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

(b)          the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

“UK Borrower” means a Borrower which is incorporated in the United Kingdom or operating in the United Kingdom through a permanent establishment with which any payment under this Agreement is connected.

“Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents.

“US” and “United States” means the United States of America, its territories, possessions and other areas subject to the jurisdiction of the United States of America.

“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 of the United States, as amended.

“US Bankruptcy Law” means the United States Bankruptcy Code of 1978 (Title 11 of the United States Code) or any other United States federal or state bankruptcy, insolvency or similar law.

“US Borrower” means a Borrower whose jurisdiction of creation or organisation is a state of the United States of America or the District of Columbia or some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

“US GAAP” means generally accepted accounting principles in the United States of America.

“US Guarantor” means a Guarantor whose jurisdiction of creation or organisation is a state of the United States of America or the District of Columbia or some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

“US Obligor” means a US Borrower or a US Guarantor.

“Utilisation” means a utilisation of a Facility.

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“Utilisation Date” means the date of a Utilisation, being the date on which the relevant Loan is to be made.

“Utilisation Request” means a notice substantially in the form set out in Part I of Schedule 3 (Requests).

“VAT” means, in respect of the United Kingdom, value added tax as provided for in the Value Added Tax Act 1994 and any regulations promulgated thereunder; in respect of Ireland, value added tax as provided for in the Value-Added Tax Consolidation Act 2010 and any regulations promulgated thereunder; and any other Tax of a similar nature whether imposed in the United Kingdom or Ireland in substitution for, or levied in addition to, such Taxes, or imposed elsewhere.

1.2         Construction

(A)         Unless a contrary indication appears any reference in this Agreement to:

(i)           the “Agent”, an “Arranger”, any “Finance Party”, any “Lender”, any “Obligor” or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

(ii)         “assets” includes present and future properties, revenues and rights of every description;

(iii)        a “company” shall be construed so as to include any corporation or other body corporate, wherever and however incorporated or established;

(iv)        a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, restated, supplemented, replaced, superseded or novated;

(v)          “indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

(vi)        a “person” includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) of two or more of the foregoing;

(vii)       a “regulation” includes any regulation, rule, official directive or guideline (whether or not having the force of law but if not having the force of law being of a type which any person to which it applies is accustomed to comply) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other similar authority or organisation;

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(viii)      a provision of law or regulation (including an accounting standard) is a reference to that provision as amended or re-enacted; and

(ix)        a time of day is a reference to London time.

(B)         The determination of the extent to which a rate is “for a period equal in length” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

(C)         Section, Clause and Schedule headings are for ease of reference only.

(D)         Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

(E)         A Default or an Event of Default is “continuing” if it has not been remedied or waived.

1.3         Currency symbols and definitions

“$”, “dollars”, “US Dollars” and “US$” denote the lawful currency for the time being of the United States of America.

“EUR” and “euro” means the single currency unit of the Participating Member States.

“£” and “sterling” denote the lawful currency for the time being of the United Kingdom.

1.4         Third party rights

(A)         Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the benefit of any term of this Agreement.

(B)         Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

1.5         Irish terms

(A)         an “administration” includes an examinership within the meaning of the Companies (Amendment) Act 1990 of Ireland (as amended); and

(B)         an “administrator” includes an examiner within the meaning of the Companies (Amendment) Act 1990 of Ireland (as amended).

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SECTION 2
FACILITIES

2.            THE FACILITIES

2.1         Grant of Facilities

Subject to the terms of this Agreement:

(A)         the Facility A Lenders make available to the Borrowers an extendable US$ term loan facility in an aggregate amount equal to the Total Facility A Commitments;

(B)         the Facility B Lenders make available to the Borrowers a US$ term loan facility in an aggregate amount equal to the Total Facility B Commitments; and

(C)         the Facility C Lenders make available to the Borrowers a US$ term loan facility in an aggregate amount equal to the Total Facility C Commitments.

2.2         Increase

(A)         The Parent Company may, by giving prior notice to the Agent by no later than 30 days after the effective date of a cancellation of:

(i)           the Available Commitments of a Defaulting Lender in accordance with Clause 7.4 (Right of repayment and cancellation in relation to a single Lender or Defaulting Lender); or

(ii)         the Commitments of a Lender in accordance with Clause 7.1 (Illegality) or Clause 7.4 (Right of repayment and cancellation in relation to a single Lender or Defaulting Lender),

request that the Commitments relating to the relevant Facility be increased (and the Commitments relating to that Facility shall be so increased) in an aggregate amount in dollars of up to the amount of the Available Commitments or Commitments relating to that Facility so cancelled, as follows:

(a)          the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities which (in each case) shall not be a member of the Group (each an “Increase Lender”) selected by the Parent Company and each of which confirms in writing (whether in the Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;

(b)          each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would

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               have assumed and/or acquired had the Increase Lender been an Original Lender;

(c)          each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;

(d)          the Commitments of the other Lenders shall continue in full force and effect; and

(e)          any such increase in the Commitments relating to a Facility shall take effect on the date specified by the Parent Company in the notice referred to above or any later date on which the conditions set out in paragraph (B) below are satisfied.

(B)         An increase in the Commitments relating to a Facility will be effective only on:

(i)           the execution by the Agent of an Increase Confirmation from the relevant Increase Lender; and

(ii)         in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Agent shall promptly notify to the Parent Company and the Increase Lender.

(C)         Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

(D)         The Parent Company shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee of US$ 3,000 and the Parent Company shall promptly on demand pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.

(E)         Clause 27.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

(i)           an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;

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(ii)         the “New Lender” were references to that “Increase Lender”; and

(iii)        a “re-transfer” and “re-assignment” were references to, respectively, a “transfer” and “assignment”.

2.3         Finance Parties’ rights and obligations

(A)         The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

(B)         The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.

(C)         A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.

3.            PURPOSE

3.1         Purpose

Each Borrower shall apply all amounts borrowed by it under the Facilities towards financing (either directly or indirectly, including by way of on-lending by the relevant Borrower to other members of the Group) the purchase price payable (including any deferred or contingent consideration that becomes payable) in respect of the Acquisition and the payment of related Acquisition Costs and transaction costs (including related integration and reorganisation costs).

3.2         Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

4.            CONDITIONS OF UTILISATION

4.1         Initial conditions precedent

(A)         No Borrower (nor the Parent Company) may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part I(A) of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent (acting reasonably). The Agent shall notify the Parent Company and the Lenders promptly upon being so satisfied.

(B)         The Lenders will be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to any Utilisation only if on or before the Utilisation Date for that Utilisation the Agent has received all of the documents and other evidence listed

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in Part I(B) of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent (acting reasonably). The Agent shall notify the Parent Company and the Lenders promptly upon being satisfied it has received such documents and other evidence.

(C)Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (A) or paragraph (B) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

4.2Further conditions precedent

The Lenders will be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to a Loan only if, on the date of the Utilisation Request and on the proposed Utilisation Date:

(A)no Default is continuing or will result from the proposed Loan; and

(B)the Repeating Representations to be made by each Obligor are true in all material respects.

4.3Maximum number of Utilisation Requests

A Borrower may not deliver a Utilisation Request if, as a result of the proposed Utilisation, more than twelve Loans would be outstanding, unless otherwise agreed by the Parent Company and the Agent.

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SECTION 3
UTILISATION

5.UTILISATION

5.1Delivery of a Utilisation Request

A Borrower may utilise a Facility by delivery by it (or the Parent Company on behalf of the Borrower) to the Agent of a duly completed Utilisation Request by not later than the Specified Time.

5.2Completion of a Utilisation Request

(A)Each Utilisation Request delivered to the Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request) is irrevocable and will not be regarded as having been duly completed unless:

(i)it identifies the Borrower and the Facility to be utilised;

(ii)the proposed Utilisation Date is a Business Day within the Availability Period;

(iii)the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and

(iv)the proposed Interest Period complies with Clause 12 (Interest Periods).

(B)Only one Loan may be requested in each Utilisation Request delivered to the Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request).

5.3Currency and amount

(A)The currency specified in a Utilisation Request delivered to the Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request) for the purpose of drawing a Loan must be dollars.

(B)The amount of the proposed Loan shall be an amount which is not more than the Available Facility and must be a minimum of US$ 10,000,000 or, if less, the Available Facility.

5.4Lenders’ participation

(A)If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

(B)The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

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(C)The Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan promptly following receipt of the relevant Utilisation Request.

5.5Cancellation of Commitments

Any Facility A Commitments, Facility B Commitments and Facility C Commitments which, at that time, are unutilised shall be immediately and automatically cancelled at the end of the applicable Availability Period (as extended in accordance with the terms of that definition).

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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION

6.REPAYMENT

(A)Subject to Clause 10 (Extension Option), each Borrower shall repay all outstanding Facility A Loans borrowed by it in full on the Facility A Maturity Date.

(B)The Borrowers under Facility B shall repay the aggregate Facility B Loans in instalments by repaying on each Facility B Repayment Date an amount which reduces the amount of the outstanding aggregate Facility B Loans by the amount set out opposite that Facility B Repayment Date in the following table:

Facility B Repayment Date	Facility B Repayment Instalment
Date falling 15 Months after the date of this Agreement	$400,000,000 or, if less, the aggregate amount of outstanding Facility B Loans (if any)
Date falling 18 Months after the date of this Agreement	$400,000,000 or, if less, the aggregate amount of outstanding Facility B Loans (if any)
Date falling 21 Months after the date of this Agreement	$400,000,000 or, if less, the aggregate amount of outstanding Facility B Loans (if any)
Facility B Maturity Date	The aggregate amount of outstanding Facility B Loans (if any)

If, in relation to a Facility B Repayment Date, the aggregate amount of the Facility B Loans made to the Borrowers exceeds the Facility B Repayment Instalment to be repaid, the Parent Company may, if it gives the Agent not less than 3 Business Days’ notice, select which of the Facility B Loans will be repaid so that the relevant Facility B Repayment Instalment is repaid on the relevant Facility B Repayment Date in full.  If the Parent Company fails to deliver a notice to the Agent in accordance with this paragraph, the Agent shall select the Facility B Loans to be repaid.

(C)The Borrowers under Facility C shall repay the aggregate Facility C Loans in instalments by repaying on each Facility C Repayment Date an amount which reduces the amount of the outstanding aggregate Facility C Loans by the amount set out opposite that Facility C Repayment Date in the following table:

Facility C Repayment Date	Facility C Repayment Instalment
Date falling 27 Months after the date of this Agreement	$400,000,000 or, if less, the aggregate amount of outstanding Facility C Loans (if any)

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Date falling 30 Months after the date of this Agreement	$400,000,000 or, if less, the aggregate amount of outstanding Facility C Loans (if any)
Date falling 33 Months after the date of this Agreement	$400,000,000 or, if less, the aggregate amount of outstanding Facility C Loans (if any)
Facility C Maturity Date	The aggregate amount of outstanding Facility C Loans (if any)

If, in relation to a Facility C Repayment Date, the aggregate amount of the Facility C Loans made to the Borrowers exceeds the Facility C Repayment Instalment to be repaid, the Parent Company may, if it gives the Agent not less than 3 Business Days’ notice, select which of the Facility C Loans will be repaid so that the relevant Facility C Repayment Instalment is repaid on the relevant Facility C Repayment Date in full.  If the Parent Company fails to deliver a notice to the Agent in accordance with this paragraph, the Agent shall select the Facility C Loans to be repaid.

(D)No Borrower may reborrow any part of a Facility which is repaid (other than as contemplated in Clause 2.2 (Increase)).

(E)If the whole or any part of any Available Commitments are cancelled in accordance with this Agreement (other than to the extent that any part of the relevant Available Commitments so cancelled are subsequently increased pursuant to Clause 2.2 (Increase)):

(i)in the case of Facility B Commitments, the amount of the Facility B Repayment Instalment for each Facility B Repayment Date falling on or after the date of that cancellation will reduce in chronological order by the amount cancelled; and

(ii)in the case of Facility C Commitments, the amount of the Facility C Repayment Instalment for each Facility C Repayment Date falling on or after the date of that cancellation will reduce in chronological order by the amount cancelled.

(F)If any Loans are repaid or prepaid in accordance with the terms of this Agreement (but not, for the avoidance of doubt, pursuant to paragraphs (B) and (C) of this Clause 6):

(i)in the case of Facility B Loans, the amount of the Facility B Repayment Instalment for each Facility B Repayment Date falling on or after the date of that repayment or prepayment will reduce in chronological order by the amount of the Facility B Loans repaid or prepaid; and

(ii)in the case of Facility C Loans, the amount of the Facility C Repayment Instalment for each Facility C Repayment Date falling on or after the

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date of that repayment or prepayment will reduce in chronological order by the amount of the Facility C Loans repaid or prepaid.

7.ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

7.1Illegality

If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan, that Lender shall promptly notify the Agent upon becoming aware of that event and shall also notify the Agent that it requires either or both of the following:

(A)upon the Agent notifying the Parent Company, the Available Commitments of that Lender will be immediately cancelled; and/or

(B)each Borrower shall repay that Lender’s participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Parent Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.

7.2Voluntary cancellation

The Parent Company may, if it gives the Agent not less than three Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (but, if in part, being a minimum amount of US$ 10,000,000) of an Available Facility. Any cancellation under this Clause 7.2 shall reduce the Commitments of the Lenders rateably under the relevant Facility.

7.3Voluntary prepayment of Loans

The Borrower to which a Loan has been made may, if it gives the Agent not less than three Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of US$ 10,000,000).

7.4Right of repayment and cancellation in relation to a single Lender or Defaulting Lender

(A)If:

(i)any sum payable to any Lender by an Obligor is required to be increased under paragraph (D) of Clause 15.2 (Tax gross-up);

(ii)the Parent Company receives a demand from the Agent under Clause 15.3 (Tax indemnity) or Clause 16.1 (Increased Costs); or

(iii)a Lender becomes a Defaulting Lender,

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the Parent Company may, while the circumstances under paragraphs (i) or (iii) above or the circumstance giving rise to the demand or notice under paragraph (ii) above continues, give the Agent notice of cancellation of the Commitments of that Lender and its intention to procure the repayment of that Lender’s participation in the Loans.

(B)On receipt of a notice from the Parent Company referred to in paragraph (A) above, the Commitments of that Lender shall immediately be reduced to zero.

(C)On the last day of each Interest Period which ends after the Parent Company has given notice under paragraph (A) above (or, if earlier, the date specified by the Parent Company in that notice), the Borrower to which a Loan is outstanding shall repay that Lender’s participation in that Loan.

7.5Mandatory Cancellation

(A)Subject to paragraph (B) below, if the Parent Company determines (acting reasonably) that it is certain that the Acquisition will not complete during the Availability Period for Facilities B and C or the Availability Period (as might be extended in accordance with the terms of that definition) for Facility A, it will promptly notify the Agent.  On receipt by the Agent of such notice, the Commitments of each Lender shall immediately be cancelled in full.

(B)If the Parent Company determines (acting reasonably) that the Acquisition would complete during the Availability Period if the Availability Period for the Facilities were extended beyond the date falling 15 Months after the date of this Agreement, it may promptly notify the Agent and request the consent of the Lenders to such extension in accordance with Clause 38 (Amendments and waivers).  For the avoidance of doubt, no such extension shall be made unless it is consented to by each Lender and no Lender is obliged to give such consent (and the decision whether to do so shall be in each Lender’s sole discretion).

8.MANDATORY PREPAYMENT

8.1Mandatory prepayment on change of control

(A)If any person or group of persons acting in concert gains control of the Parent Company (other than pursuant to a Newco Scheme):

(i)the Parent Company shall promptly notify the Agent upon becoming aware of that event;

(ii)a Lender shall not be obliged to fund a Utilisation; and

(iii)if a Lender so requires, the Agent shall, by not less than 30 days’ notice to the Parent Company, cancel that Lender’s Commitments and, subject to paragraph (D) below, declare all outstanding Loans due to such Lender, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable,

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whereupon that Lender’s Commitments will be cancelled and all such outstanding amounts will become immediately due and payable.

(B)For the purpose of paragraph (A) above “control” means:

(i)the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to cast, or control the casting of, more than one-half of the maximum number of votes that may be cast at a general meeting of the Parent Company; or

(ii)the holding of more than one-half of the issued share capital of the Parent Company (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).

(C)For the purpose of paragraph (A) above “acting in concert” means a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition by any of them, either directly or indirectly, of shares in the Parent Company, to obtain or consolidate control of the Parent Company.

(D)If a date for prepayment of a Loan pursuant to Clause 8.1(A)(iii) falls otherwise than on the last day of an Interest Period, such prepayment may be made on the last day of that Loan’s then current Interest Period (unless the relevant Lender instead requires prepayment upon expiry of the notice to the Parent Company pursuant to Clause 8.1(A)(iii) (or such longer period as that Lender and the Parent Company may agree), provided that in such case no Break Costs shall be payable in relation thereto).

8.2Mandatory prepayment and cancellation out of certain proceeds

(A)Except as provided in paragraph (B) below, the Parent Company shall ensure that all Capital Markets Proceeds are applied in cancellation of the Available Commitments under Facility A and (if applicable) prepayment of the Facility A Loans at the times and in the order of application contemplated by paragraphs (C) and (D) below.

(B)No cancellation or prepayment will be required pursuant to paragraph (A) of this Clause 8.2 to the extent that the relevant Capital Markets Proceeds are also required to be applied in prepayment or cancellation in accordance with any mandatory prepayment and cancellation obligations under an Existing Facilities Agreement, any replacement or refinancing thereof or any other agreement entered into by a member of the Group after the date of this Agreement for the purpose of funding the acquisition by any member of the Group of any company, shares, undertaking or business (and related costs, liabilities and expenses, including any share buy-back or similar return of value implemented or proposed to be implemented in connection with any such acquisition).

(C)Any amount to be applied in cancellation and (if applicable) prepayment pursuant to paragraph (A) above shall be applied in the following order:

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(i)first, towards the cancellation of the Available Commitments under Facility A until such Available Commitments have been reduced to zero (and, for the avoidance of doubt, the Available Commitments of the Facility A Lenders will be cancelled rateably); and

(ii)secondly, in prepayment of Facility A Loans until all the Facility A Loans have been prepaid in full.

The Parent Company shall be entitled to select which Facility A Loans shall be prepaid in accordance with paragraph (ii) above.

(D)Any prepayment of a Loan pursuant to paragraph (C) above shall be made no later than the date which is the earlier of:

(i)one Month after the Trigger Date; and

(ii)the last day of the first Interest Period relating to the Loan being prepaid to end at least three Business Days after the Trigger Date,

provided that if, before that date, the Agent exercises any of its rights under paragraph (i) or (ii) of Clause 26.14(A) (Acceleration), or the Commitments of a Lender are cancelled under Clause 8.1 above, that amount shall be applied on the date of acceleration or, as the case may be, cancellation.

(E)The Parent Company shall, within three Business Days of the Trigger Date, notify the Agent of a cancellation of Available Commitments or a requirement to prepay Loans pursuant to paragraph (C) above.

(F)For the purposes of this Clause 8.2, the “Trigger Date” means the date of receipt of the relevant Capital Markets Proceeds by the applicable member of the Group PROVIDED THAT in the case of any Capital Markets Issue the proceeds or the net cash proceeds of which were proposed to be used within 6 Months of the date of receipt by a member of the Group to fund the acquisition by any member of the Group of any company, shares, undertaking or business (and related costs, liabilities and expenses, including any share buy-back or similar return of value implemented or proposed to be implemented in connection with any such acquisition), where any such proceeds are in fact not so utilised within such timeframe, the portion of proceeds which are in fact not so utilised shall constitute “Capital Market Proceeds” and the “Trigger Date” with respect to such Capital Market Proceeds shall be the date falling 6 Months after the date of receipt thereof by a member of the Group.

8.3Mandatory prepayment — Acquisition CP Satisfaction

If Acquisition CP Satisfaction has not occurred by 5.00pm on the last day of the applicable Availability Period (as extended in accordance with the terms of that definition):

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(a)all outstanding Loans, together with accrued interest and all other amounts accrued under the Finance Documents, shall be repaid within three Business Days after the last day of the Availability Period; and

(b)the Available Commitments of each Lender shall be cancelled in full.

9.RESTRICTIONS

9.1Notices of cancellation and prepayment

Any notice of cancellation or prepayment given by any Party under Clause 7 (Illegality, voluntary prepayment and cancellation) or Clause 8 (Mandatory prepayment) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

9.2Interest and other amounts

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

9.3No reborrowing of Loans

No Borrower may reborrow any part of a Loan which is prepaid.

9.4Prepayment in accordance with Agreement

The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

9.5No reinstatement of Commitments

For the avoidance of doubt, subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

9.6Agent’s receipt of notices

If the Agent receives a notice under Clause 7 (Illegality, voluntary prepayment and cancellation) or Clause 8 (Mandatory prepayment), it shall promptly forward a copy of that notice to either the Parent Company or the affected Lender, as appropriate.

9.7Effect of repayment or prepayment on Commitments

If all or part of any Lender’s participation in a Loan under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 2.2 (Increase)), an amount of that Lender’s Commitment (equal to the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

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10.EXTENSION OPTION

10.1Extension in respect of Facility A

(A)Subject to Clause 10.2 (Extension Notice), the Parent Company shall be entitled to extend the Facility A Maturity Date in respect of:

(i)all or any part of the Facility A Loans outstanding on the Original Facility A Maturity Date for an additional period of 12 Months from the Original Facility A Maturity Date (the Facility A Loans so extended being the “Extended Facility A Loans”); and/or

(ii)all or any part of the Facility A Commitments which are unutilised immediately prior to the end of the Availability Period on the Original Facility A Maturity Date for an additional period of 12 Months from the Original Facility A Maturity Date (provided that, for the avoidance of doubt and notwithstanding any such extension, such Facility A Commitments may only be utilised up to the end of the Availability Period of Facility A (as extended in accordance with the definition thereof or otherwise with the consent of all the Lenders)) (the Facility A Commitments so extended being the “Extended Facility A Commitments”).

(B)Any part of any Facility A Loan outstanding on the Original Facility A Maturity Date which the Parent Company has not requested to be extended pursuant to paragraph (A) above shall be repayable on the Original Facility A Maturity Date in accordance with Clause 6 (Repayment).

10.2Extension Notice

The right of the Parent Company to extend the Facility A Maturity Date pursuant to Clause 10.1 (Extension in respect of Facility A) may be exercised no more than once by the Parent Company giving notice to the Agent (the “Extension Notice”) not more than 60 or less than 30 days before the Original Facility A Maturity Date.  Such notice shall be given in writing, shall be unconditional and binding on the Parent Company and shall:

(A)specify the aggregate amount or proportion of the Facility A Loans which the Parent Company wishes to extend; and/or

(B)specify the aggregate amount or proportion of the Facility A Commitments which the Parent Company wishes to extend.

10.3Notification of Extension Notice

The Agent shall forward a copy of the Extension Notice to the relevant Lenders as soon as practicable after receipt of it provided that failure of the Agent to do so shall not affect the Parent Company’s right to effect any extension in accordance with this Clause 10.

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10.4Facility A Maturity Date of Extended Facility A Loans and Extended Facility A Commitments

Following delivery of an Extension Notice pursuant to Clause 10.2 (Extension Notice) above, the Facility A Maturity Date of any Extended Facility A Loans and Extended Facility A Commitments shall be the date falling 12 Months after the Original Facility A Maturity Date and references to “Facility A Maturity Date” shall be construed accordingly, subject to:

(A)no Event of Default having occurred or continuing on the Original Facility A Maturity Date; and

(B)the Repeating Representations to be made by each Obligor being true in all material respects on the Original Facility A Maturity Date.

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SECTION 5
COSTS OF UTILISATION

11.INTEREST

11.1Calculation of interest

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

(A)Margin; and

(B)LIBOR.

11.2Payment of interest

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six Monthly intervals after the first day of the Interest Period).

11.3Default interest

(A)If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (B) below, is one per cent. higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 11.3 shall be immediately payable by the Obligor on demand by the Agent.

(B)If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

(i)the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

(ii)the rate of interest applying to the overdue amount during that first Interest Period shall be one per cent. higher than the rate which would have applied if the overdue amount had not become due.

(C)Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

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11.4Notification of rates of interest

(A)The Agent shall promptly notify the relevant Lenders, the relevant Borrower and the Parent Company of the determination of a rate of interest under this Agreement.

(B)The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

12.INTEREST PERIODS

12.1Selection of Interest Periods

(A)A Borrower (or the Parent Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if that Loan has already been borrowed) in a Selection Notice.

(B)Each Selection Notice for a Loan is irrevocable and must be delivered to the Agent by the relevant Borrower (or the Parent Company on behalf of that Borrower) by not later than the Specified Time.

(C)If a Borrower (or the Parent Company on behalf of that Borrower) fails to deliver a Selection Notice to the Agent in accordance with paragraph (B) above, the relevant Interest Period will be one Month.

(D)Subject to this Clause 12, a Borrower (or the Parent Company on its behalf) may select an Interest Period of one week, one, two, three or six Months or any other period agreed between the Parent Company and the Agent (acting on the instructions of all the Lenders).

(E)Prior to the close of Syndication, Interest Periods shall be one Month or one week or such shorter period as agreed between the Parent Company and the Agent (acting on the instructions of all the Lenders).

(F)An Interest Period for a Loan shall not extend beyond its Maturity Date.

(G)With effect from the close of Syndication, no more than five Interest Periods of one week may be selected during the 12 Month period commencing on the close of Syndication and thereafter no Interest Periods of one week may be selected, in each case unless otherwise agreed by the Agent (acting on the instructions of all the Lenders).

(H)A Borrower (or the Parent Company on behalf of that Borrower) may select an Interest Period of less than one Month in relation to Facility B or Facility C if necessary to ensure that there are sufficient Facility B Loans or Facility C Loans (as applicable) which have an Interest Period ending on a Facility B Repayment Date or Facility C Repayment Date (as applicable) for the Borrowers to make the relevant instalment payment due on that date.

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12.2Overrunning of the Maturity Date

If an Interest Period in respect of a Loan borrowed would otherwise overrun its Maturity Date, it shall be shortened so that it ends on its Maturity Date.

12.3Other adjustments

(A)If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

(B)The Agent (after prior consultation with the Lenders) and the Parent Company may enter into such other arrangements as they may agree for the adjustment of Interest Periods.

12.4Notification

The Agent shall notify the relevant Borrower and the Lenders of the duration of each Interest Period promptly after ascertaining its duration.

13.CHANGES TO THE CALCULATION OF INTEREST

13.1Unavailability of Screen Rate

(A)Interpolated Screen Rate: If no Screen Rate is available for LIBOR for the Interest Period of a Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

(B)Reference Bank Rate:  If no Screen Rate is available for LIBOR for:

(i)the currency of a Loan; or

(ii)the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.

(C)Cost of funds:  If paragraph (B) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period, there shall be no LIBOR for that Loan and Clause 13.4 (Cost of funds) shall apply to that Loan for that Interest Period.

13.2Calculation of Reference Bank Rate

(A)Subject to paragraph (B) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.

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(B)If, at or about noon on the Quotation Day, none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.

13.3Market disruption

If, before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 50 per cent. of that Loan) that the cost to it of funding its participation in that Loan from the wholesale market for the relevant currency would be in excess of LIBOR, then Clause 13.4 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

13.4Cost of funds

(A)If this Clause 13.4 (Cost of funds) applies, the rate of interest on each Lender’s share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

(i)the Margin; and

(ii)the rate notified to the Agent by that Lender as soon as practicable and, in any event, before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

(B)If this Clause 13.4 (Cost of funds) applies and the Agent or the Parent Company so requires, the Agent and the Parent Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

(C)Any alternative basis agreed pursuant to paragraph (B) above shall, with the prior consent of all the Lenders and the Parent Company, be binding on all Parties.

13.5Break Costs

(A)Subject to Clause 8.1(D) (Mandatory prepayment on chance of control), each Borrower shall, within five Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

(B)Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

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14.FEES

14.1Commitment fees

(A)The Parent Company shall, in accordance with Clause 14.2 (Timing of payment of commitment fees), pay to the Agent:

(i)for the account of each Facility A Lender, a fee in US dollars computed at the rate of the applicable Commitment Fee Rate multiplied by the applicable Margin in respect of Facility A on that Facility A Lender’s Available Commitment for the Availability Period in respect of Facility A;

(ii)for the account of each Facility B Lender, a fee in US dollars computed at the rate of the applicable Commitment Fee Rate multiplied by the applicable Margin in respect of Facility B on that Facility B Lender’s Available Commitment for the Availability Period in respect of Facility B; and

(iii)for the account of each Facility C Lender, a fee in US dollars computed at the rate of the applicable Commitment Fee Rate multiplied by the applicable Margin in respect of Facility C on that Facility C Lender’s Available Commitment for the Availability Period in respect of Facility C.

(B)The “Commitment Fee Rate” means, in relation to each Facility:

(i)with effect from the first Utilisation Date in respect of that Facility, 35 per cent.; and

(ii)prior to the first Utilisation Date in respect of that Facility:

(a)during the first Month of the Availability Period (or any part thereof), 0 per cent.;

(b)during the second Month of the Availability Period (or any part thereof), 112/3 per cent.;

(c)during the third Month of the Availability Period (or any part thereof), 231/3 per cent.; and

(d)during the fourth or any subsequent Month of the Availability Period (or any part thereof), 35 per cent.

14.2Timing of payment of commitment fees

(A)Any accrued commitment fee is payable quarterly in arrear on the last day of each successive period of three Months which ends during the Availability Period in respect of the applicable Facility, on the last day of the Availability Period in respect of the applicable Facility and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the

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cancellation is effective.  The accrued commitment fee shall be paid within three Business Days after its due date.

(B)No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

14.3Extension fee

(A)Following the delivery of an Extension Notice, the Parent Company shall pay to the Agent (in total and for the account of the Lenders of the Extended Facility A Loans and the Lenders in respect of the Extended Facility A Commitments (as applicable)) an extension fee computed at the applicable Extension Fee Rate multiplied by the aggregate amount of the Extended Facility A Loans and the Extended Facility A Commitments (as applicable). Such fee shall be paid on the Original Facility A Maturity Date.

(B)The “Extension Fee Rate” means:

(i)if the aggregate amount of the Extended Facility A Loans and Extended Facility A Commitments (as applicable) is more than 50% of the aggregate amount on the date of this Agreement of the Facility A Commitments:

(a)if the ratio of Net Debt to EBITDA as set out in the most recently delivered Compliance Certificate was greater than 2.5:1, 0.30 per cent.; and

(b)if the ratio of Net Debt to EBITDA as set out in the most recently delivered Compliance Certificate was less than or equal to 2.5:1, 0.20 per cent; and

(ii)if the aggregate amount of the Extended Facility A Loans and Extended Facility A Commitments (as applicable) is 50% or less of the aggregate amount on the date of this Agreement of the Facility A Commitments:

(a)if the ratio of Net Debt to EBITDA as set out in the most recently delivered Compliance Certificate was greater than 2.5:1, 0.15 per cent.; and

(b)if the ratio of Net Debt to EBITDA as set out in the most recently delivered Compliance Certificate was less than or equal to 2.5:1, 0.10 per cent.

14.4Drawdown fee and duration fee

The Parent Company shall pay to the Agent (for the account of the relevant Lenders) a drawdown fee and a duration fee in each case in the amount and at the times agreed in a Fee Letter.

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14.5Agency fee

The Parent Company shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS

15.TAX GROSS-UP AND INDEMNITIES

15.1Definitions

(A)In this Agreement:

“HMRC DT Treaty Passport Scheme” means the HM Revenue & Customs Double Taxation Treaty Passport Scheme for overseas corporate lenders.

“Protected Party” means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

“Qualifying Lender” means:

(a)with respect to an amount due from an Obligor incorporated in the United Kingdom or operating in the United Kingdom through a permanent establishment with which the relevant amount is connected:

(i)a Lender which is beneficially entitled to the interest payable to that Lender in respect of an advance under a Finance Document and is a Lender:

(1)which is a bank (as defined for the purpose of section 879 of the Income Tax Act 2007) making an advance under a Finance Document and which is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

(2)in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the Income Tax Act 2007) at the time that that advance was made, and which either is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA;

(ii)a Treaty Lender with respect to the United Kingdom; or

(iii)a Lender which is:

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(1)a company resident in the United Kingdom for United Kingdom Tax purposes;

(2)a partnership each member of which is:

(A)a company so resident in the United Kingdom; or

(B)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(3)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company,

(such Qualifying Lender within this Clause 15.1(A)(a) being a “UK Qualifying Lender”); and

(b)with respect to a payment made by an Obligor resident for Tax purposes in Ireland or operating in Ireland through a branch or agency with which the relevant amount is connected:

(i)a Lender which is beneficially entitled to the interest payable to that Lender in respect of an advance under a Finance Document and is:

(1)a bank within the meaning of Section 246 of the TCA and which is recognised by the Revenue Commissioners of Ireland as carrying on a bona fide banking business in Ireland for the purposes of Section 246(3)(a) of the TCA, whose Facility Office is located in Ireland and which is regarded by the Revenue Commissioners of Ireland as having made the Utilisation for the purposes of Section 246(3)(a) of the TCA;

(2)an authorised credit institution under the terms of Directive 2013/36/EC of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of

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credit institutions and investment firms that has duly established a branch in Ireland and has made all necessary notifications to its home state competent authorities required thereunder in relation to its intention to carry on banking business in Ireland and carries on a bona fide banking business in Ireland for the purposes of Section 246(3)(a) of the TCA and has its Facility Office located in Ireland;

(3)a company (within the meaning of Section 246 of the TCA):

(A)which, by virtue of the law of a Relevant Territory is resident in the Relevant Territory as defined in Section 246(1) of the TCA and that jurisdiction imposes a Tax that generally applies to interest receivable in that jurisdiction by companies from sources outside that jurisdiction; or

(B)in receipt of interest which:

(x)is exempted from the charge to Irish income tax pursuant to the terms of a double taxation treaty entered into between Ireland and another jurisdiction that is in force on the date the relevant interest is paid; or

(y)would be exempted from the charge to Irish income tax pursuant to the terms of a double taxation treaty entered into between Ireland and another jurisdiction signed on or before the date on which the relevant interest is paid but not in force on that date, assuming that treaty had the force of law on that date by virtue of Section 826(1) of the TCA,

provided that, in the case of both (A) and (B) above, such company does not provide its commitment through or in connection with a trade or business which is carried out in Ireland by it through a branch or agency;

(4)a US corporation that is incorporated in the US and is subject to US federal income tax on its worldwide income provided that such US corporation does not provide its commitment in connection with a trade or

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business which is carried on in Ireland through a branch or agency in Ireland;

(5)a US LLC, where the ultimate recipients of the interest payable to that LLC satisfy the requirements set out in paragraph (3) above and the business conducted through the LLC is so structured for market reasons and not for tax avoidance purposes, provided that such LLC and the ultimate recipients of the relevant interest do not provide their commitment in connection with a trade or business which is carried on in Ireland through a branch or agency in Ireland;

(6)a company (within the meaning of Section 246 of the TCA):

(A)which advances money in the ordinary course of a trade which includes the lending of money;

(B)in whose hands any interest payable in respect of money so advanced is taken into account in computing the trading income of that company;

(C)which has complied with the notification requirements set out in Section 246(5)(a) of the TCA; and

(D)whose Facility Office is located in Ireland;

(7)a qualifying company (within the meaning of Section 110 of the TCA) and whose Facility Office is located in Ireland; or

(8)an investment undertaking (within the meaning of Section 739B of the TCA) and whose Facility Office is located in Ireland; or

(ii)a Treaty Lender with respect to Ireland,

(such Qualifying Lender within this Clause 15.1(A)(b) being an “Irish Qualifying Lender”).

“Relevant Territory” means:

(a)a member state of the European Union (other than Ireland); or

(b)to the extent it is not a member state of the European Union, a jurisdiction with which Ireland has entered into a double taxation treaty that either has the force of law by virtue of Section 826(1) of the TCA or

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which will have the force of law on completion of the procedures set out in Section 826(1) of the TCA.

“Tax Credit” means a credit against, relief or remission from, or repayment of, any Tax.

“Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

“Tax Payment” means either the increase in a payment made by an Obligor to a Finance Party under Clause 15.2 (Tax gross-up) or a payment under Clause 15.3 (Tax indemnity).

“Treaty Lender”, with respect to a jurisdiction, means a Lender which is, on the date any relevant payment falls due, entitled under the provisions of a double taxation treaty (a “Treaty”) in force on that date to receive payments of interest from a person resident for the purposes of the relevant Treaty in such jurisdiction (or operating in such jurisdiction (other than Ireland) through a permanent establishment, branch or agency with which the relevant payments of interest are connected) without a Tax Deduction (subject to the completion of any necessary procedural formalities, such as an application by a Lender to HM Revenue & Customs or the Irish Revenue Commissioners, as appropriate, that payments may be made to that Lender without a Tax Deduction).

“UK Non-Bank Lender” means:

(i)where a Lender becomes a Party on the day on which this Agreement is entered into, a Lender identified in Part I, Part II or Part III of Schedule 1 (The Original Lenders) as a UK Non-Bank Lender; and

(ii)where a Lender becomes a Party after the day on which this Agreement is entered into, a Lender which gives a UK Tax Confirmation in the Assignment Agreement, Transfer Certificate or Increase Confirmation which it executes on becoming a Party.

“UK Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

(i)a company resident in the United Kingdom for United Kingdom Tax purposes;

(ii)a partnership each member of which is:

(a)a company so resident in the United Kingdom; or

(b)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA)

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the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(iii)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

(B)Unless a contrary indication appears, in this Clause 15 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

15.2Tax gross-up

(A)Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

(B)The Parent Company shall promptly upon becoming aware that an Obligor is required by law to make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly.

(C)Each Lender as at the date of this Agreement confirms that it is a UK Qualifying Lender and an Irish Qualifying Lender. This confirmation is given as at the date of this Agreement.  A Lender which becomes party to this Agreement by means of a Transfer Certificate or Increase Confirmation or which becomes a New Lender by virtue of execution of an Assignment Agreement shall confirm therein (i) that it is a UK Qualifying Lender and an Irish Qualifying Lender and (ii) for the benefit of the Agent and without liability to any Obligor, whether it is a Treaty Lender with respect to the UK and/or Ireland (and, in respect of Ireland, whether it is a Treaty Lender which is not otherwise an Irish Qualifying Lender), and shall indicate, by giving or not giving a UK Tax Confirmation, whether it is a UK Non-Bank Lender. If a New Lender fails to indicate its status in accordance with this Clause 15.2(C), then such New Lender shall be treated for the purposes of this Agreement (individually by each Obligor) as if it is not a UK Qualifying Lender or an Irish Qualifying Lender, in each case until such time as it notifies the Agent of its status.  Each Lender which confirmed that it was a UK Qualifying Lender and an Irish Qualifying Lender undertakes to notify the Agent and the Parent Company promptly upon becoming aware of it ceasing to be a UK Qualifying Lender or an Irish Qualifying Lender (as applicable) (other than as a result of any change after it became a Lender under this Agreement in (or in the interpretation, administration or application of) any law or Treaty, or any published practice or concession of any relevant Tax authority). If the Agent receives such notification from a Lender, it shall notify the Parent Company and the relevant Obligor. For the avoidance of doubt, a Transfer Certificate, Increase Confirmation or Assignment Agreement shall not be invalidated by any failure of a Lender to comply with this Clause 15.2(C).

(D)If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after

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making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

(E)An Obligor is not required to make an increased payment to a Lender under paragraph (D) above for a Tax Deduction in respect of Tax imposed:

(i)by the United Kingdom from a payment of interest on a Loan if, on the date on which the payment falls due:

(a)the payment could have been made to the relevant Lender without a Tax Deduction if it was a UK Qualifying Lender (other than a Lender that is a UK Qualifying Lender by virtue only of being a Treaty Lender with respect to the United Kingdom), but on that date that Lender is not or has ceased to be a UK Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant Tax authority; or

(b)the relevant Lender is a UK Qualifying Lender solely by virtue of paragraph (a)(iii) of the definition of Qualifying Lender in Clause 15.1(A) and:

(1)an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under Section 931 of the Income Tax Act 2007 which relates to the payment and that Lender has received from the Obligor making the payment or from the Parent Company a certified copy of that Direction; and

(2)the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

(c)the relevant Lender is a UK Qualifying Lender solely by virtue of paragraph (a)(iii) of the definition of Qualifying Lender in Clause 15.1(A) and:

(1)the relevant Lender has not given a UK Tax Confirmation to the Obligor making the payment; and

(2)the payment could have been made to the Lender without any Tax Deduction if the Lender had given a UK Tax Confirmation to the Obligor making the payment, on the basis that the UK Tax Confirmation would have enabled that Obligor to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of Section 930 of the Income Tax Act 2007; or

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(d)the relevant Lender is a UK Qualifying Lender by virtue only of being a Treaty Lender with respect to the United Kingdom and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations, if any, under any of paragraphs (H) to (J) below; or

(ii)by Ireland from a payment of interest on a Loan if, on the date on which the payment falls due:

(a)the payment could have been made to the relevant Lender without a Tax Deduction if it was an Irish Qualifying Lender (other than a Lender that is an Irish Qualifying Lender by virtue only of being a Treaty Lender with respect to Ireland) but on that date that Lender is not or has ceased to be an Irish Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant Tax authority; or

(b)the relevant Lender is a Treaty Lender with respect to Ireland (and not otherwise an Irish Qualifying Lender) and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations, if any, under paragraphs (H) or (K) below.

(F)If an Obligor is required by law to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

(G)Within thirty days of making either a Tax Deduction or any payment to the relevant Tax authority required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant authority.

(H)(i)Subject to sub-paragraph (H)(ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing as soon as reasonably practicable any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

(ii)Nothing in this paragraph (H) shall require a Treaty Lender with respect to the UK (a “UK Treaty Lender”) to:

(a)register under the HMRC DT Treaty Passport Scheme;

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(b)apply the HMRC DT Treaty Passport Scheme to any Loan if it has so registered; or

(c)file Treaty forms if it has made, or is deemed to have made, a notification in accordance with paragraphs (I) or (J) below and either: (1) the UK Borrower making that payment has not complied with its obligations under paragraph (N) below; or (2) the application made by the UK Borrower using form DTTP2 has been unsuccessful, unless in the case of (2) only, the UK Borrower notifies the UK Treaty Lender in writing to that effect, in which case the UK Treaty Lender shall co-operate in completing as soon as reasonably practicable from the date of such written notification any procedural formalities necessary to comply with its obligations under this paragraph (H).

(I)Each Original Lender which is a UK Treaty Lender and which wishes the HMRC DT Treaty Passport Scheme to apply to each Loan made by it to a UK Borrower pursuant to this Agreement shall notify the Agent and the Parent Company, within ten days of the date of this Agreement, that it holds a passport under the HMRC DT Treaty Passport Scheme and that it wishes the HMRC DT Treaty Passport Scheme to apply to each such Loan (and such notification shall include the scheme reference number of that passport and the jurisdiction of Tax residence of the Lender), provided that such Lender can satisfy such notification requirements by including its scheme reference number and jurisdiction of Tax residence opposite its name in Part I, Part II and/or Part III of Schedule 1 (The Original Lenders).

(J)Each New Lender which becomes a Party in accordance with Clause 27 (Changes to the Lenders) and each Increase Lender which becomes a Party in accordance with Clause 2.2 (Increase) that, in each case, is a UK Treaty Lender and which wishes the HMRC DT Treaty Passport Scheme to apply to each Loan made by it to a UK Borrower pursuant to this Agreement or made by another person to a UK Borrower under this Agreement and assigned or otherwise transferred to it shall notify the Agent and the Parent Company within ten days of the date it becomes a Party that it holds a passport under the HMRC DT Treaty Passport Scheme and that it wishes the HMRC DT Treaty Passport Scheme to apply to each such Loan (and such notification shall include the scheme reference number of that passport and the jurisdiction of Tax residence of the Lender) provided that such Lender can satisfy such notification requirements by including its scheme reference number and jurisdiction of Tax residence opposite its name in the Transfer Certificate, Assignment Agreement or Increase Confirmation (as applicable) that it executes on becoming a Party as long as the Parent Company receives that Transfer Certificate, Assignment Agreement or Increase Confirmation within ten days of execution.

(K)A Treaty Lender with respect to Ireland shall, promptly after it becomes a Lender:

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(i)deliver such forms as may be required by the relevant Tax authorities; and

(ii)use all reasonable endeavours to ensure that all procedural formalities are completed, so that the Borrower obtains authorisation to make that payment without a Tax Deduction including, but not limited to, making and filing an appropriate application for relief under the relevant double taxation treaty.

(L)Any Irish Qualifying Lender to which interest may be paid free of withholding tax due to such Lender falling within Section 246(3)(h) of the TCA shall, following a request from the Borrower, confirm its name, address and country of Tax residence to the Borrower to enable it to comply with its reporting obligations under Section 891A of the TCA.

(M)Any Irish Qualifying Lender shall provide to the Borrower and update (or cause to be provided and updated) any correct, complete and accurate information reasonably requested and necessary (in the sole determination of the Borrower) for the Borrower in order to permit the Borrower to comply with its obligation under Section 891E of the TCA and all regulations made pursuant to that section.

(N)Where a UK Treaty Lender makes, or is deemed to make, a notification pursuant to either of paragraph (I) or paragraph (J) above:

(i)each UK Borrower which is a Party as a Borrower as at the date of this Agreement (in the case of a notification pursuant to paragraph (I) above) or as at the relevant Transfer Date or the date on which the increase in the relevant Commitment described in the relevant Increase Confirmation takes effect (in the case of a notification pursuant to paragraph (J)  above) shall file a duly completed form DTTP2 in respect of such UK Treaty Lender with HM Revenue & Customs within 20 days of the Parent Company receiving (or being deemed to receive) the relevant notification and shall promptly provide that UK Treaty Lender with a copy of that filing; and

(ii)each UK Borrower which becomes a Party as a Borrower after the date of this Agreement (in the case of a notification pursuant to paragraph (I) above) or after the relevant Transfer Date or the date on which the increase in the relevant Commitment described in the relevant Increase Confirmation takes effect (in the case of a notification pursuant to paragraph (J) above) shall file a duly completed form DTTP2 in respect of such UK Treaty Lender with HM Revenue & Customs within 30 days of its becoming a Party and shall promptly provide that UK Treaty Lender with a copy of that filing,

and, for the purposes of this paragraph (N), a form DTTP2 which contains erroneous information shall not be regarded as not being “duly completed” to the extent that erroneous information has been provided to the UK Borrower in question by the relevant UK Treaty Lender.

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(O)Where a UK Treaty Lender does not make, and is not deemed to have made, any notification pursuant to either of paragraph (I) or (J) above, no UK Borrower or Additional Borrower which is a UK Borrower shall file any forms relating to the HMRC DT Treaty Passport Scheme in respect of that UK Treaty Lender.

(P)A UK Non-Bank Lender shall promptly notify the Parent Company and the Agent if there is any change in the position from that set out in the UK Tax Confirmation.

15.3Tax indemnity

(A)The Parent Company shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to any loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document or the transactions occurring under such Finance Document.

(B)Paragraph (A) above shall not apply:

(i)with respect to any Tax assessed on a Finance Party:

(a)under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for Tax purposes or as having a permanent establishment for Tax purposes through which it has negotiated or manages or administers its participation in any Facility; or

(b)under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if in either such case that Tax is imposed on or calculated by reference to the net income, profit or gains received or receivable (but not any sum deemed to be received or receivable) by that Finance Party, permanent establishment or Facility Office; or

(ii)to the extent a loss, liability or cost:

(a)is compensated for by an increased payment under Clause 15.2 (Tax gross-up) or a payment under Clause 15.5 (Stamp Taxes) or Clause 15.6 (VAT);

(b)would have been compensated for by an increased payment under Clause 15.2 (Tax gross-up) but was not so compensated for solely because any or all of the exclusions in paragraph (E) of Clause 15.2 (Tax gross-up) applied;

(c)would have been compensated for by a payment under Clause 15.5 (Stamp Taxes) or Clause 15.6 (VAT) but was not so

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compensated for solely because one of the exclusions in those Clauses applied;

(d)relates to any Tax assessed prior to the date which is 365 days prior to the date on which the Protected Party requests such payment from the Parent Company, unless a determination of the amount claimed could be made only on or after the earlier of those dates; or

(e)relates to a FATCA Deduction required to be made by any person.

(C)A Protected Party making, or intending to make, a claim under paragraph (A) above shall promptly notify the Agent of the loss, liability or cost which will give, or has given, rise to the claim, following which the Agent shall reasonably promptly notify the Parent Company.

(D)A Protected Party shall, on receiving a payment from an Obligor under this Clause 15.3, notify the Agent.

15.4Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

(A)a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to the circumstances giving rise to that Tax Payment; and

(B)that Finance Party has obtained, utilised and retained the benefit of that Tax Credit in whole or in part,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines (acting reasonably) will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

15.5Stamp taxes

The Parent Company shall pay and, within five Business Days of demand, indemnify each Finance Party against any cost, loss or liability that that Finance Party incurs in relation to all stamp duty, registration, excise and other similar Taxes payable in respect of any Finance Document or the transaction occurring under any of them other than in respect of an assignment or transfer by a Lender.

15.6VAT

(A)All consideration expressed to be payable under a Finance Document by any Party to a Finance Party shall be deemed to be exclusive of any amounts in respect of VAT. If VAT is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document and such Finance Party is

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required to account to the relevant Tax authority for the VAT, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT against delivery of an appropriate VAT invoice.

(B)If VAT is chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and any other Party (the “Relevant Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

(i)(where the Supplier is the person required to account to the relevant Tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment that the Recipient receives from the relevant Tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

(ii)(where the Recipient is the person required to account to the relevant Tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that the Recipient is not entitled to credit or repayment from the relevant Tax authority in respect of that VAT.

(C)Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that obligation shall be deemed to extend to all amounts in respect of VAT incurred by the Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that the Finance Party is not entitled to credit or repayment of the amount in respect of the VAT from the relevant Tax authority.

(D)Any reference in this Clause 15.6 to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).

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(E)In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

15.7FATCA Information

(A)Subject to paragraph (C) below, each Party shall, within ten Business Days of a reasonable request by another Party:

(i)confirm to that other Party whether it is:

(a)a FATCA Exempt Party; or

(b)not a FATCA Exempt Party;

(ii)supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

(iii)supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

(B)If a Party confirms to another Party pursuant to paragraph (A)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

(C)Paragraph (A) above shall not oblige any Finance Party to do anything, and paragraph (A)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

(i)any law or regulation;

(ii)any fiduciary duty; or

(iii)any duty of confidentiality.

(D)If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (A)(i) or (A)(ii) above (including, for the avoidance of doubt, where paragraph (C) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

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15.8FATCA Deduction

(A)Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

(B)Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, notify the Parent Company, the Agent and the other Finance Parties.

15.9Survival of obligations

Without prejudice to the survival of any other section of this Agreement, the agreements and obligations of each Obligor and each Finance Party contained in this Clause 15 shall survive the payment in full by the Obligors of all obligations under this Agreement and the termination of this Agreement.

16.INCREASED COSTS

16.1Increased Costs

(A)Subject to Clause 16.3 (Exceptions) the Parent Company shall, within five Business Days of a demand by the Agent, pay for the account of a Finance Party an amount equal to the Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the judicial or generally accepted interpretation or the administration or application of) any law or regulation, (ii) compliance with any law or regulation made after the date of this Agreement or (iii) the application of or compliance with Basel III or CRD IV (each as defined in Clause 16.3 (Exceptions) below), provided that the relevant Finance Party confirms to the Agent and the Parent Company that it is seeking to recover Basel III or CRD IV costs to a similar extent from its borrowers generally where the facilities extended to such borrowers include a right for the Finance Party to recover such costs.

(B)In this Agreement “Increased Costs” means:

(i)a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

(ii)an additional or increased cost; or

(iii)a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its

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Commitment or funding or performing its obligations under any Finance Document.

16.2Increased Costs claims

(A)A Finance Party intending to make a claim pursuant to Clause 16.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Parent Company.

(B)Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

16.3Exceptions

(A)Clause 16.1 (Increased Costs) does not apply to the extent any Increased Cost is:

(i)attributable to a Tax Deduction required by law to be made by an Obligor or to a FATCA Deduction required to be made by any person;

(ii)compensated for by Clause 15.3 (Tax indemnity), Clause 15.5 (Stamp Taxes) or Clause 15.6 (VAT) (or would have been compensated for under those clauses but was not so compensated for because any of the exclusions, exceptions or carve-outs to such clauses applied);

(iii)attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;

(iv)incurred more than 180 days before the date on which the Finance Party makes a claim in accordance with Clause 16.2 (Increased Costs claims) or gives notice to the Parent Company (through the Agent) of its intention to do so (and provided that if any such notice is given, the applicable claim must then be made no later than 365 days after the date of such notice), unless a determination of the amount incurred could only be made on or after the latest date described above; or

(v)attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) (“Basel II”) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

(B)In this Clause 16.3:

(i)a reference to a “Tax Deduction” has the same meaning given to the term in Clause 15.1 (Definitions);

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(ii)“Basel III” means:

(a)the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented and restated;

(b)the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement — Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

(c)any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”; and

(iii)“CRD IV” means:

(a)Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

(b)Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.

17.OTHER INDEMNITIES

17.1Currency indemnity

(A)If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

(i)making or filing a claim or proof against that Obligor; or

(ii)obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Obligor shall as an independent obligation, within five Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (i) the rate of exchange used to convert that Sum from the

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First Currency into the Second Currency and (ii) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

(B)Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

17.2Other indemnities

The Parent Company shall (or shall procure that an Obligor will), within five Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

(A)the occurrence of any Event of Default;

(B)a failure by an Obligor to pay any amount due under a Finance Document on its due date, including, without limitation, any cost, loss or liability arising as a result of Clause 31 (Sharing among the Finance Parties);

(C)funding, or making arrangements to fund, its participation in a Loan requested by a Borrower (or the Parent Company on behalf of a Borrower) in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

(D)a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Parent Company.

17.3Acquisition Indemnity

(A)The Parent Company shall (or shall procure that an Obligor will) within five Business Days of demand indemnify each Indemnified Person against any liability, loss, cost or expense (including reasonable legal fees) incurred by or awarded against that Indemnified Person arising out of, in connection with or based on:

(i)the Acquisition (whether or not completed); or

(ii)the use of proceeds of any Loan,

except to the extent such liability, loss, cost or expense (including reasonable legal fees) incurred or awarded against an Indemnified Person results from any breach by that Indemnified Person of a Finance Document or results directly from the fraud, gross negligence or wilful misconduct of that Indemnified Person.

(B)The Parent Company shall (or shall procure that an Obligor will) within five Business Days of demand indemnify each Indemnified Person against any third party cost or expense (including reasonable legal fees) incurred by any Indemnified Person in connection with investigating, preparing, pursuing or

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defending any action, claim, suit, investigation or proceeding arising out of or in connection with, or based on the matters referred to in paragraph (A)(i) or (ii) above, except to the extent such cost or expense (including legal fees) results directly from the fraud, gross negligence or wilful misconduct of that Indemnified Person.

(C)For the purposes of this Clause 17.3, “Indemnified Person” means each Finance Party in its capacity as such, any of its Affiliates and each of its (or its Affiliates’) respective directors, officers, employees and agents.

(D)No Finance Party shall have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made or required to be made under paragraph (A) or (B) above.

(E)The Parent Company agrees that no Indemnified Person shall have any liability to the Company or any of its Affiliates for or in connection with anything referred to in paragraph (A) or (B) above except for any such liability, damages, loss, cost or expense incurred by the Company or any of its Affiliates that results directly from any breach by that Indemnified Person of any Finance Document or from the fraud, gross negligence or wilful misconduct of that Indemnified Person.

17.4Indemnity to the Agent

The Parent Company shall, within five Business Days of demand, indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

(A)investigating any event which it reasonably believes is a Default;

(B)acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

(C)instructing lawyers, accountants, Tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

18.MITIGATION BY THE LENDERS

18.1Mitigation

(A)Each Finance Party shall, in consultation with the Parent Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 15 (Tax gross-up and indemnities) or Clause 16 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

(B)Paragraph (A) above does not in any way limit the obligations of any Obligor under the Finance Documents.

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(C)Each Finance Party shall notify the Agent as soon as reasonably practicable after it becomes aware that any circumstances of the kind described in paragraph (A) above have arisen or may arise. The Agent shall notify the Parent Company promptly of any such notification from a Finance Party.

18.2Limitation of liability

(A)The Parent Company shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 18.1 (Mitigation).

(B)A Finance Party is not obliged to take any steps under Clause 18.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

19.COSTS AND EXPENSES

19.1Transaction expenses

The Parent Company shall promptly on demand pay the Agent and the Arrangers reasonable professional fees and all out of pocket expenses (including legal fees subject to any cap referred to in a Fee Letter but excluding any transfer Taxes in respect of any assignment or transfer by a Lender) properly incurred by any of them in connection with the negotiation, preparation, printing and execution of:

(A)this Agreement and any other documents referred to in this Agreement; and

(B)any other Finance Documents executed after the date of this Agreement.

19.2Amendment costs

If:

(A)an Obligor requests an amendment, waiver or consent; or

(B)an amendment is required pursuant to Clause 32.10 (Change of currency),

the Parent Company shall, within five Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.

19.3Enforcement costs

The Parent Company shall, within five Business Days of demand, pay to each Finance Party the amount of all:

(A)reasonable costs and expenses (including legal fees) incurred by that Finance Party in connection with the preservation; and

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(B)costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement,

of any rights under any Finance Document.

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SECTION 7
GUARANTEE

20.GUARANTEE AND INDEMNITY

20.1Guarantee and indemnity

Each Guarantor irrevocably and unconditionally jointly and severally:

(A)guarantees to each Finance Party punctual performance by each Borrower of all that Borrower’s obligations under the Finance Documents;

(B)undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it were the principal obligor; and

(C)indemnifies each Finance Party immediately on demand against any cost, loss or liability suffered by that Finance Party if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover.

20.2Continuing guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

20.3Reinstatement

If any payment by an Obligor or any discharge given by a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event:

(A)the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and

(B)each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.

20.4Waiver of defences

The obligations of each Guarantor under this Clause 20 (Guarantee and indemnity) will not be affected by an act, omission, matter or thing which, but for this Clause 20.4, would reduce, release or prejudice any of its obligations under this Clause 20 (Guarantee and indemnity) (without limitation and whether or not known to it or any Finance Party) including:

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(A)any time, waiver or consent granted to, or composition with, any Obligor or other person;

(B)the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

(C)the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

(D)any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

(E)any amendment (however fundamental) or replacement of a Finance Document or any other document or security;

(F)any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

(G)any insolvency or similar proceedings.

20.5Immediate recourse

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 20 (Guarantee and indemnity). This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

20.6Appropriations

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

(A)refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

(B)hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 20 (Guarantee and indemnity).

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20.7Deferral of Guarantors’ rights

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents (including under Clause 20.11 (Limitations on guarantee under US law)):

(A)to be indemnified by an Obligor;

(B)to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents; and/or

(C)to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party.

20.8Release of Guarantor’s right of contribution

If any Guarantor (a “Retiring Guarantor”) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:

(A)that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

(B)each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

20.9Additional security

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

20.10Waiver of defences under Jersey law

Each Obligor irrevocably and unconditionally waives such right as it may have or claim under Jersey law:

(A)whether by virtue of the droit de discussion or otherwise to require that recourse be had by any Finance Party to the assets of any other Obligor or any other

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person before any claim is enforced against that Obligor in respect of the obligations assumed by it under any of the Finance Documents;

(B)whether by virtue of the droit de division or otherwise to require that any liability under any of the Finance Documents be divided or apportioned with any other Obligor or any other person or reduced in any manner whatsoever; and

(C)to require that any other Obligor and/or any other person be joined in, or otherwise made a party to, any proceedings brought against it in respect of its obligations under any Finance Document,

and each Obligor irrevocably agrees to be bound by its obligations under the Finance Documents irrespective of whether or not the formalities required by Jersey law relating to the rights or obligations of sureties have been complied with or observed.

20.11Limitations on guarantee under US law

(A)Notwithstanding anything to the contrary contained herein or in any other Finance Document:

(i)each Finance Party agrees that the maximum liability of each Guarantor under this Clause 20 shall in no event exceed an amount equal to the greatest amount that would not render such Guarantor’s obligations hereunder and under the other Finance Documents subject to avoidance under US Bankruptcy Law or to being set aside, avoided or annulled under any Fraudulent Transfer Law, in each case after giving effect to:

(a)all other liabilities of such Guarantor, contingent or otherwise, that are relevant under such Fraudulent Transfer Law (specifically excluding, however, any liabilities of such Guarantor in respect of intercompany indebtedness to any Borrower to the extent that such Financial Indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder); and

(b)the value as assets of such Guarantor (as determined under the applicable provisions of such Fraudulent Transfer Law) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights held by such Guarantor pursuant to:

(1)applicable law; or

(2)any other agreement providing for an equitable allocation among such Guarantor and the borrowers and other Guarantors of obligations arising under this Agreement or other guarantees of such obligations by such parties; and

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(ii)each Party agrees that, in the event any payment or distribution is made on any date by a Guarantor under this Clause 20, each such Guarantor shall (subject to Clause 20.7 (Deferral of Guarantors’ rights) above) be entitled to be indemnified from each other Guarantor in an amount equal to such payment, in each case multiplied by a fraction of which the numerator shall be the net worth of the contributing Guarantor and the denominator shall be the aggregate net worth of all the Guarantors.

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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

21.REPRESENTATIONS

21.1Time of Representations

(A)Subject to paragraph (B) below, each Obligor makes the representations and warranties set out in this Clause 21 to each Finance Party on the date of this Agreement.

(B)The representations given at paragraphs (B) and (C) of Clause 21.11 (No misleading information) below are made on the Information Memorandum Date and on the close of Syndication only.

21.2Status

(A)It is a corporation or a company, as applicable, duly incorporated and validly existing under the law of its jurisdiction of incorporation.

(B)It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

21.3Binding obligations

The obligations expressed to be assumed by it in each Finance Document are, subject to laws or legal procedures affecting the enforceability of creditors’ rights generally and any other reservations set out in the legal opinions listed in Schedule 2 (Conditions precedent) or delivered in connection with an Obligor’s accession to this Agreement, legal, valid, binding and enforceable obligations.

21.4Non-conflict with other obligations

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:

(A)any law or regulation applicable to it;

(B)its or any of its Subsidiaries’ constitutional documents; or

(C)any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets which conflict would reasonably be likely to have a Material Adverse Effect.

21.5Power and authority

It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated for it by those Finance Documents.

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21.6Validity and admissibility in evidence

All Authorisations required:

(A)to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

(B)to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

(other than as disclosed in a legal opinion delivered to the Agent pursuant to Part I of Schedule 2 (Conditions precedent) or in connection with an Obligor’s accession to this Agreement) have been obtained or effected and are in full force and effect.

21.7Governing law and enforcement

(A)The choice of English law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation.

(B)Any judgment obtained in England in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.

21.8Deduction of Tax

It is not required to make any deduction for or on account of:

(A)United Kingdom Tax from any payment it may make under any Finance Document to a Lender so long as the Lender is a UK Qualifying Lender falling within paragraph (a)(i) of the definition of “Qualifying Lender” in Clause 15.1(A) (Definitions);

(B)Irish Tax from any payment it may make under any Finance Document to a Lender so long as the Lender is an Irish Qualifying Lender (provided that where the Irish Qualifying Lender is a Treaty Lender with respect to Ireland all procedural formalities have been completed); and

(C)Jersey Tax from any payment it may make under any Finance Document to a Lender.

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21.9No filing or stamp taxes

Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar Tax be paid in such jurisdiction on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents other than in respect of an assignment or transfer by a Lender.

21.10No default

No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.

21.11No misleading information

Save as disclosed in writing to the Agent and the Arrangers prior to the date of this Agreement or in the case of paragraphs (B) and (C) below, prior to the close of Syndication:

(A)any factual information, including any information which discloses evidence of material litigation which is pending or threatened, provided by or on behalf of any member of the Group to any of the Finance Parties prior to the date of this Agreement in connection with its entry into this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated;

(B)no information has been given or withheld that results in the information referred to in paragraph (A) above being untrue or misleading in any material respect;

(C)any factual information contained in the Information Memorandum provided by or on behalf of any member of the Group was (to the best of the Company’s knowledge and belief, having made reasonable enquiries, in the case of factual information relating to the Target), true and accurate and complete in all material respects as at the date of the Information Memorandum or (as the case may be) as at the date the information is expressed to be given and nothing has occurred or been omitted which would result in the information being inaccurate or misleading in any material respect; and

(D)as of the date of this Agreement, there has been no change in the business or the consolidated financial condition of the Group since the date of its last audited financial statements that would have a Material Adverse Effect.

21.12Financial statements

In the case of the Parent Company only:

(A)Its Original Financial Statements were prepared in accordance with US GAAP consistently applied.

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(B)Its Original Financial Statements fairly represent its financial condition and operations (consolidated) during the relevant financial year.

21.13Pari passu ranking

Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

21.14Anti-corruption law

Its policy is to conduct its businesses in compliance with applicable anti-corruption laws and it has instituted and maintained, and will continue to maintain, policies and procedures reasonably designed to promote compliance with such laws.

21.15Sanctions

Its policy is and will continue to be to conduct its businesses in compliance with applicable sanctions enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council and the European Union or Her Majesty’s Treasury (collectively, “Sanctions”).

21.16ERISA Matters

No Obligor or ERISA Affiliate has during the past five years maintained, contributed to or had an obligation to contribute to any Employee Plan or Multiemployer Plan.

21.17Federal Reserve regulations

No part of the proceeds of any Utilisation will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose which violates the provisions of the regulations of the Federal Reserve Board.

21.18The Parent Company

As a matter of Irish law, the Parent Company is resident for Tax purposes in Ireland on the basis that its place of central management and control is in Ireland.

21.19Repetition

(A)The Repeating Representations are deemed to be made by each Obligor (by reference to the facts and circumstances then existing) on:

(i)the date of each Utilisation Request and the first day of each Interest Period;

(ii)in the case of an Additional Obligor, the day on which such company becomes (or it is proposed that such company becomes) an Additional Obligor; and

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(iii)each Newco Scheme Date.

(B)The representation in Clause 21.14 (Anti-corruption law) is deemed to be made by each Additional Obligor (by reference to the facts and circumstances then existing) on the day on which such company becomes (or it is proposed that such company becomes) an Additional Obligor.

22.INFORMATION UNDERTAKINGS

The undertakings in this Clause 22 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

22.1Financial statements

The Parent Company shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

(A)by the end of the following Business Day after the same becomes publicly available, but in any event within 120 days after the end of each of its financial years, its audited consolidated financial statements for that financial year; and

(B)by the end of the following Business Day after the same becomes publicly available, but in any event within 90 days after the end of the first half of each of its financial years, its unaudited consolidated financial statements for that financial half year.

22.2Compliance Certificate

(A)The Parent Company shall supply to the Agent, with each set of financial statements delivered pursuant to paragraphs (A) and (B) of Clause 22.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 23 (Financial covenants) as at the date as at which those financial statements were drawn up.

(B)Each Compliance Certificate shall be signed by two signatories of the Parent Company authorised pursuant to the resolutions and by reference to specified signatures, in each case as referred to in Schedule 2 (Conditions precedent) and as may be updated from time to time in a manner satisfactory to the Agent (acting reasonably).

22.3Requirements as to financial statements

(A)The Parent Company shall procure that each set of financial statements delivered pursuant to Clause 22.1 (Financial statements) is prepared using US GAAP.

(B)Following the completion of any Newco Scheme, Top Newco shall supply to the Agent, together with its audited consolidated financial statements for the financial year in which the relevant Newco Scheme has completed and required

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to be delivered pursuant to paragraph (A) of Clause 22.1 (Financial statements), a reconciliation between those consolidated financial statements and the consolidated financial statements of the Company or, as applicable, the previously interposed Top Newco relevant to the financial year in which the Newco Scheme has completed.

(C)The Parent Company shall procure that each set of financial statements delivered pursuant to Clause 22.1 (Financial statements) is prepared using US GAAP and accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements:

(i)there has been a change in US GAAP or accounting practices which is relevant to the preparation of that set of financial statements but which does not have any impact upon calculations for the purposes of establishing compliance with Clause 23.2 (Financial condition), and such change has been disclosed in a Form 10K or 10Q statement filed by (or on behalf of) the Parent Company with the SEC; or

(ii)there has been a change in:

(a)US GAAP or accounting practices which has an impact upon calculations for the purposes of establishing compliance with Clause 23.2 (Financial condition); or

(b)financial reference periods; and

the Parent Company notifies the Agent that there has been such change and delivers to the Agent, if and to the extent reasonably necessary for the purposes of establishing compliance with Clause 23.2 (Financial condition) taking into account any disclosure which has been made in any relevant Form 10K or 10Q filed by (or on behalf of) the Parent with the SEC:

(1)a description of any change necessary for those financial statements to reflect the US GAAP, accounting practices and reference periods upon which those Original Financial Statements were prepared; and

(2)sufficient information, in form and substance as may reasonably be required by the Agent, to enable the Lenders to determine whether Clause 23 (Financial covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and those Original Financial Statements.

Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.

(D)If the Parent Company notifies the Agent of a change in accordance with paragraph (C)(ii)(a) above, the Parent Company and Agent shall enter into negotiations in good faith with a view to agreeing:

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(i)whether or not the change might result in any material alteration in the commercial effect of any of the terms of this Agreement; and

(ii)if so, any amendments to this Agreement which may be necessary to ensure that the change does not result in any material alteration in the commercial effect of those terms,

and if any amendments are agreed they shall take effect and be binding on each of the Parties in accordance with their terms.

22.4Information: miscellaneous

The Parent Company shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

(A)all documents dispatched by the Parent Company to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;

(B)copies of any public announcement made by the Parent Company which discloses the details of any material litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group; and

(C)promptly, such further information as any Finance Party (through the Agent) may reasonably request at reasonable times and at reasonable intervals.

22.5Notification of default

Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification regarding such Default has already been provided by another Obligor).

22.6“Know your customer” checks

(A)If:

(i)the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

(ii)any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or

(iii)a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender (which would be permitted under Clause 27 (Changes to the Lenders)) prior to such assignment or transfer,

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obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is within that Obligor’s possession or control reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

(B)Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks required under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

(C)The Parent Company shall, by not less than ten Business Days’ prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 28 (Changes to the Obligors).

(D)Following the giving of any notice pursuant to paragraph (C) above, if the accession of such Additional Obligor obliges the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Parent Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Obligor.

22.7“Know your customer” confirmation

Each Lender confirms as at the date of this Agreement that, under “know your customer” requirements in existence as at the date of this Agreement, it does not require financial statements for Obligors other than the Company.

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23.FINANCIAL COVENANTS

23.1Financial definitions

(A)For the purpose of this Clause 23, amounts computed for the Group shall represent those assets, liabilities, income and expenses contained in the accounting records of the Parent Company and its Subsidiaries.  For the avoidance of doubt, such amounts and the financial covenants shall not include any assets, liabilities, income and expenses recorded in any variable interest entity which the Group consolidates under US GAAP pursuant to Accounting Standards Codification 810, Consolidation (formerly FIN 46(R), Consolidation of Variable Interest Entities - An Interpretation of ARB No. 51, as amended by FAS 167, Amendments to FASB Interpretation No. 46(R)).

(B)In this Clause 23 (Financial covenants):

“Acquisition Costs” means all fees, costs and expenses, stamp, registration and other Taxes incurred by the Parent Company or any other member of the Group in connection with any acquisition following the date of this Agreement.

“Borrowings” means, at any time, any indebtedness in respect of:

(a)the principal amount of moneys borrowed and any net debit balances at banks after application of applicable account pooling arrangements;

(b)the principal amount raised under acceptance credit facilities other than acceptances relating to the purchase or sale of goods in the ordinary course of trading;

(c)the principal amount of any debenture, bond, note, loan stock, commercial paper or other securities;

(d)the capitalised element of indebtedness under finance leases or capital leases entered into primarily as a method of raising finance or financing the acquisition of the asset leased;

(e)receivables sold or discounted other than receivables sold or discounted in the ordinary course of trading or on non-recourse terms;

(f)indebtedness arising from deferred payment agreements except in the ordinary course of trading (and excluding, for the avoidance of doubt, milestone and deferred consideration payments in respect of acquisitions of shares or other assets which are the subject of any acquisition);

(g)any fixed or minimum premium payable on repayment of any debt instrument;

(h)principal amounts raised under any other transaction having the commercial effect of a borrowing; or

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(i)(without double counting) any guarantee, indemnity or similar assurance for any of the items referred to in paragraphs (a) to (h) above.

“Cash” means, at any time:

(a)cash at bank denominated in sterling, dollars, euro or other currency freely convertible into dollars and freely transferable and credited to an account in the name of a member of the Group with a reputable financial institution and to which a member of the Group is alone beneficially entitled and for so long as that cash is repayable on demand, provided that:

(i)repayment of that cash is not contingent on the prior discharge of any other indebtedness of any Group member or of any other person whatsoever or on the satisfaction of any other condition;

(ii)there is no Security over that cash except Security created or constituted pursuant to a Finance Document or Security securing obligations of a member of the Group granted in favour of another member of the Group; and

(iii)such cash is freely and immediately available and convertible into dollars to be applied in repayment or prepayment of the Borrowings; and

(b)to the extent the relevant indebtedness is included in Borrowings, cash collateral provided for such indebtedness up to a maximum amount equal to the principal amount of such indebtedness.

“Cash Equivalent Investments” means:

(a)debt securities denominated in sterling, dollars, euro or other currency freely convertible into dollars issued by, or unconditionally guaranteed by, the United Kingdom or the United States of America which are not convertible into any other form of security and having not more than three months to final maturity;

(b)debt securities denominated in sterling, dollars or euro or other currency freely convertible into dollars which are not convertible into any other form of security, and having not more than three months to final maturity, at all times rated P-1 (Moody’s Investor Services Inc.) or A-1 (Standard & Poor’s Corporation) and which are not issued or guaranteed by any member of the Group;

(c)certificates of deposit denominated in sterling, dollars or euro or other currency freely convertible into dollars issued by, and acceptances by, banking institutions authorised under applicable legislation of the United Kingdom rated P-1 (Moody’s Investor Services Inc.) or A-1 (Standard & Poor’s Corporation); and

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(d)other securities (if any) approved in writing by the Agent,

provided that:

(i)there is no Security over the investments referred to in paragraphs (a) to (d) above except Security created or constituted pursuant to a Finance Document or Security securing obligations of a member of the Group granted in favour of another member of the Group; and

(ii)cash proceeds of the investments referred to in paragraphs (a) to (d) above are freely and immediately available and convertible into dollars to be applied in repayment or prepayment of the Borrowings.

“EBITDA” means, in respect of any Relevant Period, consolidated operating income for such period (after giving effect to the following adjustments, if applicable):

(a)before deducting any corporation tax or other Taxes on income, profits or gains;

(b)before deducting interest payable and before adding interest receivable;

(c)before deducting unusual or non-recurring losses or charges, provided that any accruals or reserves in the ordinary course of business shall be excluded (and, for the avoidance of doubt, up-front milestone and licensing payments which have been charged to the income statement on initial recognition under US GAAP shall constitute unusual or non-recurring losses or charges and accordingly shall not be deducted from EBITDA);

(d)before adding extraordinary gains and non-cash gains;

(e)after deducting the amount of net profit (or adding back the amount of net loss) of any Group company (other than the Parent Company) which is attributable to any third party (other than another Group company) which is a shareholder in that Group company;

(f)after adding back the amount of any loss and after deducting the amount of any gain against book value arising on a disposal of any asset (other than stock disposed of in the ordinary course of trading);

(g)after deducting any income (to the extent not received in cash) and adding back any loss from any associate or joint venture or any other companies in which a Group company has a minority interest;

(h)before deducting any depreciation or amortisation;

(i)before deducting any distributions;

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(j)before deducting any non-cash write-offs of in-process research and development, goodwill, non-cash stock compensation charges, non-cash stock revaluation charges arising on an acquisition and non-cash write-offs of any investments, intellectual property or fixed assets;

(k)before adding or deducting any changes in the fair value of contingent consideration; and

(l)before deducting any Acquisition Costs.

For the purposes of paragraph (A) of Clause 23.2 (Financial condition) only, EBITDA shall be adjusted, at any time, on a pro-forma basis to include businesses or assets acquired in the period and exclude businesses or assets disposed of in the period.

“Liquid Investments” means at any time:

(a)any investment in marketable debt obligations for which a recognised trading market exists and which are not convertible or exchangeable to any other security provided that:

(i)each obligation has a credit rating of either A or A-1 or higher by Standard & Poor’s Corporation (or in each case the equivalent rating including the equivalent money market fund rating by Standard & Poor’s Corporation) or A2 or P-1 or higher by Moody’s Investor Services Inc. (or in each case the equivalent rating including the equivalent money market fund rating by Moody’s Investor Services Inc.) and further provided that no more than 25 per cent. of all such investments shall be rated A and A-1 by Standard & Poor’s Corporation (and in each case the equivalent rating including the equivalent money market fund rating by Standard & Poor’s Corporation) and A2 and P-1 by Moody’s Investor Services Inc. (and in each case the equivalent rating including the equivalent money market fund rating by Moody’s Investor Services Inc.);

(ii)each obligation is beneficially owned by a member of the Group;

(iii)no obligation is issued by or guaranteed by a member of the Group; and

(iv)there is no Security over such obligation save pursuant to the Finance Documents or Security securing obligations of a member of the Group granted in favour of another member of the Group; and

(b)any investment accessible within 30 days in money market funds which have a credit rating of either A-1 or higher by Standard & Poor’s Corporation (or in each case the equivalent rating including the

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equivalent money market fund rating by Standard & Poor’s Corporation) or P-1 or higher by Moody’s Investor Services Inc. (or in each case the equivalent rating including the equivalent money market fund rating by Moody’s Investor Services Inc.) or Rule 2a7 Money Market Funds as defined in the US Investment Company Act 1940 provided that:

(i)such investment is beneficially owned by a member of the Group; and

(ii)there is no Security over such investment save pursuant to the Finance Documents or Security securing obligations of a member of the Group granted in favour of another member of the Group,

provided that the cash proceeds of the investments referred to in paragraphs (a) and (b) above, either through sale or redemption, are freely and immediately available and convertible into dollars to be applied in repayment or prepayment of the Borrowings.

“Net Debt” means, at any time, the aggregate consolidated Borrowings of the Group from sources external to the Group, less all Cash and Cash Equivalent Investments of the Group and the then mark to market value of Liquid Investments.

“Net Interest” means, in respect of any Relevant Period, the sum of (i) the amount of interest and similar charges payable in respect of Borrowings by the Group during such period less (ii) the amount of interest received or receivable and any similar income of the Group during such period excluding any payment or amortisation of front end or one off specific upfront arrangement fees payable under or in connection with this Agreement or any Fee Letter or under any other agreement or fee letter relating to any other Borrowings incurred for the purposes of an acquisition. For the purposes of this definition:

(a)prior to the delivery of a valuation judgment by the relevant court in connection with any “appraisal” or similar proceedings brought by former common stockholders or shareholders of any company acquired by any member of the Group after the date of this Agreement, the amount of interest and similar charges payable by the Group in respect of any potential award in such proceedings shall be deemed to be as recorded in the Group’s financial statements for the Relevant Period; and

(b)following the delivery of a valuation judgment by the relevant court in connection with the proceedings described in paragraph (a) above, and following any revised valuation judgment on appeal from such proceedings, the amount of interest and similar charges payable by the Group in respect of the court’s valuation shall be as determined by the court, but allocated on a pro rata basis from (and including) the calendar month in which the relevant acquisition is consummated to

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(but excluding) the calendar month in which such interest or similar charges are actually paid.

“Relevant Period” means each period of twelve months ending on the last day of the Parent Company’s financial year and each period of twelve months ending on the last day of the first half of the Parent Company’s financial year, with the first such period ending on 31 December 2015.

23.2Financial condition

The Parent Company shall ensure that:

(A)the ratio of Net Debt to EBITDA of the Group in respect of the most recently ended Relevant Period (the “Leverage Ratio”) shall not at any time exceed 3.5:1, except that, following the Acquisition or (except in the case of an In-licensing Acquisition (as defined below)) any other acquisition by the Group for a consideration which includes a cash element of at least US$ 250,000,000, the Parent Company may elect:

(i)in respect of the Relevant Period in which the Acquisition or such other acquisition was completed, to increase the maximum allowable Leverage Ratio to 5.5:1;

(ii)in respect of the first Relevant Period immediately following the Relevant Period referred to in paragraph (i) above, to increase the maximum allowable Leverage Ratio to 5.0:1; and

(iii)in respect of the second Relevant Period immediately following the Relevant Period referred to in paragraph (i) above, to increase the maximum allowable Leverage Ratio to 4.5:1.

The election must be made by no later than the date on which the Compliance Certificate for the first Relevant Period to which that election relates is delivered pursuant to Clause 22.2 (Compliance Certificate) (or the date on which such Compliance Certificate was due to have been delivered if earlier). For the avoidance of doubt, an “acquisition” includes an in-licensing agreement under which the Group acquires certain rights to products and projects (an “In-licensing Acquisition”) which would require the Group to pay licence fees, milestone payments or other similar fees or payments (“In-licensing Fees and Payments”). Notwithstanding the above, where the acquisition is an In-licensing Acquisition the Parent Company may elect to increase the maximum allowable Leverage Ratio as set out above where the aggregate In-licensing Fees and Payments in respect of that In-licensing Acquisition totals at least US$ 250,000,000 in any one Relevant Period. The increase in the maximum allowable Leverage Ratio shall apply to the Relevant Period in which such In-licensing Fees and Payments were paid and the subsequent Relevant Periods as set out above and the election must be made by no later than the date on which the Compliance Certificate for the first Relevant Period to which that election relates is delivered pursuant to Clause 22.2 (Compliance Certificate) (or the date on which such Compliance Certificate was due to have been

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delivered if earlier). Only one election under this paragraph (A) may be made; and

(B)the ratio of EBITDA of the Group to Net Interest in respect of the most recently ended Relevant Period shall not be less than 4.0:1.

23.3Financial testing

(A)The financial covenants set out in Clause 23.2 (Financial condition) shall be tested by reference to each of the financial statements and/or each Compliance Certificate delivered pursuant to Clause 22.2 (Compliance Certificate).

(B)If paragraph (D) of Clause 22.3 (Requirements as to financial statements) applies (and for so long as no amendments to the contrary have been agreed pursuant to paragraph (D) of Clause 22.3 (Requirements as to financial statements)), then the financial covenants set out in Clause 23.2 (Financial condition) shall be tested by reference to the relevant financial statements as adjusted pursuant to paragraph (C) of Clause 22.3 (Requirements as to financial statements) (and/or relevant Compliance Certificate delivered in accordance with Clause 22.2  (Compliance Certificate)) to reflect the basis upon which the Original Financial Statements were prepared and, to the extent relevant, any other information delivered to the Agent in accordance with paragraph (C) of Clause 22.3 (Requirements as to financial statements).

24.GENERAL UNDERTAKINGS

The undertakings in this Clause 24 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

24.1Authorisations

Each Obligor shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability and admissibility in evidence in its jurisdiction of incorporation of any Finance Document subject to any applicable bankruptcy, insolvency, reorganisation, moratorium and other similar laws or legal procedures affecting the enforceability of creditors’ rights generally and any other reservations set out in any of the legal opinions listed in Schedule 2 (Conditions precedent) or delivered in connection with an Obligor’s accession to this Agreement.

24.2Compliance with laws

Each Obligor shall comply in all respects with all laws to which it may be subject, if failure so to comply would have a Material Adverse Effect.

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24.3Negative pledge

(A)No Obligor shall (and the Parent Company shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.

(B)No Obligor shall (and the Parent Company shall ensure that no other member of the Group will):

(i)sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;

(ii)sell, transfer or otherwise dispose of any of its receivables on recourse terms;

(iii)enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

(iv)enter into any other preferential arrangement having a similar effect,

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

(C)Paragraphs (A) and (B) above do not apply to:

(i)any Security (or transaction (“Quasi-Security”) described in paragraph (B) above) created with the prior written consent of the Majority Lenders;

(ii)any Security or Quasi-Security listed in Schedule 9 (Existing Security) except to the extent the principal amount secured by that Security exceeds the amount stated in that Schedule;

(iii)any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting or setting-off debit and credit balances;

(iv)any lien arising by operation of law and in the ordinary course of trading and not as a result of any default or omission by any member of the Group;

(v)any future title retention provisions to which a member of the Group is subject entered into in the ordinary course of trading;

(vi)any netting or set-off arrangement entered into by any member of the Group under any treasury transaction entered into in the ordinary course of business;

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(vii)any Security or Quasi-Security over or affecting any asset acquired by a member of the Group after the date of this Agreement if:

(a)the Security or Quasi-Security was not created in contemplation of the acquisition of that asset by a member of the Group;

(b)the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and

(c)the Security or Quasi-Security is removed or discharged within six months of the date of acquisition of such asset;

(viii)any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security or Quasi-Security is created prior to the date on which that company becomes a member of the Group, if:

(a)the Security or Quasi-Security was not created in contemplation of the acquisition of that company;

(b)the principal amount secured has not increased in contemplation of or since the acquisition of that company; and

(c)the Security or Quasi-Security is removed or discharged within six months of that company becoming a member of the Group;

(ix)any Security entered into pursuant to any Finance Document;

(x)any Security or Quasi-Security created in connection with a Permitted Securitisation;

(xi)any Security or Quasi-Security created or subsisting over cash or Cash Equivalent Investments (determined as if proviso (i) of the definition of “Cash Equivalent Investments” did not apply) deposited in an escrow account or subject to escrow or similar agreements or arrangements in connection with any acquisition of an undertaking or company by a member of the Group after the date of this Agreement provided that such requirements for escrow arrangements are entered into (a) on an arm’s length basis and (b) such that the Security or Quasi-Security is removed or discharged within one month following the discharge in full of the liabilities supported by such accounts, agreements or arrangements;

(xii)any Security or Quasi-Security arising as a consequence of any credit support or collateral provision arrangement (including without limitation initial margining) on arm’s length terms in relation to any derivative transaction which falls within paragraph (B)(viii) of Clause 24.8 (Financial Indebtedness);

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(xiii)any Security or Quasi-Security constituted by any lease or hire purchase contract which falls within the exclusion to paragraph (d) of the definition of Financial Indebtedness;

(xiv)any Security or Quasi-Security on Target Shares constituting Margin Stock, if and to the extent that the value of all Margin Stock of the Parent Company and the other members of the Group exceed 25% of the value of the total assets of the Group subject to Clause 24.3(A) or (B); or

(xv)any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi-Security given by any member of the Group other than any permitted under paragraphs (i) to (xiv) above) does not exceed at any time US$ 350,000,000 (or its equivalent in another currency or currencies).

(D)Paragraphs (A) and (B) above do not apply to any Quasi-Security granted by a member of the Group, or to any Security granted by a member of the Group, in favour of another wholly owned member of the Group but only in respect of liabilities owing to the Group.

24.4Disposals

(A)No Obligor shall (and the Parent Company shall ensure that no other member of the Group will) enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to sell, lease, transfer, dispose by way of de-merger or otherwise dispose of any asset.

(B)Paragraph (A) above does not apply to any sale, lease, transfer or other disposal:

(i)made in the ordinary course of business of the disposing entity;

(ii)of assets in exchange for other assets which are comparable or superior as to value;

(iii)in the form of out-licensing arrangements entered into by a member of the Group in the ordinary course of trading;

(iv)of obsolete assets on normal commercial terms;

(v)of assets by one member of the Group to another member of the Group;

(vi)of cash for any purpose permitted under the Finance Documents;

(vii)of assets held by any member of the Group if such member of the Group has already contracted to dispose of such assets at the time such member of the Group is acquired;

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(viii)made with the prior written consent of the Majority Lenders;

(ix)of cash by the payment of dividends and other distributions in respect of share capital which are not contrary to law;

(x)made in connection with a Permitted Securitisation; or

(xi)at market value and on arm’s length terms,

provided that no sale, lease, transfer or other disposal which would otherwise be permitted pursuant to the terms of any of paragraphs (i) to (v) and (vii) to (xi) (inclusive) above which would be deemed to be a class 1 transaction under the Listing Rules of the Financial Conduct Authority (other than any sale of Margin Stock for fair value as determined by the board of directors of the Parent Company in good faith) shall be permitted without the consent of the Majority Lenders.

For the purpose of this Clause 24.4, “ordinary course of business” means the ordinary course of trading of the relevant entity or made as part of the day to day operation of the relevant entity as carried on at the date hereof or as part of any activities ancillary to the ordinary course of trading.

24.5Change of business

The Parent Company shall procure that no substantial change is made to the general nature of the business of the Group from that carried on at the date of this Agreement.

24.6Insurance

Each Obligor shall (and the Parent Company shall ensure that each member of the Group will) maintain material insurances on and in relation to its business and assets against those risks and to the extent as is usual for companies carrying on the same or substantially similar business (and each member of the Group may maintain insurances with a captive insurer for this purpose).

24.7Loans

(A)No Obligor shall (and the Parent Company shall ensure that no member of the Group will) make any loans or grant any credit.

(B)Paragraph (A) above does not apply to:

(i)loans existing at the date of this Agreement and listed in Schedule 10 (Existing Loans) except to the extent the principal amount of the loans exceeds the amount stated in that Schedule;

(ii)trade credit in the ordinary course of trading;

(iii)loans to directors or employees in the ordinary course of business not exceeding US$ 10,000,000 in aggregate;

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(iv)loans or credit made by one member of the Group to another member of the Group;

(v)loans entered into pursuant to any Finance Documents;

(vi)loans or credit made with the consent of the Majority Lenders; or

(vii)loans or credit the principal amount of which (when aggregated with the principal amount of any other loans given by any member of the Group other than any permitted under paragraphs (i) to (vi) above) does not exceed US$ 350,000,000 (or its equivalent in another currency or currencies).

24.8Financial Indebtedness

(A)No Obligor shall (and the Parent Company shall ensure that no member of the Group will) incur or allow to remain outstanding any Financial Indebtedness.

(B)Paragraph (A) above does not apply to:

(i)any Financial Indebtedness incurred under the Finance Documents;

(ii)any Financial Indebtedness incurred under an Existing Facilities Agreement or any replacement or refinancing thereof (but, in each case, only to the extent that the amount of such Financial Indebtedness does not in aggregate exceed the amount of Financial Indebtedness that could be incurred under an Existing Facilities Agreement on the date of this Agreement);

(iii)any Existing Financial Indebtedness and any refinancing thereof (to the extent the aggregate amount outstanding is not increased as a result of or pursuant to the refinancing);

(iv)any trade credit in the ordinary course of trading;

(v)any Financial Indebtedness to the extent owed by one member of the Group to another member of the Group;

(vi)any Financial Indebtedness incurred by a Guarantor;

(vii)any Financial Indebtedness not otherwise described in this paragraph (B) to the extent it is applied in voluntary prepayment and cancellation of the Facilities pursuant to Clause 7 (Illegality, voluntary prepayment and cancellation);

(viii)any derivative transaction entered into in the ordinary course of treasury operations and not for speculative purposes, and any liability of any member of the Group in relation to any collateral, margin or other form of credit support posted or otherwise provided to or for the benefit of

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any member of the Group under or in relation to any such derivative transaction;

(ix)any Financial Indebtedness incurred with the consent of the Majority Lenders;

(x)any Permitted Securitisation; and

(xi)any other Financial Indebtedness, the principal amount of which (when aggregated with the principal amount of any other Financial Indebtedness incurred by any member of the Group other than any permitted under paragraphs (i) to (x) above) does not, at any time, exceed US$ 350,000,000 (or its equivalent in another currency or currencies).

24.9Top Newco

The Finance Parties hereby consent to the Parent Company entering into any Newco Scheme, provided that each Top Newco interposed by such Newco Scheme accedes as a Guarantor to this Agreement in accordance with Clause 28.4 (Additional Guarantors) by no later than the Newco Scheme Date.

24.10Conduct of the Acquisition

(A)The Company shall ensure that the Acquisition Agreement is not amended, waived or otherwise modified to increase the price per Target Share payable in the Merger or otherwise to increase the consideration payable to the holders of the Target Shares in connection with the transactions contemplated by the Acquisition Agreement in excess of the amount agreed with Deutsche Bank AG, London Branch on or before the date of this Agreement, without the consent of the Agent (acting on the instructions of the Majority Lenders).

(B)Other than as provided by paragraph (A) above, the Company shall ensure that no other amendments, modifications or waivers (including, without limitation, any amendments to, or waivers of, any of the conditions to the consummation of the Merger) are made to the Acquisition Agreement which could reasonably be expected to have a material adverse effect on the Lenders (in their capacity as such) without the prior consent of the Majority Lenders, unless such changes are required by applicable law or regulations.

(C)The Company shall, and shall ensure that each member of the Group will, comply with all laws and regulations applicable in the context of the Merger including, without limitation, the Exchange Act, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and all applicable provisions of the General Corporation Law of the State of Delaware, as replaced or substituted by any other applicable laws or regulations.

(D)The Company shall comply with all obligations under the terms of the Acquisition Agreement save where failure to do so could not reasonably be

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expected to have a material adverse effect on the Lenders (in their capacity as such).

(E)The Company shall keep the Agent reasonably informed as to the status and progress of material developments in relation to the Acquisition.

(F)The Company shall notify the Agent promptly when Acquisition CP Satisfaction occurs.

(G)As soon as reasonably practicable following the first Utilisation Date, the Company shall provide (or cause to be provided) to the Agent evidence that all filings have been made with each applicable governmental authority that are necessary to voluntarily deregister and de-list the Target from the NASDAQ.

24.11Anti-corruption law

No Obligor shall (and the Parent Company shall ensure that no member of the Group will) directly or indirectly use the monies advanced under any Facility or lend, contribute or otherwise make available such monies to any Subsidiary, joint venture partner or other person or entity where the purpose of such monies being made available is to fund any activity that would at the time of such funding, to the knowledge of any Obligor, be in breach of applicable anti-corruption laws and regulations.

24.12Sanctions

No Obligor shall (and the Parent Company shall ensure that no member of the Group will) directly or indirectly use the monies advanced under any Facility or lend, contribute or otherwise make available such monies to any Subsidiary, joint venture partner or other person or entity where the purpose of such monies being made available is to fund any activity that would at the time of such funding, to the knowledge of any Obligor after reasonable inquiry, be in breach of applicable Sanctions.

24.13US Margin Regulations

No part of the proceeds of any Utilisation will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose which violates Regulation U or Regulation X.

25.SANCTIONS

25.1Any Lender may notify the Agent in writing that it is a restricted lender (a “Restricted Lender”), and shall therefore be deemed to be a Restricted Lender for the purposes of this Agreement unless and until it notifies the Agent in writing to the contrary.

25.2The representations and undertakings in Clauses 21.15 (Sanctions) and 24.12 (Sanctions) (the “Sanctions Provisions”) shall only apply for the benefit of a Restricted Lender to the extent that the making of or compliance with such provisions does not result in a violation of or conflict with the Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom,

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Section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung - AWV) in connection with the German Foreign Trade Law (Außenwirtschaftsgesetz - AWG)  and/or any other applicable anti-boycott or similar laws or regulations.

25.3In connection with any amendment, waiver, determination or direction relating to any part of a Sanctions Provision, to the extent that a Restricted Lender so notifies the Agent prior to that amendment, waiver, determination or direction being made or effected, the Commitments of that Restricted Lender will be excluded for the purpose of determining whether the consent of the Majority Lenders has been obtained or whether the determination or direction by the Majority Lenders has been made.

25.4For the avoidance of doubt, this Clause 25 (Sanctions) shall not affect the obligations of the Obligors to, or the rights of, any Lender which is not a Restricted Lender with respect to a Sanctions Provision.

26.EVENTS OF DEFAULT

Each of the events or circumstances set out in this Clause 26 (Events of Default) is an Event of Default (save for Clause 26.13 (Clean-up Period) and Clause 26.14 (Acceleration)).

26.1Non-payment

An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless:

(A)its failure to pay is caused by administrative or technical error; and

(B)payment is made within five Business Days of its due date.

26.2Financial covenants

Any requirement of Clause 23 (Financial covenants) is not satisfied.

26.3Other obligations

(A)An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 26.1 (Non-payment) and Clause 26.2 (Financial covenants)).

(B)No Event of Default under paragraph (A) above will occur if the failure to comply is capable of remedy and is remedied within 20 Business Days of the Agent giving notice to the Parent Company or the Parent Company becoming aware of the failure to comply.

26.4Misrepresentation

Any representation or statement made or deemed to be made by an Obligor in the Finance Documents is or proves to have been incorrect or misleading in any material

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respect when made or deemed to be made and which, if the circumstances giving rise to the misrepresentation or the misrepresentation are capable of remedy, are not remedied within 20 Business Days of the Agent giving notice to the Parent Company or the Parent Company becoming aware of the misrepresentation.

26.5Cross default

(A)Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period.

(B)Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).

(C)Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).

(D)Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group due and payable prior to its specified maturity as a result of an event of default (however described).

(E)No Event of Default will occur under this Clause 26.5 (Cross default) if:

(i)the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (A) to (D) above is less than US$ 50,000,000 (or its equivalent in any other currency or currencies); or

(ii)the Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (A) to (D) above is due or payable to another member of the Group.

26.6Insolvency

(A)A Material Company is unable or admits inability to pay its debts as they fall due or, in the case that a Material Company is a company incorporated in Ireland, is unable or admits inability to pay its debts within the meaning of Section 214 of the Companies Act, 1963 of Ireland (as amended by Section 123 of the Companies Act, 1990) and/or Section 2 of the Companies (Amendment) Act, 1990), suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.

(B)The value of the assets of any Material Company is less than its liabilities (taking into account contingent and prospective liabilities).

(C)A moratorium is declared in respect of any indebtedness of any Material Company.

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26.7Insolvency proceedings

(A)Any corporate action, legal proceedings or other procedure or step is taken in relation to:

(i)the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration, examinership or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Material Company other than a solvent liquidation or reorganisation of any Material Company which is not an Obligor;

(ii)a composition, compromise, assignment or arrangement with any creditor of any Material Company;

(iii)the appointment of a liquidator (other than in respect of a solvent liquidation of a Material Company which is not an Obligor), receiver, administrative receiver, administrator, examiner, compulsory manager, viscount or other similar officer in respect of any Material Company or any of its assets;

(iv)enforcement of any Security over any assets of any Material Company;

(v)a declaration of “en désastre” being made in respect of any assets of any Material Company; or

(vi)the “bankruptcy” of a Material Company within the meaning of the Interpretation (Jersey) Law 1954,

or any analogous procedure or step is taken in any jurisdiction.

(B)Notwithstanding paragraphs (A)(i) to (A)(vi) above, an Event of Default will occur under this Clause 26.7 (Insolvency proceedings) only if, in the case of a petition being presented or an application made for the appointment of a liquidator or administrator or other similar officer, it is not discharged within 21 days.

26.8Creditors’ process

Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of a Material Company which has an aggregate value of not less than US$ 10,000,000.

26.9Ownership of the Obligors

An Obligor (other than the Parent Company) is not or ceases to be a Subsidiary of the Parent Company.

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26.10Unlawfulness

It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents.

26.11Repudiation

An Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document.

26.12Material adverse change

(A)A material adverse change occurs in the business, operations, assets or financial condition of the Group, considered as a whole, which is likely to have a material adverse effect on the ability of the Obligors, taken as a whole, or the Parent Company to meet their respective payment obligations under this Agreement.

(B)For the purpose of a determination in respect of paragraph (A) above, any litigation, arbitration, administrative or regulatory proceedings disclosed in the 10-Q and 10-K statements of the Parent Company most recently filed with the SEC prior to the date of this Agreement will be considered not to have a material adverse effect described under paragraph (A) above, and, for the avoidance of doubt, a product coming off patent or orphan designation in the normal course of its life cycle (including the financial effects thereof) shall not constitute a material adverse change under this Clause 26.12.

26.13Clean-up Period

Notwithstanding any other provision of this Agreement, if, during any period (each, a “Clean-up Period”) of six months from (and including) the date on which a member of the Group becomes the owner of record of the shares or other assets which are the subject of the Acquisition or any other acquisition after the date of this Agreement, any event or circumstance arises or becomes apparent which would otherwise constitute a Default or an Event of Default (other than under Clause 26.1 (Non-payment)) (a “Clean-up Default”), that Clean-up Default will not, during the relevant Clean-up Period:

(A)constitute a Default or an Event of Default (or any other actual or potential breach of any term of this Agreement);

(B)operate to prevent any Utilisation or the making of any Loan; or

(C)allow any Finance Party to accelerate or take any other action contemplated by Clause 26.14 (Acceleration) or to take any enforcement action,

provided that the Clean-up Default:

(i)is capable of remedy within the Clean-up Period and reasonable steps are taken to remedy it;

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(ii)relates to the target company or target undertaking of that acquisition or the Subsidiaries of such target company or target undertaking (it being understood that, for these purposes, any Clean-up Default which arises under Clause 26.5 (Cross default) in connection with any Financial Indebtedness of such target company or target undertaking or the Subsidiaries of such target company or target undertaking shall be deemed to relate to such entities); and

(iii)is not reasonably likely to have a Material Adverse Effect.

26.14Acceleration

(A)On and at any time after the occurrence of an Event of Default which is continuing, the Agent may, and shall if so directed by the Majority Lenders, by notice to the Parent Company:

(i)cancel the Total Commitments whereupon they shall immediately be cancelled;

(ii)declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or

(iii)declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders.

(B)If an Event of Default under Clause 26.7 (Insolvency proceedings) shall occur in respect of any US Obligor as a result of the filing by or against such US Obligor of a petition for relief under any US Bankruptcy Law, then, without notice to such US Obligor or any other act by the Agent or any other person, the Loans to such US Obligor, interest thereon and all other amounts owed by such US Obligor under the Finance Documents shall become immediately due and payable without presentment, demand, protest or notice of any kind, all of which are expressly waived.

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SECTION 9
CHANGES TO PARTIES

27.CHANGES TO THE LENDERS

27.1Assignments and transfers by the Lenders

Subject to this Clause 27, a Lender (the “Existing Lender”) may:

(A)assign any of its rights; or

(B)transfer by novation any of its rights and obligations (provided any such transfer is pro rata to such Existing Lender’s participations in outstanding Loans and Commitments),

only to another bank or financial institution (the “New Lender”).

27.2Conditions of assignment or transfer

(A)A transfer of part of a Commitment or the rights and obligations under this Agreement by an Existing Lender must be in a minimum amount of US$ 10,000,000.

(B)The consent of the Parent Company is required for an assignment or transfer by an Existing Lender, unless:

(i)the assignment or transfer is to another Lender or an Affiliate of a Lender, provided that, in the case of the assignment or transfer of any Available Commitment, such Lender or such Affiliate of a Lender is an Acceptable Bank; or

(ii)at the time of the assignment or transfer, an Event of Default has occurred and is continuing.

(C)(i)Subject to paragraph (B) above, the consent of the Parent Company to an assignment or transfer must not be unreasonably withheld or delayed.  For the avoidance of doubt, it shall not be unreasonable for the Parent Company to withhold its consent in the event the proposed New Lender is not an Acceptable Bank.

(ii)Subject to paragraph (B) above, the Parent Company will be deemed to have given its consent ten Business Days after the Existing Lender has requested it unless consent is expressly refused by the Parent Company within that time.

(D)In the event an Existing Lender enters into an assignment or transfer without the consent of the Parent Company (if required pursuant to paragraph (B) above), such assignment or transfer shall be void and not be valid and effective towards the other Finance Parties and the Obligors.

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(E)An assignment will be effective only on:

(i)receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was an Original Lender;

(ii)performance by the Agent of all “know your customer” or other checks relating to any person that it is required to carry out in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender; and

(iii)entry by the New Lender into a Confidentiality Undertaking with the Parent Company.

(F)A transfer will be effective only if the procedure set out in Clause 27.5 (Procedure for transfer) is complied with and if the New Lender has, prior to the Transfer Date, entered into a Confidentiality Undertaking with the Parent Company.

(G)If:

(i)a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and

(ii)as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment (or increased payment) to the New Lender or Lender acting through its new Facility Office under Clause 15 (Tax gross-up and indemnities) or Clause 16 (Increased Costs),

then the New Lender or Lender acting through its new Facility Office is entitled to receive payment (or increased payment) under those Clauses only to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred, provided that this paragraph (G) shall not apply:

(y)in respect of an assignment or transfer made in the ordinary course of Syndication; or

(z)in relation to a payment which is required under Clause 15.2 (Tax gross-up), to a UK Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of Tax residence in accordance with paragraph (J) of Clause 15.2 (Tax gross-up) if the Obligor making the payment has not submitted a form DTTP2 to HM Revenue & Customs in respect of that UK Treaty Lender, unless the relevant payment falls due before (or less than 10 Business Days after) the Parent Company receives a copy of the Transfer Certificate or Assignment Agreement entered into or Increase Confirmation

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given by that UK Treaty Lender pursuant to Clause 27.7 (Copy of Assignment Agreement, Transfer Certificate or Increase Confirmation to Parent Company).

27.3Assignment or transfer fee

Other than on Syndication, a New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of US$ 3,000.

27.4Limitation of responsibility of Existing Lenders

(A)Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

(i)the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

(ii)the financial condition of any Obligor;

(iii)the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or

(iv)the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

and any representations or warranties implied by law are excluded.

(B)Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

(i)has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

(ii)will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

(C)Nothing in any Finance Document obliges an Existing Lender to:

(i)accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 27 (Changes to the Lenders); or

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(ii)support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.

27.5Procedure for transfer

(A)Subject to the conditions set out in Clause 27.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (C) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (B) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.

(B)The Agent shall be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender only once it is reasonably satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.

(C)Subject to Clause 27.9 (Pro rata interest settlement), on the Transfer Date:

(i)to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the “Discharged Rights and Obligations”);

(ii)each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;

(iii)the Agent, the Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arrangers and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and

(iv)the New Lender shall become a Party as a “Lender”.

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27.6Procedure for assignment

(A)Subject to the conditions set out in Clause 27.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (C) below when the Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (B) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.

(B)The Agent shall be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender only once it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.

(C)Subject to Clause 27.9 (Pro rata interest settlement), on the Transfer Date:

(i)the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement;

(ii)the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the “Relevant Obligations”) and expressed to be the subject of the release in the Assignment Agreement; and

(iii)the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations.

(D)Lenders may utilise procedures other than those set out in this Clause 27.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 27.5 (Procedure for transfer), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in Clause 27.2 (Conditions of assignment or transfer).

27.7Copy of Assignment Agreement, Transfer Certificate, Increase Confirmation to Parent Company

The Agent shall, as soon as reasonably practicable after it has executed an Assignment Agreement, Transfer Certificate or Increase Confirmation, send to the Parent Company (for itself and on behalf of each Obligor) a copy thereof.

27.8Security over Lenders’ rights

In addition to the other rights provided to Lenders under this Clause 27 (Changes to the Lenders), each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create Security in or over (whether by

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way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:

(A)any charge, assignment or other Security to secure obligations to a federal reserve or central bank or any government authority, department or agency, including HM Treasury; and

(B)in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,

except that no such charge, assignment or Security shall:

(i)release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or other Security for the Lender as a party to any of the Finance Documents; or

(ii)require any payments to be made by an Obligor other than or in excess of or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.

27.9Pro rata interest settlement

If the Agent has notified the Lenders and the Parent Company that it is able to distribute interest payments on a pro rata basis to Existing Lenders and New Lenders then in respect of any transfer pursuant to Clause 27.5 (Procedure for transfer) or any assignment pursuant to Clause 27.6 (Procedure for assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):

(A)any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (“Accrued Amounts”) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and

(B)the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:

(i)when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and

(ii)the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 27.9, have been payable to it on that date, but after deduction of the Accrued Amounts.

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28.CHANGES TO THE OBLIGORS

28.1Assignment and transfers by Obligors

No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.

28.2Additional Borrowers

(A)Subject to compliance with the provisions of paragraphs (C) and (D) of Clause 22.6 (“Know your customer” checks), the Parent Company may request that any of its Subsidiaries becomes an Additional Borrower. That Subsidiary shall become an Additional Borrower if:

(i)subject to paragraph (C) below, all the Lenders approve the addition of that Subsidiary (which approval is not to be unreasonably withheld);

(ii)the Parent Company delivers to the Agent a duly completed and executed Accession Letter;

(iii)the Parent Company confirms that no Default is continuing or will occur as a result of that Subsidiary becoming an Additional Borrower; and

(iv)the Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent, acting reasonably.

(B)The Agent shall notify the Parent Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent).

(C)Subject to compliance with the provisions of paragraphs (C) and (D) of Clause 22.6 (“Know your customer” checks) and the fulfilment of the conditions in paragraphs (A)(ii), (iii) and (iv) above, no Lender consent will be required for the accession of an Additional Borrower if that Additional Borrower is incorporated in Ireland and is a direct or indirect wholly-owned Subsidiary of the Parent Company.

28.3Resignation of a Borrower

(A)The Parent Company may request that a Borrower (other than the Parent Company) ceases to be a Borrower by delivering to the Agent a Resignation Letter.

(B)The Agent shall accept a Resignation Letter and notify the Parent Company and the Lenders of its acceptance if:

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(i)no Default is continuing or will result from the acceptance of the Resignation Letter (and the Parent Company has confirmed this is the case); and

(ii)the Borrower is under no actual or contingent obligations as a Borrower under any Finance Documents,

whereupon that company shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents.

(C)Upon becoming an Additional Borrower, that Subsidiary shall make any filings (and provide copies of such filings) as required by, and in accordance with, Clause 15.2 (Tax gross-up).

28.4Additional Guarantors

(A)Subject to compliance with the provisions of paragraphs (C) and (D) of Clause 22.6 (“Know your customer” checks), the Parent Company may request that any of its Subsidiaries or, in the case of any Newco Scheme, the proposed Top Newco, become an Additional Guarantor. That Subsidiary or, as the case may be, Top Newco, shall become an Additional Guarantor if:

(i)the Parent Company delivers to the Agent a duly completed and executed Accession Letter; and

(ii)the Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent) in relation to that Additional Guarantor, each in form and substance reasonably satisfactory to the Agent.

(B)The Agent shall notify the Parent Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it, acting reasonably) all the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent).

28.5Repetition of representations

Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary or, as the case may be, Top Newco, that the Repeating Representations are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.

28.6Resignation of a Guarantor

(A)The Parent Company may request that a Guarantor (other than the Parent Company) ceases to be a Guarantor by delivering to the Agent a Resignation Letter.

(B)The Agent shall accept a Resignation Letter (whereupon that company shall cease to be a Guarantor and shall have no further rights or obligations as a

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Guarantor under the Finance Documents) and notify the Parent Company and the Lenders of its acceptance if:

(i)no Default is continuing or will result from the acceptance of the Resignation Letter (and the Parent Company has confirmed this is the case); and

(ii)all the Lenders have consented to the Parent Company’s request.

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SECTION 10
THE FINANCE PARTIES

29.ROLE OF THE AGENT, THE ARRANGERS AND THE REFERENCE BANKS

29.1Appointment of the Agent

(A)Each of the Arrangers and the Lenders appoints the Agent to act as its agent under and in connection with the Finance Documents.

(B)Each of the Arrangers and the Lenders authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.

29.2Instructions

(A)The Agent shall:

(i)unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:

(a)all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and

(b)in all other cases, the Majority Lenders; and

(ii)not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.

(B)The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.

(C)Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Finance Parties and will be binding on all Finance Parties.

(D)The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in

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advance) for any cost, loss or liability which it may incur in complying with those instructions.

(E)In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.

(F)The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document.

29.3Duties of the Agent

(A)The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.

(B)Subject to paragraph (C) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.

(C)Without prejudice to Clause 27.7 (Copy of Assignment Agreement, Transfer Certificate, Increase Confirmation to Parent Company), paragraph (B) above shall not apply to any Assignment Agreement, Transfer Certificate or Increase Confirmation.

(D)Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

(E)If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.

(F)If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Arrangers) under this Agreement it shall promptly notify the other Finance Parties.

(G)The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others are implied).

29.4Role of the Arrangers

Except as specifically provided in the Finance Documents, the Arrangers have no obligations of any kind to any other Party under or in connection with any Finance Document.

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29.5No fiduciary duties

(A)Nothing in any Finance Document constitutes the Agent or any Arranger as a trustee or fiduciary of any other person.

(B)Neither the Agent nor any Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

29.6Business with the Group

The Agent or any Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

29.7Rights and discretions

(A)The Agent may:

(i)rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; and

(ii)assume that:

(a)any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and

(b)unless it has received notice of revocation, that those instructions have not been revoked; and

(iii)rely on a certificate from any person:

(a)as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or

(b)to the effect that such person approves of any particular dealing, transaction, step, action or thing,

as sufficient evidence that that is the case and, in the case of paragraph (a) above, may assume the truth and accuracy of that certificate.

(B)The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:

(i)no Default has occurred (unless it has actual knowledge of a Default arising under Clause 26.1 (Non-payment));

(ii)any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and

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(iii)any notice or request made by the Parent Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.

(C)The Agent may engage and pay for the advice or services of any lawyers, accountants, Tax advisers, surveyors or other professional advisers or experts.

(D)Without prejudice to the generality of paragraph (C) above or paragraph (E) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary.

(E)The Agent may rely on the advice or services of any lawyers, accountants, Tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.

(F)The Agent may act in relation to the Finance Documents through its officers, employees and agents.

(G)Unless a Finance Document expressly provides otherwise, the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.

(H)Without prejudice to the generality of paragraph (G) above, the Agent may disclose the identity of a Defaulting Lender to the other Finance Parties and the Parent Company and shall disclose the same upon the written request of the Parent Company or the Majority Lenders.

(I)Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor an Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

(J)Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.

29.8Responsibility for documentation

Neither the Agent nor an Arranger is responsible or liable for:

(A)the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, an Arranger, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in

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the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

(B)the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or

(C)any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.

29.9No duty to monitor

The Agent shall not be bound to enquire:

(A)whether or not any Default has occurred;

(B)as to the performance, default or any breach by any Party of its obligations under any Finance Document; or

(C)whether any other event specified in any Finance Document has occurred.

29.10Exclusion of liability

(A)Without limiting paragraph (B) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent), the Agent will not be liable for:

(i)any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct;

(ii)exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document, other than by reason of its gross negligence or wilful misconduct; or

(iii)without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of:

(a)any act, event or circumstance not reasonably within its control; or

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(b)the general risks of investment in, or the holding of assets in, any jurisdiction,

including (in each case and without limitation) such damages, costs,  losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.

(B)No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this paragraph (B) subject to Clause 1.4 (Third party rights) and the provisions of the Third Parties Act.

(C)The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.

(D)Nothing in this Agreement shall oblige the Agent or Arranger to carry out:

(i)any “know your customer” or other checks in relation to any person; or

(ii)any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender,

on behalf of any Lender and each Lender confirms to the Agent and the Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arrangers.

(E)Without prejudice to any provision of any Finance Document excluding or limiting the Agent’s liability, any liability of the Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.

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29.11Lenders’ indemnity to the Agent

Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent’s gross negligence or wilful misconduct) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).

29.12Resignation of the Agent

(A)The Agent may resign and appoint one of its Affiliates acting through an office in the United Kingdom as successor by giving notice to the Lenders and the Parent Company.

(B)Alternatively the Agent may resign by giving notice to the Lenders and the Parent Company, in which case the Majority Lenders (after consultation with the Parent Company) may appoint a successor Agent.

(C)If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (B) above within 30 days after notice of resignation was given, the retiring Agent (after consultation with the Parent Company) may appoint a successor Agent.

(D)The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.

(E)The Agent’s resignation notice shall only take effect upon the appointment of a successor.

(F)Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of Clause 17.4 (Indemnity to the Agent) and this Clause 29 (Role of the Agent, the Arrangers and the Reference Banks). Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

(G)The Agent shall resign in accordance with paragraph (B) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (C) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:

(i)the Agent fails to respond to a request under Clause 15.7 (FATCA information) and the Parent Company or a Lender reasonably believes

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that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

(ii)the information supplied by the Agent pursuant to Clause 15.7 (FATCA information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or

(iii)the Agent notifies the Parent Company and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,

and (in each case) the Parent Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and the Parent Company or that Lender, by notice to the Agent, requires it to resign.

29.13Replacement of the Agent

(A)After consultation with the Parent Company, the Majority Lenders may, by giving 30 days’ notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent (acting through an office in the United Kingdom).

(B)The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as the Agent under the Finance Documents.

(C)The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 29 (Role of the Agent, the Arrangers and the Reference Banks) (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).

(D)Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

29.14Confidentiality

(A)In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.

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(B)If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.

29.15Relationship with the Lenders

(A)Subject to Clause 27.9 (Pro rata interest settlement), and without prejudice to Clause 29.21 (The Register), the Agent may treat the person shown in the Agent’s record (including, for the avoidance of doubt, the Register) as Lender at the opening of business (in the place of the Agent’s principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:

(i)entitled to or liable for any payment due under any Finance Document on that day; and

(ii)entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day.

(B)Without prejudice to Clause 29.21 (The Register), any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 34.6 (Electronic communication)) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 34.2 (Addresses) and/or paragraph (A)(ii) of Clause 34.6 (Electronic communication) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.

29.16Credit appraisal by the Lenders

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Agent and Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:

(A)the financial condition, status and nature of each member of the Group;

(B)the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

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(C)whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and

(D)the adequacy, accuracy or completeness of any information provided by the Agent, any other Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.

29.17Agent’s management time

Any amount payable to the Agent under Clause 17.4 (Indemnity to the Agent), Clause 19 (Costs and expenses) and Clause 29.11 (Lenders’ indemnity to the Agent) shall include the cost of utilising the Agent’s extraordinary management time or other extraordinary resources not contemplated at the date of this Agreement (in connection with any Default, any request for or granting of a waiver or consent, or amendment to a Finance Document or the preservation or enforcement of any right arising under the Finance Documents) and will be calculated on the basis of such reasonable daily or hourly rates as the Agent may notify to the Parent Company and the Lenders, and is in addition to any fee paid or payable to the Agent under Clause 14 (Fees).

29.18Deduction from amounts payable by the Agent

If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.

29.19Role of Reference Banks

(A)No Reference Bank is under any obligation to provide a quotation or any other information to the Agent.

(B)No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.

(C)No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Reference Bank may rely on this Clause 29.19 (Role

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of Reference Banks) subject to Clause 1.4 (Third party rights) and the provisions of the Third Parties Act.

29.20Third party Reference Banks

A Reference Bank which is not a Party may rely on Clause 29.19 (Role of Reference Banks), paragraph (B) of Clause 38.2 (Exceptions) and Clause 40 (Confidentiality of Funding Rates and Reference Bank Quotations) subject to Clause 1.4 (Third party rights) and the provisions of the Third Parties Act.

29.21The Register

The Agent, acting for these purposes solely as an agent of the Borrowers, will maintain (and make available for inspection by the Obligors and the Lenders upon reasonable prior notice at reasonable times) a register for the recordation of, and will record, the names and addresses of the Lenders and the respective amounts of the Commitments and Loans of each Lender from time to time (the “Register”).  The entries in the Register shall be conclusive and binding, absent manifest error, for all purposes and the Obligors, the Agent, the Lenders and each other Finance Party shall treat each person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.

29.22USA Patriot Act

Each Lender that is subject to the requirements of the USA Patriot Act hereby notifies each Obligor that pursuant to the requirements of the USA Patriot Act, such Lender is required to obtain, verify and record information that identifies such Obligor, which information includes the name and address of such Obligor and other information that will allow such Lender to identify such Obligor in accordance with the USA Patriot Act.

30.CONDUCT OF BUSINESS BY THE FINANCE PARTIES

No provision of this Agreement will:

(A)interfere with the right of any Finance Party to arrange its affairs (Tax or otherwise) in whatever manner it thinks fit;

(B)oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

(C)oblige any Finance Party to disclose any information relating to its affairs (Tax or otherwise) or any computations in respect of Tax.

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31.SHARING AMONG THE FINANCE PARTIES

31.1Payments to Finance Parties

If a Finance Party (a “Recovering Finance Party”) receives or recovers any amount from an Obligor other than in accordance with Clause 32 (Payment mechanics) and applies that amount to a payment due under the Finance Documents then:

(A)the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Agent;

(B)the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 32 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

(C)the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 32.6 (Partial payments).

31.2Redistribution of payments

The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) in accordance with Clause 32.6 (Partial payments).

31.3Recovering Finance Party’s rights

(A)On a distribution by the Agent under Clause 31.2 (Redistribution of payments), the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in the redistribution.

(B)If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (A) above, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.

31.4Reversal of redistribution

If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:

(A)each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 31.2 (Redistribution of payments) shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the

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Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and

(B)that Recovering Finance Party’s rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed.

31.5Exceptions

(A)This Clause 31 (Sharing among the Finance Parties) shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.

(B)A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings if:

(i)it notified that other Finance Party of the legal or arbitration proceedings; and

(ii)that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.

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SECTION 11
ADMINISTRATION

32.PAYMENT MECHANICS

32.1Payments to the Agent

(A)On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.

(B)Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London) and with such bank as the Agent specifies.

32.2Distributions by the Agent

Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 32.3 (Distributions to an Obligor), Clause 32.4 (Clawback) and Clause 29.18 (Deduction from amounts payable by the Agent) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days’ notice with a bank in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London).

32.3Distributions to an Obligor

The Agent may (with the consent of the Obligor or in accordance with Clause 33 (Set-off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.

32.4Clawback

(A)Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.

(B)If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on

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that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.

32.5Impaired Agent

(A)If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents (the “Paying Party”) to the Agent in accordance with Clause 32.1 (Payments to the Agent) may instead either pay that amount direct to the required recipient or pay that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the “Recipient Party” or “Recipient Parties”). In each case such payments must be made on the due date for payment under the Finance Documents.

(B)All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Parties pro rata to their respective entitlements.

(C)A Party which has made a payment in accordance with this Clause 32.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.

(D)If a Lender makes a payment into a trust account pursuant to paragraph (A) above to which an Obligor is beneficially entitled, the Lender shall promptly notify the Parent Company.  Promptly upon request by the relevant Obligor, and to the extent that it has been provided with the necessary information by that Obligor, the Lender shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the relevant Obligor.

(E)Promptly upon the appointment of a successor Agent in accordance with Clause 29.13 (Replacement of the Agent), and without prejudice to paragraph (D)  above, each Paying Party shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to the Recipient Parties in accordance with Clause 32.2 (Distributions by the Agent).

32.6Partial payments

(A)If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:

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(i)first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent and each Arranger under the Finance Documents;

(ii)secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;

(iii)thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and

(iv)fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

(B)The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (A)(i) to (A)(iv) above.

(C)Paragraphs (A) and (B) above will override any appropriation made by an Obligor.

32.7No set-off by Obligors

All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

32.8Business Days

(A)Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

(B)During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

32.9Currency of account

(A)Subject to paragraphs (B) to (E) below, US Dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.

(B)A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated on its due date.

(C)Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.

(D)Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

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(E)Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.

32.10Change of currency

(A)Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:

(i)any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Parent Company); and

(ii)any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).

(B)If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Parent Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.

33.SET-OFF

A Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

34.NOTICES

34.1Communications in writing

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.

34.2Addresses

The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:

(A)in the case of the Parent Company, that identified with its name below;

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(B)in the case of each Original Lender, that identified with its name below;

(C)in the case of each other Lender and any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and

(D)in the case of the Agent, the Original Arrangers and SGF, that identified with its name below,

or any substitute address or fax number or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days’ notice.

34.3Delivery

(A)Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will be effective only:

(i)if by way of fax, when received in legible form; or

(ii)if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,

and, if a particular department or officer is specified as part of its address details provided under Clause 34.2 (Addresses), if addressed to that department or officer.

(B)Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent’s signature below (or any substitute department or officer as the Agent shall specify for this purpose).

(C)All notices from or to an Obligor shall be sent through the Agent.

(D)Any communication or document made or delivered to the Parent Company in accordance with this Clause 34 (Notices) will be deemed to have been made or delivered to each of the Obligors.

34.4Notification of address and fax number

Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 34.2 (Addresses) or changing its own address or fax number, the Agent shall notify the other Parties.

34.5Communication when the Agent is an Impaired Agent

If the Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Agent (if and to the extent that the same is required pursuant to the terms of this Agreement), communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance Documents which require

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communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Agent has been appointed unless such replacement Agent becomes an Impaired Agent.

34.6Electronic communication

(A)Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties:

(i)notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and

(ii)notify each other of any change to their address or any other such information supplied by them by not less than five Business Days’ notice.

(B)Any such electronic communication as specified in paragraph (A) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication.

(C)Any such electronic communication as specified in paragraph (A) above made between any two Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose.

(D)Any electronic communication which becomes effective, in accordance with paragraph (C) above, after 5:00 p.m. in the place in which the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.

(E)Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 34.6 (Electronic communication).

34.7Use of websites

(A)The Parent Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the “Website Lenders”) who accept this method of communication by posting this information onto an electronic website designated by the Parent Company and the Agent (the “Designated Website”) if:

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(i)the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

(ii)both the Parent Company and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and

(iii)the information is in a format previously agreed between the Parent Company and the Agent.

If any Lender (a “Paper Form Lender”) does not agree to the delivery of information electronically then the Agent shall notify the Parent Company accordingly and the Parent Company shall at its own cost supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form.  In any event the Parent Company shall at its own cost supply the Agent with at least one copy in paper form of any information required to be provided by it.

(B)The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Parent Company and the Agent.

(C)The Parent Company shall promptly upon becoming aware of its occurrence notify the Agent if:

(i)the Designated Website cannot be accessed due to technical failure;

(ii)the password specifications for the Designated Website change;

(iii)any new information which is required to be provided under this Agreement is posted onto the Designated Website;

(iv)any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

(v)the Parent Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

If the Parent Company notifies the Agent under paragraph (C)(i) or paragraph (C)(v) above, all information to be provided by the Parent Company under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

(D)Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website.  The Parent Company shall at its own cost comply with any such request within 10 Business Days.

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34.8English language

(A)Any notice given under or in connection with any Finance Document must be in English.

(B)All other documents provided under or in connection with any Finance Document must be:

(i)in English; or

(ii)if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.

35.CALCULATIONS AND CERTIFICATES

35.1Accounts

In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.

35.2Certificates and determinations

Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest or proven error, prima facie evidence of the matters to which it relates.

35.3Day count convention

Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Interbank Market differs, in accordance with that market practice.

36.PARTIAL INVALIDITY

If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

37.REMEDIES AND WAIVERS

No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or

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the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

38.AMENDMENTS AND WAIVERS

38.1Required consents

(A)Subject to Clause 38.2 (Exceptions) and Clause 38.5 (Exclusion of Commitments of Defaulting Lender) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.

(B)The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 38 (Amendments and waivers).

38.2Exceptions

(A)An amendment or waiver that has the effect of changing or which relates to:

(i)the definition of “Majority Lenders” in Clause 1.1 (Definitions);

(ii)an extension to the date of payment of any amount under the Finance Documents;

(iii)a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;

(iv)an increase in or an extension of any Commitment;

(v)a change to the Borrowers or Guarantors other than in accordance with Clause 28 (Changes to the Obligors);

(vi)any provision which expressly requires the consent of all the Lenders;

(vii)Clause 2.3 (Finance Parties’ rights and obligations), Clause 8 (Mandatory prepayment), Clause 27 (Changes to the Lenders), Clause 31 (Sharing among the Finance Parties), this Clause 38 (Amendments and waivers), Clause 42 (Governing law) or Clause 43.1 (Jurisdiction); or

(viii)the nature or scope of the guarantee and indemnity granted by the Parent Company (and any Newco, if applicable) under Clause 20 (Guarantee and indemnity),

shall not be made without the prior consent of all the Lenders. This provision is subject to Clause 38.4 (Disenfranchisement of Defaulting Lenders) and Clause 38.5 (Exclusion of Commitments of Defaulting Lender).

(B)An amendment or waiver which relates to the rights or obligations of the Agent or an Arranger or a Reference Bank (each in their capacity as such) may not be

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effected without the consent of the Agent, that Arranger or that Reference Bank, as the case may be.

38.3Replacement of Screen Rate

(A)Subject to paragraph (B) of Clause 38.2 (Exceptions), if any Screen Rate is not available for a currency which can be selected for a Loan, any amendment or waiver which relates to providing for another benchmark rate to apply in relation to that currency in place of that Screen Rate (or which relates to aligning any provision of a Finance Document to the use of that other benchmark rate) may be made with the consent of the Majority Lenders and the Obligors.

(B)If any Lender fails to respond to a request for an amendment or waiver described in paragraph (A) above within 5 Business Days (unless the Parent Company and the Agent agree to a longer time period in relation to any request) of that request being made:

(i)its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and

(ii)its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.

38.4Disenfranchisement of Defaulting Lenders

(A)Subject to paragraph (C) below, for so long as a Defaulting Lender has any Available Commitment, in ascertaining the Majority Lenders or whether any given percentage (including, without limitation, unanimity) of the Total Commitments or whether the approval of all Lenders has been obtained in relation to any request for a consent, waiver, amendment or other vote under the Finance Documents:

(i)that Defaulting Lender’s Commitments will be reduced by the amount of its Available Commitments; and

(ii)that Defaulting Lender will not be treated as a Lender for the purposes of paragraph (A) of Clause 38.2 (Exceptions) if it has no participation in an outstanding Loan.

(B)Subject to paragraph (C) below, for the purposes of this Clause 38.4, the Agent may assume that the following Lenders are Defaulting Lenders:

(i)any Lender which has notified the Agent that it has become a Defaulting Lender;

(ii)any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of “Defaulting Lender” has occurred,

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unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.

(C)For the avoidance of doubt nothing in this Clause 38.4 or otherwise shall relieve, reduce or affect any obligation of a Defaulting Lender under Clauses 7.4 (Right of repayment and cancellation in relation to a single Lender or Defaulting Lender) or Clause 31 (Sharing among the Finance Parties) or any other obligation owed by such Defaulting Lender to a Finance Party and the Commitments, and participations in any Loan, of a Defaulting Lender shall not be reduced or excluded for the purposes of any calculation to that extent.

38.5Exclusion of Commitments of Defaulting Lender

Subject to paragraph (C) of Clause 38.4 (Disenfranchisement of Defaulting Lenders), if any Defaulting Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any of the terms of any Finance Document or other vote of Lenders under this Agreement within five Business Days (or any longer period for response expressly stipulated by the Parent Company in or in relation to the relevant consent, waiver or amendment request ) of that request being made:

(A)its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of the Total Commitments has been obtained to approve that request; and

(B)it will not count as a Lender for the purposes of Clause 38.2 (Exceptions).

38.6Replacement of Defaulting Lender

(A)The Parent Company may, at any time a Lender has become and continues to be a Defaulting Lender, by giving not less than five Business Days’ prior written notice to the Agent and such Lender:

(i)replace such Lender by requiring such Lender to (and to the extent permitted by law such Lender shall) transfer (and, as applicable, procure the transfer of) pursuant to and in accordance with Clause 27 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement;

(ii)require such Lender to (and to the extent permitted by law such Lender shall) transfer (and, as applicable, procure the transfer of) pursuant to Clause 27 (Changes to the Lenders) all (and not part only) of the undrawn Commitment of the Lender; or

(iii)require such Lender to (and to the extent permitted by law such Lender shall) transfer (and, as applicable, procure the transfer of) pursuant to Clause 27 (Changes to the Lenders) all (and not part only) of its rights and obligations in respect of the Facilities,

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to a Lender or other bank, financial institution, trust, fund or other entity (a “Replacement Lender”) selected by the Parent Company, and which confirms its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Lender in accordance with Clause 27 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Utilisations and all accrued interest (to the extent that the Agent has not given a notification under Clause 27.9 (Pro-rata interest settlement) Break Costs and other amounts payable thereto under the Finance Documents, or such other purchase price as may be agreed by the Defaulting Lender with the Replacement Lender and the Parent Company.

(B)Each Lender hereby instructs the Agent to execute on its behalf any Transfer Certificate which is required to give effect to the terms of this Clause 38.6 if that Lender is a Defaulting Lender due to the occurrence of an Insolvency Event.

(C)Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause 38.6 shall be subject to the following conditions:

(i)the Parent Company shall have no right to replace the Agent;

(ii)neither the Agent nor the Defaulting Lender shall have any obligation to the Parent Company to find a Replacement Lender; and

(iii)in no event shall the Defaulting Lender be required to pay or surrender to such Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents.

38.7Replacement of Non-Consenting Lender

(A)If at any time any Lender becomes a Non-Consenting Lender (as defined in paragraph (C) below), then the Parent Company may, on five Business Days prior written notice to the Agent and such Lender:

(i)cancel the Commitment of the Non-Consenting Lender at the next interest payment date; or

(ii)require such Lender to (and such Lender shall) transfer pursuant to Clause 27 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to another Lender (a “Replacement Lender”) which confirms its willingness to assume and does assume all the obligations of the transferring Lender (including the assumption of the transferring Lender’s participations on the same basis as the transferring Lender) in accordance with Clause 27 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Utilisations and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents.

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(B)The replacement of a Lender pursuant to this Clause 38.7 shall be subject to the following conditions:

(i)the Parent Company shall have no right to replace the Agent;

(ii)neither the Agent nor the Lender shall have any obligation to the Parent Company to find a Replacement Lender;

(iii)in the event of a replacement of a Non-Consenting Lender such replacement must take place no later than ten Business Days after the date the Non-Consenting Lender notifies the Parent Company and the Agent of its failure or refusal to agree to any consent, waiver or amendment to the Finance Documents requested by the Parent Company; and

(iv)in no event shall the Lender replaced under this Clause 38.7 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents.

(C)In the event that:

(i)the Parent Company or the Agent (at the request of the Parent Company) has requested the Lenders to consent to a waiver or amendment of any provisions of the Finance Documents;

(ii)the waiver or amendment in question requires the consent of all the Lenders; and

(iii)Lenders whose Commitments aggregate 85 per cent. or more of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 85 per cent. or more of the Total Commitments prior to that reduction) have consented to such waiver or amendment,

then any Lender who has declined or failed to consent or provide approval by the later of (a) the date nominated by the Agent in the request to the Lenders as a deadline for response, and (b) three Business Days after such 85 per cent. Lender approval or consent has been received, shall be deemed a “Non-Consenting Lender”.

38.8No split voting

In relation to any consent or exercise of discretion in connection with any waiver, amendment or otherwise by any Lender under or in connection with a Finance Document, such Lender shall only be entitled to a single vote representing, as the case may be, its Commitment and/or participations in the Loans and shall not be entitled to split such vote.

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39.CONFIDENTIAL INFORMATION

39.1Confidentiality

Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 39.2 (Disclosure of Confidential Information) and Clause 39.3 (Disclosure to numbering service providers), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.

39.2Disclosure of Confidential Information

Any Finance Party may disclose:

(A)to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall reasonably consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (A) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;

(B)to any person:

(i)to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person’s Affiliates, Representatives and professional advisers;

(ii)with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates, Representatives and professional advisers;

(iii)appointed by any Finance Party or by a person to whom paragraph (i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (B) of Clause 29.15 (Relationship with the Lenders));

(iv)who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (i) or (ii) above;

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(v)to whom and to the extent that information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, Tax or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;

(vi)to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 27.8 (Security over Lenders’ rights);

(vii)to whom and to the extent that information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes concerning the Finance Documents;

(viii)who is a Party; or

(ix)with the prior written consent of the Parent Company,

in each case, such Confidential Information as that Finance Party shall reasonably consider appropriate if:

(a)in relation to paragraphs (i), (ii) and (iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;

(b)in relation to paragraph (iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;

(c)in relation to paragraphs (v), (vi) and (vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that in the case of paragraph (v) only there shall be no requirement to so inform if, in the reasonable opinion of that Finance Party, it is not practicable so to do in the circumstances; and

(C)to any person appointed by that Finance Party or by a person to whom paragraph (B)(i) or paragraph (B)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including, without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (C) if the service provider to whom the Confidential

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Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Parent Company and the relevant Finance Party; and

(D)to any rating agency (including its professional advisers), such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents.

39.3Disclosure to numbering service providers

(A)Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facilities and/or one or more Obligors the following information:

(i)names of Obligors;

(ii)country of domicile of Obligors;

(iii)place of incorporation of Obligors;

(iv)date of this Agreement;

(v)the names of the Agent and the Arrangers;

(vi)date of each amendment and restatement of this Agreement;

(vii)amount of Total Commitments;

(viii)currency of the Facilities;

(ix)type of Facilities;

(x)ranking of Facilities;

(xi)Maturity Date for Facilities;

(xii)changes to any of the information previously supplied pursuant to paragraphs (i) to (xi) above; and

(xiii)such other information agreed between such Finance Party and the Parent Company to be disclosable expressly for the purposes of this Clause 39.3,

to enable such numbering service provider to provide its usual syndicated loan numbering identification services.

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(B)The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of the numbering service provider.

(C)The Agent shall notify the Parent Company and the other Finance Parties of:

(i)the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facilities and/or one or more Obligors; and

(ii)the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or one or more Obligors by such numbering service provider.

(D)Each Obligor represents that none of the information set out in paragraphs (A)(i) to (A)(xiii) above is, nor will at any time be, unpublished price sensitive information.

39.4Entire agreement

This Clause 39 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.

39.5Inside information

Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.

39.6Notification of disclosure

Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Parent Company:

(A)in advance of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (B)(v) (except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function) and paragraph (B)(vii), in each case of Clause 39.2 (Disclosure of Confidential Information); and

(B)promptly upon becoming aware that Confidential Information has been disclosed in breach of this Clause 39.

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39.7Continuing obligations

The obligations in this Clause 39 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 24 months from the earlier of:

(A)the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and

(B)the date on which such Finance Party otherwise ceases to be a Finance Party.

40.CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS

40.1Confidentiality and disclosure

(A)The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (B), (C) and (D) below.

(B)The Agent may disclose:

(i)any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the relevant Borrower pursuant to Clause 11.4  (Notification of rates of interest); and

(ii)any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.

(C)The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to:

(i)any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;

(ii)any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental,

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banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;

(iii)any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and

(iv)any person with the consent of the relevant Lender or Reference Bank, as the case may be.

(D)The Agent’s obligations in this Clause 40 (Confidentiality of Funding Rates and Reference Bank Quotations) relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 11.4 (Notification of rates of interest) provided that (other than pursuant to paragraph (B)(i) above) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.

40.2Related obligations

(A)The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.

(B)The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:

(i)of the circumstances of any disclosure made pursuant to paragraph (C)(ii) of Clause 40.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

(ii)upon becoming aware that any information has been disclosed in breach of this Clause 40 (Confidentiality of Funding Rates and Reference Bank Quotations).

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40.3No Event of Default

No Event of Default will occur under Clause 26.3 (Other obligations) by reason only of an Obligor’s failure to comply with this Clause 40 (Confidentiality of Funding Rates and Reference Bank Quotations).

41.COUNTERPARTS

Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.

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SECTION 12
GOVERNING LAW AND ENFORCEMENT

42.GOVERNING LAW

This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.

43.ENFORCEMENT

43.1Jurisdiction

(A)The courts of England have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of or any non-contractual obligation arising out of or in connection with this Agreement) (a “Dispute”).

(B)The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

43.2Service of process

Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):

(A)irrevocably appoints SGF as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and

(B)agrees that failure by an agent for service of process to notify the relevant Obligor of the process will not invalidate the proceedings concerned,

and, by signing this Agreement, SGF hereby accepts such appointment on the terms of this Clause 43.2 (Service of process).

43.3Waiver of jury trial

EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OF THE FINANCE DOCUMENTS.

This Agreement has been entered into on the date stated at the beginning of this Agreement.

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SCHEDULE 1
THE ORIGINAL LENDERS

PART I
THE ORIGINAL FACILITY A LENDERS

Name of Original Lender	Commitment (US$)	Facility Office	Treaty Passport Number(1)	Jurisdiction of Tax Residence(2)	UK Non- Bank Lender?
Morgan Stanley Bank, N.A.	500,000,000	c/o Morgan Stanley Bank International Limited, 25 Cabot Square, Canary Wharf, London E14 4QA, United Kingdom	13/M/307216/DTTP	USA	No
Deutsche Bank AG, Filiale Luxemburg	500,000,000	2, Boulevard Konrad Adenauer, 1115 Luxembourg, Luxembourg	7/D/70006/DTTP	Luxembourg	No

(1)  If applicable.

(2)  If applicable.

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PART II
THE ORIGINAL FACILITY B LENDERS

Name of Original Lender	Commitment (US$)	Facility Office	Treaty Passport Number(3)	Jurisdiction of Tax Residence(4)	UK Non- Bank Lender?
Morgan Stanley Bank, N.A.	1,100,000,000	c/o Morgan Stanley Bank International Limited, 25 Cabot Square, Canary Wharf, London E14 4QA, United Kingdom	13/M/307216/DTTP	USA	No
Deutsche Bank AG, Filiale Luxemburg	1,100,000,000	2, Boulevard Konrad Adenauer, 1115 Luxembourg, Luxembourg	7/D/70006/DTTP	Luxembourg	No

(3)  If applicable.

(4)  If applicable.

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PART III
 THE ORIGINAL FACILITY C LENDERS

Name of Original Lender	Commitment (US$)	Facility Office	Treaty Passport Number(5)	Jurisdiction of Tax Residence(6)	UK Non- Bank Lender?
Morgan Stanley Bank, N.A.	1,200,000,000	c/o Morgan Stanley Bank International Limited, 25 Cabot Square, Canary Wharf, London E14 4QA, United Kingdom	13/M/307216/DTTP	USA	No
Deutsche Bank AG, Filiale Luxemburg	1,200,000,000	2, Boulevard Konrad Adenauer, 1115 Luxembourg, Luxembourg	7/D/70006/DTTP	Luxembourg	No

(5)  If applicable.

(6)  If applicable.

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SCHEDULE 2
CONDITIONS PRECEDENT

PART I(A)
 CONDITIONS PRECEDENT TO INITIAL UTILISATION

1.The Parent Company

(a)A copy of the constitutional documents of the Parent Company.

(b)A copy of a resolution of the board of directors (or a duly appointed committee of the board of directors) of the Parent Company, resolving in writing to delegate all powers, authorities and discretions of the Parent Company in relation to the negotiation and entry into this Agreement and all documents and matters related, ancillary or incidental thereto, to a named delegate, with full powers of sub-delegation, and confirming that signature of any document by such delegate constitutes conclusive evidence of its approval by him.

(c)An extract from a resolution of the board of directors of the Parent Company evidencing due appointment of the committee of the board of directors referred to in paragraph (b) above, if applicable.

(d)A specimen of the signature of each person authorised by the resolutions referred to in paragraph (b) above.

(e)A certificate of the Parent Company (signed by a director or other authorised signatory) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded.

(f)A certificate of an authorised signatory of the Parent Company certifying that each copy document relating to it specified in this Part I(A) of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

2.Legal opinions

(a)A legal opinion of Linklaters LLP, legal advisers to the Arrangers and the Agent in England.

(b)A legal opinion of Ogier, legal advisers to the Arrangers and the Agent in Jersey.

3.Other documents and evidence

(a)Duly executed Fee Letters, Syndication Letter and this Agreement.

(b)Evidence that any agent for service of process referred to in Clause 43.2 (Service of process) has accepted its appointment.

(c)The Original Financial Statements and interim financial statements of the Parent Company.

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(d)Evidence that the fees, costs and expenses then due from the Parent Company pursuant to Clause 14 (Fees) and Clause 19 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.

(e)Any information that is requested by a Finance Party (acting reasonably) to ensure compliance with applicable “know your customer” requirements.

(f)A copy of any other Authorisation or other document, opinion or assurance which the Agent reasonably considers to be necessary or desirable (if it has notified the Parent Company accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.

4.Acquisition information

A certified copy of the duly executed Acquisition Documents (except the Certificate of Merger), including an abridged post-Acquisition group structure chart showing the Company, each Obligor and each holding company of an Obligor and a sources and uses statement in a form and substance satisfactory to the Arrangers, acting reasonably.

146

PART I(B) 
FURTHER CONDITION PRECEDENT TO INITIAL UTILISATION

1.A certificate of an authorised signatory of the Parent Company certifying that:

(a)the Acquisition Agreement has not been amended, waived or otherwise modified to increase the price per Target Share payable in the Merger or otherwise to increase the consideration payable to the holders of the Target Shares in connection with the transactions contemplated by the Acquisition Agreement, other than in accordance with Clause 24.10 (Conduct of the Acquisition);

(b)no other amendments, modifications or waivers (including, without limitation, any amendments to, or waivers of, any of the conditions to the consummation of the Merger) have been made to the Acquisition Agreement, other than in accordance with Clause 24.10 (Conduct of the Acquisition); and

(c)Acquisition CP Satisfaction has occurred.

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PART II
CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL OBLIGOR

1.An Accession Letter, duly executed by the Additional Obligor and the Parent Company.

2.A copy of the constitutional documents of the Additional Obligor.

3.If the Additional Obligor is a US Obligor, (i) a copy of a good standing certificate (including verification of tax status) with respect to the Additional Obligor, issued as of a recent date by the secretary of state or other appropriate official of the Additional Obligor’s jurisdiction of incorporation or organisation and (ii) a solvency certificate signed by an officer of such Additional Obligor in form and substance satisfactory to the Agent and its counsel, acting reasonably.

4.A copy of a resolution of the board of directors (or a duly appointed committee of the board of directors) of the Additional Obligor:

(a)approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter;

(b)authorising a specified person or persons to execute the Accession Letter on its behalf; and

(c)authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including, in relation to an Additional Borrower, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents.

5.A specimen of the signature of each person authorised by the resolution referred to in paragraph 4 above.

6.A certificate of the Additional Obligor (signed by a director or other authorised signatory) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded.

7.A certificate of an authorised signatory of the Additional Obligor certifying that each copy document listed in this Part II of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter.

8.A copy of any other authorisation or other document, opinion or assurance which the Agent reasonably considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity and enforceability of any Finance Document.

9.If available, the latest audited financial statements of the Additional Obligor.

10.A legal opinion of Linklaters LLP, legal advisers to the Arrangers and the Agent in England.

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11.If the Additional Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Arrangers and the Agent or the Parent Company, as the case may be, in the jurisdiction in which the Additional Obligor is incorporated.

12.If the proposed Additional Obligor is incorporated in a jurisdiction other than England and Wales, evidence that the agent for service of process specified in Clause 43.2 (Service of process), if not an Obligor, has accepted its appointment in relation to the proposed Additional Obligor.

13.Any information that is requested by a Finance Party (acting reasonably) to ensure compliance with applicable “know your customer” requirements.

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SCHEDULE 3
REQUESTS

PART I
UTILISATION REQUEST

From:	[Borrower]/[[Parent Company] on behalf of [Borrower] as Borrower]]
To:	[Agent]

Dated:

Dear Sirs

Shire PLC — US$ 5,600,000,000 Term Facilities Agreement
dated [•] 2015 (the “Agreement”)

1.We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.

2.We wish to borrow a Loan on the following terms:

Proposed Utilisation Date:	[                  ] (or, if that is not a Business Day, the next Business Day)
Facility to be utilised:	Facility [A/B/C]
Currency of Loan:	US Dollars
Amount:	[       ] or, if less, the Available Facility
Interest Period	[                  ]

3.We confirm that each condition specified in Clause 4.2 (Further conditions precedent) of the Agreement is satisfied on the date of this Utilisation Request.

4.The proceeds of this Loan should be credited to [account].

5.This Utilisation Request is irrevocable.

6.We confirm that the Loan to which this Utilisation Request relates is to be utilised for the purpose set out in Clause 3.1 (Purpose) of the Agreement.

150

Yours faithfully

	Authorised signatory for
	[Name of relevant Borrower]/
[[Parent Company] on behalf of [Borrower] as Borrower]

151

PART II
SELECTION NOTICE

From:	[Borrower] / [[Parent Company] on behalf of [Borrower] as Borrower]
To:	[Agent] as Agent

Dated:

Dear Sirs

Shire PLC — US$ 5,600,000,000 Term Facilities Agreement
dated [l] 2015 (the “Agreement”)

1.We refer to the Agreement.  This is a Selection Notice.  Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.

2.We refer to the following Loan[s] with an Interest Period ending on [                     ].

3.We request that the next Interest Period for the above Loan[s] is [              ].

4.This Selection Notice is irrevocable.

Yours faithfully

Authorised signatory for

[Name of relevant Borrower]/

[[Parent Company] on behalf of [Borrower] as Borrower]

152

SCHEDULE 4
FORM OF ASSIGNMENT AGREEMENT

To:	[Agent] as Agent
	[Parent Company] as the Parent Company, for and on behalf of each Obligor
From:	[the Existing Lender] (the “Existing Lender”) and [the New Lender] (the “New Lender”)

Dated:

Shire PLC - US$ 5,600,000,000 Term Facilities Agreement dated [l] 2015 (the “Agreement”)

1.We refer to the Agreement.  This is an Assignment Agreement.  Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.

2.We refer to Clause 27.6 (Procedure for assignment).

(a)The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender’s Commitments and participations in Loans under the Agreement as specified in the Schedule.

(b)The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender’s Commitments and participations in Loans under the Agreement specified in the Schedule.

(c)The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.

3.The proposed Transfer Date is [ ].

4.On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.

5.The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 34.2 (Addresses) are set out in the Schedule.

6.The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (C) of Clause 27.4 (Limitation of responsibility of Existing Lenders).

153

7.The New Lender confirms:

(a)that it is a UK Qualifying Lender and an Irish Qualifying Lender; (7) [and]

(b)[for the benefit of the Agent and without liability to any Obligor, that it is a Treaty Lender with respect to [the UK] [and] [Ireland] [and, with respect to Ireland, that it is a Treaty Lender which is not otherwise an Irish Qualifying Lender]].(8)

8.[The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

(a)a company resident in the United Kingdom for United Kingdom Tax purposes;

(b)a partnership each member of which is:

(i)a company so resident in the United Kingdom; or

(ii)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of Section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(c)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of Section 19 of the CTA) of that company.](9)

9.The New Lender confirms that it is not a Defaulting Lender.

10.The New Lender confirms that it is [not](10) an Acceptable Bank.

11.[The New Lender confirms that it is a UK Treaty Lender that holds a passport under the HMRC DT Treaty Passport Scheme (reference number [         ]), so that interest payable

(7)Note that, pursuant to paragraph (C) of Clause 15.2 (Tax gross-up), the New Lender must confirm that it is a UK Qualifying Lender and an Irish Qualifying Lender.

(8)Delete/amend as applicable. Note that, pursuant to paragraph (C) of Clause 15.2 (Tax gross-up), the New Lender must confirm whether or not it is a Treaty Lender with respect to the UK and Ireland (and, in respect of Ireland, whether it is a Treaty Lender which is not otherwise an Irish Qualifying Lender).

(9)Delete/amend as applicable if the New Lender comes within paragraph (a) (iii) of the definition of Qualifying Lender in Clause 15.1 (Definitions).

(10)Include/delete as applicable.

154

to it by a UK Borrower is generally subject to full exemption from UK withholding tax and its jurisdiction of Tax residence is [          ] and notifies the Parent Company that:

(a)each UK Borrower which is a Party as at the Transfer Date must make an application to HM Revenue & Customs under form DTTP2 within 20 days of the Parent Company receiving or being deemed to receive this notification; and

(b)each UK Borrower which becomes a Party after the Transfer Date must make an application to HM Revenue & Customs under form DTTP2 within 30 days of becoming a Party.](11)

12.This Assignment Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 27.7 (Copy of Assignment Agreement, Transfer Certificate, Increase Confirmation to Parent Company), to the Parent Company (on behalf of each Obligor) of the assignment referred to in this Assignment Agreement.

13.The Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.

14.This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.

15.This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.

(11)This confirmation must be included if the New Lender holds a passport under the HMRC DT Treaty Passport Scheme and wishes that scheme to apply to this Agreement.  A copy of the Assignment Agreement must be sent to the Parent Company at the same time as the Agent.

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THE SCHEDULE

Rights to be assigned and obligations to be released and undertaken

[insert relevant details]

[Facility office address, email address, fax number and attention details for notices and account details for payments]

[Existing Lender]	[New Lender]
Branch: [ ]	Branch MEI: [ ]
By:	By:

This Assignment Agreement is accepted by the Agent and the Transfer Date is confirmed as [   ].

Signature of this Assignment Agreement by the Agent constitutes confirmation by the Agent of receipt of notice of the assignment referred to herein, which notice the Agent receives on behalf of each Finance Party.

[Agent]

Agent MEI: [  ]

By:

156

SCHEDULE 5
 FORM OF TRANSFER CERTIFICATE

To:	[Agent] as Agent
	[Parent Company] as the Parent Company, for and on behalf of each Obligor
From:	[The Existing Lender] (the “Existing Lender”) and [The New Lender] (the “New Lender”)

Dated:

Shire PLC — US$ 5,600,000,000 Term Facilities Agreement
dated [l] 2015 (the “Agreement”)

1.We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.

2.We refer to Clause 27.5 (Procedure for transfer) of the Agreement:

(a)The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender’s Commitment, rights and obligations referred to in the Schedule in accordance with Clause 27.5 (Procedure for transfer) of the Agreement.

(b)The proposed Transfer Date is [            ].

(c)The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 34.2 (Addresses) of the Agreement are set out in the Schedule.

3.The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (C) of Clause 27.4 (Limitation of responsibility of Existing Lenders) of the Agreement.

4.The New Lender confirms:

(a)that it is a UK Qualifying Lender and an Irish Qualifying Lender;(12) [and]

(b)[for the benefit of the Agent and without liability to any Obligor, that it is a Treaty Lender with respect to [the UK] [and] [Ireland] [and, with respect to Ireland, that it is a Treaty Lender which is not otherwise an Irish Qualifying Lender]].(13)

(12)  Note that, pursuant to paragraph (C) of Clause 15.2 (Tax gross-up), the New Lender must confirm that it is a UK Qualifying Lender and an Irish Qualifying Lender.

157

5.[The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

(a)a company resident in the United Kingdom for United Kingdom Tax purposes;

(b)a partnership each member of which is:

(i)a company so resident in the United Kingdom; or

(ii)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of Section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(c)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of Section 19 of the CTA) of that company.](14)

6.The New Lender confirms that it is not a Defaulting Lender.

7.The New Lender confirms that it is [not](15) an Acceptable Bank.

8.[The New Lender confirms that it is a UK Treaty Lender that holds a passport under the HMRC DT Treaty Passport Scheme (reference number [         ]), so that interest payable to it by a UK Borrower is generally subject to full exemption from UK withholding tax and its jurisdiction of Tax residence is [          ] and notifies the Parent Company that:

(a)each UK Borrower which is a Party as at the Transfer Date must make an application to HM Revenue & Customs under form DTTP2 within 20 days of the Parent Company receiving or being deemed to receive this notification; and

(b)each UK Borrower which becomes a Party after the Transfer Date must make an application to HM Revenue & Customs under form DTTP2 within 30 days of becoming a Party.](16)

(13)Delete/amend as applicable. Note that, pursuant to paragraph (C) of Clause 15.2 (Tax gross-up), the New Lender must confirm whether or not it is a Treaty Lender with respect to the UK and Ireland (and, in respect of Ireland, whether it is a Treaty Lender which is not otherwise an Irish Qualifying Lender).

(14)Delete/amend as applicable if the New Lender comes within paragraph (a) (iii) of the definition of Qualifying Lender in Clause 15.1 (Definitions).

(15)Include/delete as applicable.

158

9.This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.

10.This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.

(16)This confirmation must be included if the New Lender holds a passport under the HMRC DT Treaty Passport Scheme and wishes that scheme to apply to this Agreement.  A copy of the Transfer Certificate must be sent to the Parent Company at the same time as the Agent.

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THE SCHEDULE

Commitment/rights and obligations to be transferred

[insert relevant details]

[Facility Office address, email address, fax number and attention details for notices and account details for payments]

[Existing Lender]	[New Lender]
Branch: [  ]	Branch: [  ]
Branch MEI: [  ]	Branch MEI: [  ]
By:	By:

This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [           ].

[Agent]

Agent MEI: [  ]

By:

160

SCHEDULE 6
FORM OF ACCESSION LETTER

To:	[Agent] as Agent
From:	[Subsidiary] [Top Newco] and [Parent Company] on behalf of [Subsidiary] [Top Newco] and [Parent Company]]

Dated:

Dear Sirs

Shire PLC — US$ 5,600,000,000 Term Facilities Agreement
dated [l] 2015 (the “Agreement”)

1.We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.

2.[Subsidiary] [Top Newco] agrees to become an Additional [Borrower]/[Guarantor] and to be bound by the Terms of the Agreement as an Additional [Borrower]/[Guarantor] pursuant to Clause [28.2 (Additional Borrowers)]/[Clause 28.4 (Additional Guarantors)] of the Agreement. [Subsidiary] [Top Newco] is a company duly incorporated under the laws of [name of relevant jurisdiction].

3.[Subsidiary’s] [Top Newco’s] administrative details are as follows:

Address:

Fax No:

Attention:

4.This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

[5.This [Guarantor] Accession Letter is entered into by a deed.]

[[Parent Company]	[[Subsidiary]  [Top Newco]
By:]	By:]

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SCHEDULE 7
FORM OF RESIGNATION LETTER

To:	[Agent] as Agent
From:	[resigning Obligor] and [Parent Company] on behalf of [resigning Obligor] and [Parent Company]

Dated:

Dear Sirs

Shire PLC — US$ 5,600,000,000 Term Facilities Agreement
dated [l] 2015 (the “Agreement”)

1.We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Resignation Letter.

2.Pursuant to [Clause 28.3 (Resignation of a Borrower)]/[Clause 28.6 (Resignation of a Guarantor)], we request that [resigning Obligor] be released from its obligations as a [Borrower]/[Guarantor] under the Agreement.

3.We confirm that:

(a)no Default is continuing or will result from the acceptance of this Resignation Letter; and

(b)[                     ].

4.This Resignation Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.

[[Parent Company]	[[resigning Obligor]
By:]	By:]

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SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE

To:	[Agent] as Agent
From:	[Parent Company]

Dated:

Dear Sirs

Shire PLC — US$ 5,600,000,000 Term Facilities Agreement
dated [l] 2015 (the “Agreement”)

1.We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.

2.We confirm that:

[Insert details of financial covenants and whether the Parent Company is in compliance with those covenants]

3.[We confirm that no Default is continuing.]

4.[We confirm that the ratio of Net Debt to EBITDA is [    ]:1, and that therefore the Margin should be [    ] per cent.]

Signed:	Signed:
Authorised signatory	Authorised signatory
of	of
[Parent Company]	[Parent Company]

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SCHEDULE 9
EXISTING SECURITY

Name of member of the Group	Security	Total principal amount of indebtedness secured
Pharma International Insurance Limited	Collateral against letters of credit	US$	5,000,000
NPS Pharmaceuticals, Inc.	Security interest in certain patents and intellectual property	US$	81,350,000

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SCHEDULE 10
EXISTING LOANS

Name of member of the Group	Loan	Total principal amount of Existing Loans
Shire Human Genetic Therapies, Inc	Supplier loan	EUR	7,500,000
Shire Pharmaceutical Holdings Ireland Limited	Supplier loan	EUR	12,000,000

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SCHEDULE 11
EXISTING FINANCIAL INDEBTEDNESS

Name of member of the Group	Financial Indebtedness	Total principal amount of Existing Financial Indebtedness
Pharma International Insurance Limited	Counter indemnity obligations related to bank issued letters of credit	US$	5,000,000
Shire Italy S.p.A.	Counter indemnity obligations related to bank issued guarantees	EUR	12,182,000
Shire Global Finance/Shire Italia S.p.A.	Counter indemnity obligations related to bank issued guarantees	EUR	17,000,000
Shire Human Genetic Therapies, Inc	US property capital lease	US$	7,629,000
Shire ViroPharma Incorporated	US property capital lease	US$	5,255,000
NPS Pharmaceuticals, Inc.	Secured non-recourse debt US$81,350,000	US$	81,350,000

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SCHEDULE 12
FORM OF CONFIDENTIALITY UNDERTAKING

CONFIDENTIALITY AGREEMENT

DATED:

PARTIES:

(1)           [ ] (“Discloser”); and

(2)           [ ] (“Recipient”).

RECITALS:

The Discloser is willing to disclose to the Recipient and the Recipient wishes to receive certain Confidential Information (as defined below) for the Purpose (as defined below) on the terms and conditions set out in this Agreement.

OPERATIVE PROVISIONS:

1.            DEFINITIONS

1.2          In this Agreement:

“Affiliates”	means any company or other entity which directly or indirectly controls, is controlled by or is under common control with a Party, where ‘control’ means the ownership of more than 50 per cent. of the issued share capital or other equity interest or the legal power to direct or cause the direction of the general management and policies of such Party, company or other entity;
“Confidential Information”	means all information, data and any other material relating to Shire’s and its Affiliates’ business, projects or products, being information:
	(i)disclosed by the Discloser or its Representatives to the Recipient or its Representatives or acquired directly or indirectly from the Discloser or its Representatives by the Recipient or its Representatives in each case for the purposes of or in connection with the Purpose and whether in written, electronic, oral, visual or other form;
	(ii)generated by way of any analysis, compilations, data studies or other documents prepared by the Recipient or its Representatives containing, reflecting or based in whole or in part on

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	information referred to in (i) above; and
	(iii)regarding the existence, nature or status of any discussions between the Parties or their Representatives with respect to the Purpose, including the existence and terms of this Agreement;
	Confidential Information shall not include information, data and any other material that:
	(a)is public knowledge at the time of disclosure under this Agreement or which subsequently becomes public knowledge (other than as a result of a breach of this Agreement or other fault on the part of the Recipient or its Representatives); or
	(b)was lawfully in the possession of the Recipient or its Representatives prior to its disclosure under this Agreement or which subsequently comes into its or their possession from a third party (to the best of its or their knowledge having made due enquiry, otherwise than in breach of any obligation of confidentiality owed to the Discloser or its Representatives, either directly or indirectly);
“Party” and “Parties”	means respectively the Discloser or the Recipient or, as the case may be, both such parties;
“Purpose”	means the use of the Confidential Information to allow [the Parties to discuss the possibility of the Recipient acquiring] / [the Recipient to acquire] an interest in a financial facility to Shire;
“Representatives”	means the Affiliates of each Party and the directors, officers, employees, agents, representatives, attorneys and advisors of each Party and each Party’s Affiliates; and
“Shire”	means Shire PLC, a company incorporated in Jersey under the Companies (Jersey) Law 1991 with registered number 99854.

1.2          In this Agreement, unless the context otherwise requires:

(A)references to “persons” includes individuals, bodies corporate (wherever incorporated), unincorporated associations and partnerships;

168

(B)          the headings are inserted for convenience only and do not affect the construction of the Agreement;

(C)          references to one gender includes both genders; and

(D)          a “Party” includes references to that party’s successors and permitted assigns.

2.            USE AND NON-DISCLOSURE

2.1Subject to the terms of this Agreement, in consideration of the disclosure of the Confidential Information by or on behalf of the Discloser to the Recipient or its Representatives, the Recipient undertakes:

(A)not to use the Confidential Information nor allow it to be used by its Representatives for any purpose other than the Purpose and to cease to use it upon request by the Discloser;

(B)to treat and maintain the Confidential Information in strict confidence and not to directly or indirectly communicate or disclose it in any way to any other person without the Discloser’s express prior written consent, except to such of the Recipient’s Representatives who reasonably require access to the Confidential Information for the Purpose and who are notified of the terms of this Agreement and who owe a duty of confidence to the Recipient in respect the Confidential Information;

(C)to assume responsibility and liability for any breach of the terms of this Agreement by any of the Recipient’s Representatives (or actions which would amount to such a breach if the same were party to this Agreement) who have access to the Confidential Information; and

(D)to take all reasonable measures and appropriate safeguards commensurate with those which the Recipient employs for the protection of its confidential information (and to procure that all such steps are taken by its Representatives) to maintain the confidentiality of the Confidential Information, to copy the Confidential Information only to the extent reasonably necessary to achieve the Purpose and not to permit unsupervised copying of the Confidential Information.

2.2No disclosure or announcement to any third party of the Confidential Information may be made by the Recipient or on its behalf except where:

(A)such disclosure is compelled by a court of law, statute, regulation or securities exchange;

(B)the Discloser has, where practicable, been given sufficient written notice in advance to enable it to seek protection or confidential treatment of such Confidential Information; and

(C)such disclosure is limited to the extent actually so required.

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3.            RIGHTS TO CONFIDENTIAL INFORMATION

3.1The Recipient acknowledges that nothing in this Agreement is intended to amount to or implies any transfer, licence or other grant of rights in relation to the Confidential Information or any other patents, design rights, trade marks, copyrights or other intellectual property rights owned or used by the Discloser.

3.2The Discloser and its Representatives give no warranty as to the completeness, sufficiency or accuracy of the Confidential Information and accept no liability howsoever arising from the Recipient’s or its Representatives’ use of the Confidential Information. Accordingly, neither the Discloser nor its Representatives shall be liable for any direct, indirect or consequential loss or damage suffered by any person howsoever arising, whether in contract or tort, as a result of relying on any statement contained in or omitted from the Confidential Information. For the avoidance of doubt, this clause is without prejudice to the express terms of any agreement entered into by the Discloser and/or its Representatives in connection with the Purpose.

3.3Nothing in this Agreement shall be or be construed as being an agreement between the Parties or any of their respective Affiliates to enter into any arrangement or further agreement relating to the subject matter of this Agreement, any such arrangement or agreement being the subject of separate negotiations.

3.4The Recipient acknowledges and agrees that all Confidential Information and all copies thereof shall be and remain the exclusive property of the Discloser. The Recipient shall or shall procure, on the Discloser’s request and at the Discloser’s option, either the destruction or return of the Confidential Information, without retaining any copies, extracts or other reproductions in whole or in part thereof other than to the extent required to be retained for legal or regulatory purposes (in respect of which the Recipient shall remain under an ongoing duty of confidence). On the Discloser’s request, all Confidential Information comprising analyses, compilations, data studies or other documents prepared by the Recipient or its Representatives containing or based in whole or in part on the Confidential Information received from the Discloser or reflecting the Recipient’s view of such Confidential Information shall be destroyed by the Recipient save to the extent required to be retained for legal or regulatory purposes (in respect of which the Recipient shall remain under an ongoing duty of confidence). Upon request, such return and/or destruction shall be certified in writing to the Discloser by an authorised officer of the Recipient supervising such destruction or return.

4.            REMEDIES

Due to the proprietary nature of the Confidential Information, the Parties understand and agree that the Discloser or its Affiliates may suffer irreparable harm in the event that the Recipient fails to comply with any of the obligations contained herein and that monetary damages alone may not be an adequate remedy to compensate the Discloser or its Affiliates for such breach. Accordingly, the Parties agree that the Discloser or any of its Affiliates, as appropriate, shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the obligations contained in this Agreement.

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5.            DURATION

The term of this Agreement shall be for a period of three years from the date of disclosure under this Agreement.

6.            OTHER PROVISIONS

6.1Any variation to this Agreement is only valid if it is in writing and signed by or on behalf of each Party.

6.2This Agreement may not be assigned by a Party without the prior written consent of the other Party.

6.3Any delay or failure by the Discloser in exercising any right, power or privilege under this Agreement shall not constitute a waiver of such right, power or privilege nor shall any single or partial exercise preclude any future exercise.

6.4The rights and remedies of each of the Parties under or pursuant to this Agreement are cumulative, may be exercised as often as such Party considers appropriate and are in addition to its rights and remedies under general law.

6.5The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law.

6.6A person who is not a party to this Agreement other than the Discloser’s Affiliate shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. Notwithstanding the foregoing, this Agreement may be varied or terminated by agreement in writing between the Parties or this Agreement may be rescinded (in each case) without the consent of any such Affiliates.

6.7This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of the Agreement, and all of which, when taken together, shall be deemed to constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.

6.8This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law and subject to the exclusive jurisdiction of the English courts.

171

Signed for and on behalf of [                 ]	)
	)
	)	Signature
		Print Name
		Print Title

172

Signed for and on behalf of [                 ]	)
	)
	)	Signature
		Print Name
		Print Title

173

SCHEDULE 13
TIMETABLES

Delivery of a duly completed Selection Notice (Clause 12.1 (Selection of Interest Periods))	U-2 10.00am
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request))	U-2 10.00am
LIBOR is fixed	Quotation Day as of 11.00am

“U” = date of Utilisation

“U – X” = X Business Days prior to the date of Utilisation                                                                            

174

SCHEDULE 14
FORM OF INCREASE CONFIRMATION

To:[Agent] as Agent

[Parent Company] as Parent Company, for and on behalf of each Obligor

From:[Increase Lender] (the “Increase Lender”)

Dated:

Dear Sirs,

Shire PLC — US$ 5,600,000,000 Term
Facilities Agreement dated [·] 2015 (the “Agreement”)

1.We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation.

2.We refer to Clause 2.2 (Increase).

3.The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the “Relevant Commitment”) as if it was an Original Lender under the Agreement.

4.The proposed date on which the increase in relation to the Increase Lender and the relevant Commitment is to take effect (the “Increase Date”) is [insert date].

5.On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender.

6.The Facility Office and address, fax number and attention details for notices to the Increase Lender for the purposes of Clause 34.2 (Addresses) are set out in the Schedule.

7.The Increase Lender expressly acknowledges the limitations on the Lenders’ obligations referred to in paragraph (E) of Clause 2.2 (Increase).

175

8.The Increase Lender confirms:

(a)that it is a UK Qualifying Lender and an Irish Qualifying Lender;(17) [and]

(b)[for the benefit of the Agent and without liability to any Obligor, that it is a Treaty Lender with respect to [the UK] [and] [Ireland] [and, with respect to Ireland, that it is a Treaty Lender which is not otherwise an Irish Qualifying Lender]].(18)

9.[The Increase Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

(a)a company resident in the United Kingdom for United Kingdom Tax purposes;

(b)a partnership each member of which is:

(i)a company so resident in the United Kingdom; or

(ii)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of Section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(c)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of Section 19 of the CTA) of that company.](19)

10.The Increase Lender confirms that it is not a Defaulting Lender.

11.The Increase Lender confirms that it is [not](20) an Acceptable Bank.

12.[The Increase Lender confirms that it is a UK Treaty Lender that holds a passport under the HMRC DT Treaty Passport Scheme (reference number [           ]), so that interest payable to it by a UK Borrower is generally subject to full exemption from UK

(17)Note that, pursuant to paragraph (C) of Clause 15.2 (Tax gross-up), the Increase Lender must confirm that it is a UK Qualifying Lender and an Irish Qualifying Lender.

(18)Delete/amend as applicable. Note that pursuant to paragraph (C) of Clause 15.2 (Tax gross-up), the Increase Lender must confirm whether or not it is a Treaty Lender with respect to the UK and Ireland (and, in respect of Ireland, whether it is a Treaty Lender which is not otherwise an Irish Qualifying Lender).

(19)Delete/amend as applicable if the Increase Lender comes within paragraph (a) (iii) of the definition of Qualifying Lender in Clause 15.1 (Definitions).

(20)Include/delete as applicable.

176

withholding tax and its jurisdiction of Tax residence is [  ] and notifies the Parent Company that:

(a)each UK Borrower which is a Party as at the Increase Date must make an application to HM Revenue & Customs under form DTTP2 within 20 days of the Parent Company receiving or being deemed to receive this notification; and

(b)each UK Borrower which becomes a Party after the Increase Date must make an application to HM Revenue & Customs under form DTTP2 within 30 days of becoming a Party.](21)

13.This Increase Confirmation may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Increase Confirmation.

14.This Increase Confirmation and any non contractual obligations arising out of or in connection with it are governed by English law.

15.This Increase Confirmation has been entered into on the date stated at the beginning of this Increase Confirmation.

(21)This confirmation must be included if the Increase Lender holds a passport under the HMRC DT Treaty Passport Scheme and wishes that scheme to apply to this Agreement.  A copy of the Increase Confirmation must be sent to the Parent Company at the same time as the Agent.

177

THE SCHEDULE

Relevant Commitment/rights and obligations to be assumed by the Increase Lender

[Insert relevant details]

[Facility Office address, email address, fax number and attention details for notices and account details for payments]

[Increase Lender]

Branch:[         ]

Branch MEI:[         ]

By:

This Increase Confirmation is accepted as an Increase Confirmation for the purposes of the Agreement by the Agent and the Increase Date is confirmed as [                   ].

[Agent]

Agent MEI:[         ]

By:

178

SIGNATURES

The Parent Company

SHIRE PLC

By:	/s/ Flemming Ornskov
Address:	5 Riverwalk
	Citywest Business Campus
	Dublin 24
	Ireland
Contact:	Company Secretary
Facsimile:	+44 (0)1256 894 712

Agent for service of process

SHIRE GLOBAL FINANCE

By:	/s/ Thomas Greene
Address:	Hampshire International Business Park
	Chineham
	Basingstoke
	Hampshire RG24 8EP
Contact:	Company Secretary
Facsimile:	+44 (0)1256 894 712

The Original Guarantor

SHIRE PLC

By:	/s/ Flemming Ornskov
Address:	5 Riverwalk
	Citywest Business Campus
	Dublin 24
	Ireland
Contact:	Company Secretary
Facsimile:	+44 (0)1256 894 712

The Original Borrower

SHIRE PLC

By:	/s/ Flemming Ornskov
Address:	5 Riverwalk
	Citywest Business Campus
	Dublin 24
	Ireland
Contact:	Company Secretary
Facsimile:	+44 (0)1256 894 712

The Original Arrangers

MORGAN STANLEY BANK INTERNATIONAL LIMITED

By:	/s/ Shervin Sharghy
Address:	25 Cabot Square
	Canary Wharf
	London E14 4QW
Contact:	For credit matters:
	GLA Loandocs
	Khuram Khokhar / Chris McCullagh
	gla.loandocs@morganstanley.com
	Tel:      +44 141 245 0143 / 0125
	Fax:     +44 207 056 3377
	For loan servicing:
	Angela Mullaney/ Claire Roberts
	ldnservicing@morganstanley.com
	Tel:      +44 141 245 0138 / 0135
	Fax:     +44 207 056 1947
	Callback verification:  euloancontrol@morganstanley.com

DEUTSCHE BANK AG, LONDON BRANCH

By:	/s/ Simon Derrick
	/s/ Alastair Macdonald
Address:	Winchester House
	1 Great Winchester Street
	London EC2N 2DB
	United Kingdom
Attention:	Loan Origination Team
Contact:	Alastair MacDonald
	alastair.macdonald@db.com
	Fax:    +44 207 545 4735
	David Garcia-Capel
	david.garcia-capel@db.com
	Fax:    +44 207 545 4735

The Agent

DEUTSCHE BANK AG, LONDON BRANCH

By:	/s/ Vikki Adams
	/s/ Leigh Muntz
Address:	Winchester House
	1 Great Winchester Street
	London EC2N 2DB
	United Kingdom
Attention:	ICSS Loan Agency Services
Contact:	For credit matters:
	Vikki Adams
	vikki.adams@db.com
	Tel:    +44 207 547 5855
	Fax:   +44 207 547 6419
	For operational matters:
	Nicole Boelinger
	nicole.boelinger@db.com
	Tel:    +352 421 222 270
	Fax:   +352 421 229 5770

The Original Lenders

MORGAN STANLEY BANK, N.A.

By:	/s/ Subha Lakshmi Ghosh-Kohl
Address:	c/o Morgan Stanley Bank International Limited
	25 Cabot Square
	Canary Wharf
	London E14 4QA
	United Kingdom
Contact:	For credit queries and documentation:
	Khuram Khokhar / Chris McCullagh
	gla.loandocs@morganstanley.com
	Tel:    +44 141 245 0143 / 0125
	Fax:   +44 207 056 3377
	For loan administration:
	Stuart Dunlop / Stephanie Moore
	loanservicing@morganstanley.com
	Tel:    +44 141 245 0123 / 0130
	Fax:   +44 207 056 1947
	Loan related queries:    Ldnservicing@morganstanley.com
	Callback verification:   euloancontrol@morganstanley.com

DEUTSCHE BANK AG, FILIALE LUXEMBURG

By:	/s/ A. Breyer-Simski
	/s/ Johannes Philippi
Address:	2, Boulevard Konrad Adenauer
	1115 Luxembourg
	Luxembourg
Contact:	Anna Plygun / Karlina Belhoste
	anna.plygun@db.com / karlina.belhoste@db.com
	Tel:     +44 207 547 6137
	Fax:   +44 207 545 4735

EX-99.1

Exhibit 99.1

Press Release www.shire.com

SHIRE TO ACQUIRE DYAX CORP, EXPANDING AND EXTENDING INDUSTRY-LEADING HEREDITARY ANGIOEDEMA (HAE) PORTFOLIO

Lead pipeline product, DX-2930, is a Phase 3-ready asset, offering potentially transformative prophylactic therapy for HAE

·DX-2930 has potential to expand HAE-treated patients and achieve annual worldwide sales of up to $2 billion with exclusivity beyond 2030

·DX-2930 is supported by proof-of-concept Phase 1B data, demonstrating a >90% reduction in HAE attacks compared to placebo in the 300mg/400mg arms in patients with > 2 attacks in the 3 months prior to study entry

·Acquisition furthers Shire’s strategy to become a leading global biotech

Dublin, Ireland; and Burlington, Mass. — November 2, 2015 — Shire plc (LSE: SHP, NASDAQ: SHPG) and Dyax Corp. (NASDAQ: DYAX) today announced that Shire will acquire Dyax for $37.30 in cash per Dyax share, for aggregate upfront consideration of approximately $5.9 billion. Dyax shareholders may receive additional value through a non-tradable contingent value right (CVR) that will pay $4.00 in cash per Dyax share upon approval of DX-2930 in HAE, representing a potential additional $646 million in aggregate contingent consideration.

Dyax is a publicly traded, Massachusetts-based biotechnology company primarily focused on the development of plasma kallikrein (pKal) inhibitors for the treatment of HAE, a debilitating and sometimes life-threatening rare genetic disease. Dyax has already successfully developed and commercialized KALBITOR, which is approved for HAE acute treatment in patients 12 years of age and older, and represented an early innovation in HAE treatment.

Dyax’s most advanced clinical program is DX-2930, a Phase 3-ready, fully humanized monoclonal antibody targeting pKal with proof-of-concept Phase 1B efficacy data. This data demonstrate a > 90% reduction in HAE attacks compared to placebo in the 300mg/400mg arms in patients with > 2 attacks in the 3 months prior to study entry.

DX-2930 has received Fast Track, Breakthrough Therapy, and Orphan Drug designations by the FDA and has also received Orphan Drug status in the EU. It is expected to enter Phase 3 clinical trials by year-end 2015. If approved for the prevention of Type 1 and Type 2 HAE, DX-2930 could generate estimated annual global sales of up to $2.0 billion.

Registered in Jersey, No. 99854, 22 Grenville Street, St Helier, Jersey JE4 8PX

Transaction Highlights

DX-2930

·Adds Dyax’s DX-2930, a Phase 3-ready, long-acting injectable monoclonal antibody for HAE prophylaxis, with the potential to lower rates of HAE attacks and significantly improve patient convenience based on clinical trial data reported to date

·Offers patent protection and anticipated regulatory exclusivity beyond 2030

·Adds to Shire’s best-in-class therapies addressing significant unmet patient need

Shire and Dyax Combination

·Combines Dyax’s HAE commercial and research and development expertise with Shire’s HAE leadership and proven ability to advance rare disease assets through development to commercialization

·Provides additional early-stage antibody pipeline programs for the treatment of autoimmune diseases, diabetic macular edema and thrombosis

·Adds Dyax’s well-established proprietary phage display antibody generation technology to Shire’s rare diseases discovery capabilities, as well as partnering revenue associated with Dyax’s Licensing and Funded Research Portfolio (LFRP)

Shire

·Expands and extends Shire’s industry-leading HAE portfolio (FIRAZYR and CINRYZE), advancing its leadership position in rare diseases and enhancing an already robust growth profile

·Brings potential for substantial value creation to Shire’s shareholders, with significant earnings accretion expected assuming FDA approval and anticipated DX-2930 launch in 2018

·Furthers Shire’s transformation to a leading global biotech and world leader in rare diseases

Shire Chief Executive Officer Flemming Ornskov, M.D., commented:

“This highly complementary transaction aligns with and accelerates our strategy to build a global leading biotechnology company focused on rare diseases and specialty conditions. It adds to our portfolio of best-in-class therapies addressing unmet needs in our core therapeutic areas, expanding and extending our leadership position in HAE. We have closely followed DX-2930’s progress in the evolving HAE landscape for some time, and we admire the work of the Dyax team in moving this next-generation therapy forward. Through compelling proof of concept clinical data, this potentially transformative therapy has been shown to be both highly efficacious and convenient, two key product attributes desired by both physicians and patients.”

Dr. Ornskov continued, “DX-2930 is a strategic fit within our HAE domain expertise, and we are well-positioned to advance the development, registration, and commercialization of DX-2930 for the benefit of HAE patients. This transaction also offers other potential upside opportunities, including Dyax’s early-stage pipeline. Following the close of this transaction, we look forward to welcoming Dyax employees, who will bring to Shire substantial clinical and commercial expertise in HAE. Dyax is to be commended for the world class organization they have built focused on HAE.”

“I am also confident that our M&A expertise and the ongoing strength of our business will enable rapid and effective integration following the closing, as demonstrated by the success of our NPS and ViroPharma acquisitions. Even with this transaction, we will continue to have the financial firepower to pursue other value-added strategic acquisitions, including Baxalta.”

2

Dyax President and Chief Executive Officer Gustav A. Christensen said:

“We believe this transaction will deliver substantial value to our shareholders and highlights our shared commitment to bringing innovative medicines to patients who suffer from the devastating effects of HAE. Our approved product, KALBITOR, was an important first step to bringing a range of HAE medicines to patients. Shire’s expertise and proven rare disease patient identification and management capabilities make it the ideal partner to efficiently bring DX-2930 to HAE patients worldwide. I’m proud of the company that our team has built, and I’m confident that Dyax’s important mission and focus on improving the lives of patients will continue as part of the Shire family.”

About HAE

HAE is a rare, debilitating genetic inflammatory condition, which causes episodes of swelling in the face, extremities, and GI tract and can be life threatening. It is estimated that 30-40% of patients afflicted by HAE in the U.S. and EU remain undiagnosed, creating a significant growth opportunity in this area. Further, prophylactic treatment is likely underutilized with roughly 40% of patients only treating their attacks acutely on an as-needed basis.

Information on DX-2930

Through the transaction, Shire will acquire DX-2930, a Phase 3-ready novel long-acting highly potent human monoclonal antibody inhibitor of pKal, which has patent protection and anticipated regulatory exclusivity beyond 2030. Proof of concept was demonstrated in a multi-center, randomized, double-blind, placebo-controlled, multiple ascending dose Phase 1B study in HAE patients, based on patients in 300mg, 400mg and placebo groups, who reported having at least two HAE attacks in the three months prior to study entry. Each patient received two treatments of DX-2930 separated by 14 days. During the pre-specified, primary efficacy interval of six weeks (Day 8 to 50), the HAE attack rate was reduced by over 90% in the DX-2930 combined 300mg and 400mg arms, with 0 attacks in the 300mg group (n=4; p < 0.0001) and 0.045 attacks per week in the 400 mg group (n=11; p =0.005), compared to 0.37 attacks per week in the placebo group (n=11). DX-2930 was well tolerated at all dose levels with no evidence of dose-limiting toxicity up to 400 mg. The most common adverse events were HAE attacks, injection site pain, and headache, which were not appreciably higher in the DX-2930 arms compared with placebo. In the study, a total of 37 patients were randomized to active drug or placebo in a 2:1 ratio across 4 dosing groups of 30, 100, 300, or 400mg. Each patient received two doses of DX-2930 or placebo, separated by 14 days, and was followed for 15 weeks after the second dose.

A post hoc analysis of a subgroup of four patients who participated in the Phase 1B study from the 300mg (1) and 400mg (3) cohorts with severe HAE (9-36 attacks in the prior 3 months) had no breakthrough attacks on DX-2930 during the observation period (Day 8 to 50).

There were no deaths or patient discontinuations due to an adverse event, no serious adverse events in patients treated with DX-2930 and no evidence of dose-limiting toxicity was observed. There was no safety signal in treatment-emergent adverse events, clinical laboratory results, vital signs, or electrocardiograms. Subcutaneous injection was well tolerated.

With a novel mechanism of action, the potential for more convenient dosing in an every other week or once monthly subcutaneous injectable form and the ability to significantly reduce HAE attacks, DX-2930 has the potential to expand the market to patients currently not treated with prophylaxis therapy.

DX-2930 has received Fast Track, Breakthrough Therapy, and Orphan Drug designations by the FDA and received Orphan Drug status in the EU. It is expected to enter Phase 3 clinical trials by year-end 2015.

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Additional Value from Dyax Pipeline and Phage Display Technology

In addition to DX-2930 for HAE, Dyax brings other early-stage, pre-clinical, antibody pipeline programs, including exploration of DX-2930 for diabetic macular edema; DX-2507, an anti-FcRN for the treatment of antibody-mediated autoimmune diseases, and DX-4012, an anti-factor Xlla antibody for thrombosis.

Dyax has a proven track record of bringing products to market through its phage display discovery platform, a patented antibody generation technology used to improve the speed and cost-effectiveness of internal and partner drug discovery, which produced DX-2930. Through the acquisition, Shire will also acquire an extensive LFRP, which includes the approved product CYRAMZA® (ramucirumab), marketed by Eli Lilly & Co. The LFRP includes additional product candidates by licensees in various clinical development stages for which Shire would receive royalties or milestone payments post-approval.

Transaction Details

Under the agreement, Shire has agreed to acquire Dyax for $37.30 per Dyax share, for aggregate upfront cash consideration of $5.9 billion and a non-tradable contingent value right (CVR) that will pay an additional $4.00 in cash per Dyax share upon FDA approval of DX-2930 for the prevention of type 1 and type 2 HAE, if approved prior to December 31, 2019, representing a potential additional $646 million in aggregate contingent consideration.

The proposed transaction is expected to enhance Shire’s long-term top and bottom line growth profile, and is expected to be slightly dilutive to earnings in 2016 and 2017, and accretive in 2018 and beyond, assuming U.S. approval of DX-2930 in 2018.

Related to the transaction, Shire anticipates that it will realize operating synergies of $50 million starting in 2017 and growing to at least $100 million in 2019 and thereafter when comparing to the Street’s consensus forecast of Dyax’s standalone future operating cost base.

Shire’s significant M&A and rare diseases development and commercial expertise is expected to enable rapid and effective integration and deliver operating synergies.

Financing

Shire has secured a $5.6 billion fully underwritten term loan bank facility, which, in addition to the amount undrawn under its $2.1 billion revolving credit facility, is available to finance the transaction. The transaction is not subject to any financing contingency.

Closing

This transaction constitutes a Class 2 transaction for the purposes of the U.K. listing rules and, as such, Shire shareholder approval is not required. The transaction has been unanimously approved by the Boards of Directors of both Shire and Dyax and is expected to close in the first half of 2016. The transaction is subject to approval by Dyax shareholders and customary closing conditions and regulatory approvals.

Deutsche Bank, Evercore and Morgan Stanley are acting as financial advisers to Shire. Centerview Partners is acting as exclusive financial adviser to Dyax. Ropes & Gray, Davis Polk & Wardwell and Slaughter & May are acting as legal advisers to Shire and Sullivan & Cromwell are acting as legal adviser to Dyax.

Deutsche Bank and Morgan Stanley are also providing financing for the transaction.

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Live Conference Call for Investors with CEOs from Shire and Dyax

Shire’s Flemming Ornskov, M.D., Chief Executive Officer; Jeff Poulton, Chief Financial Officer; Mark Enyedy, Head of Corporate Development; and Philp J. Vickers, Ph.D., Head of R&D; and Gustav Christensen, President and CEO of Dyax, will host a conference call for investors and analysts today, November 2, 2015 at 8 a.m., Eastern U.S. Time.

The details of the conference call are as follows:

UK dial in:	0808 237 0030 or 020 3139 4830
US dial in:	1 866 928 7517 or 1 718 873 9077
Password/Conf ID:	21370034#
Live Webcast:	Click here

Replay:

A replay of the presentation will be available for two weeks by phone and by webcast for three months.

UK dial in:	0808 237 0026 or 020 3426 2807
US dial in:	1 866 535 8030
Password/Conf ID:	663943#
Live Webcast:	Click here

For further information please contact:

Shire Investor Relations
Matt Osborne	mattosborne@Shire.com	+1 781 482 9502
Sarah Elton-Farr	seltonfarr@Shire.com	+44 1256 894157
Shire Media Relations
Michele Galen	mgalen@Shire.com	+1 781 482-1867
Gwen Fisher	gfisher@Shire.com	+1 484 595 9836
Dyax Investor Relations and Corporate Communications
Jennifer Robinson	jrobinson@dyax.com	+16172505741

Note to Editors

About Shire

Shire enables people with life-altering conditions to lead better lives.

Our strategy is to focus on developing and marketing innovative specialty medicines to meet significant unmet patient needs.

We focus on providing treatments in Rare Diseases, Neuroscience, Gastrointestinal and Internal Medicine and are developing treatments for symptomatic conditions treated by specialist physicians in other targeted therapeutic areas, such as Ophthalmics.

www.Shire.com

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About Dyax Corp.

Dyax is a biopharmaceutical company focused on the development and commercialization of novel biotherapeutics for unmet medical needs. The Company is developing DX-2930, a fully human monoclonal antibody, for the prevention of HAE attacks. Additionally, Dyax markets KALBITOR® (ecallantide) for the treatment of acute attacks of HAE in patients 12 years of age and older.

Both DX-2930 and KALBITOR were identified using Dyax’s proprietary phage display technology. Dyax has broadly licensed this technology under its Licensing and Funded Research Portfolio (LFRP). The current portfolio includes one FDA approved product, Eli Lilly and Company’s CYRAMZA (ramucirumab), for which Dyax receives royalties, and multiple product candidates in various stages of clinical development for which the Company is eligible to receive future milestones and royalties.

For additional information about Dyax, please visit www.dyax.com.

For additional information about KALBITOR, including full prescribing information, please visit www.KALBITOR.com.

This transaction constitutes a Class 2 transaction for the purposes of the U.K. listing rules, accordingly, the following financial disclosure is provided.  The value of Dyax’s gross assets were $348.9 million with net assets totaling $314.5 million as of September 30, 2015. Dyax’s reported a net loss of $11.9 million for the 12 months ended December 31, 2014.

FORWARD LOOKING STATEMENTS

Statements included herein that are not historical facts, including without limitation statements concerning our proposed acquisition of Dyax and the timing and financial and strategic benefits thereof, the anticipated timing of clinical trials and approval, as well as the commercial potential, for DX-2930 are forward-looking statements. Such forward-looking statements involve a number of risks and uncertainties and are subject to change at any time. In the event such risks or uncertainties materialize, Shire’s results could be materially adversely affected. The risks and uncertainties include, but are not limited to, that:

·Shire’s and Dyax products may not be a commercial success;

·product sales from ADDERALL XR and INTUNIV are subject to generic competition;

·the failure to obtain and maintain reimbursement, or an adequate level of reimbursement, by third-party payers in a timely manner for Shire’s products may affect future revenues, financial condition and results of operations;

·Shire conducts its own manufacturing operations for certain of its products and is reliant on third party contract manufacturers to manufacture other products and to provide goods and services. Some of Shire’s products or ingredients are only available from a single approved source for manufacture. Any disruption to the supply chain for any of Shire’s products may result in Shire being unable to continue marketing or developing a product or may result in Shire being unable to do so on a commercially viable basis for some period of time;

·the manufacture of Shire’s products is subject to extensive oversight by various regulatory agencies. Regulatory approvals or interventions associated with changes to manufacturing sites, ingredients or manufacturing processes could lead to significant delays, an increase in operating costs, lost product sales, an interruption of research activities or the delay of new product launches;

·Shire and Dyax have portfolios of products in various stages of research and development. The successful development of these products, including DX-2930,  is highly uncertain and requires

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significant expenditures and time, and there is no guarantee that these products will receive regulatory approval;

·the actions of certain customers could affect Shire’s ability to sell or market products profitably. Fluctuations in buying or distribution patterns by such customers can adversely affect Shire’s revenues, financial condition or results of operations;

·investigations or enforcement action by regulatory authorities or law enforcement agencies relating to Shire’s activities in the highly regulated markets in which it operates may result in significant legal costs and the payment of substantial compensation or fines;

·adverse outcomes in legal matters and other disputes, including Shire’s ability to enforce and defend patents and other intellectual property rights required for its business, could have a material adverse effect on Shire’s revenues, financial condition or results of operations;

·Shire faces intense competition for highly qualified personnel from other companies and organizations. Shire is undergoing a corporate reorganization and was the subject of an unsuccessful acquisition proposal and the consequent uncertainty could adversely affect Shire’s ability to attract and/or retain the highly skilled personnel needed for Shire to meet its strategic objectives;

·failure to achieve Shire’s strategic objectives with respect to the acquisition of NPS Pharmaceuticals Inc. and Dyax may adversely affect Shire’s financial condition and results of operations;

·Shire’s strategy to acquire Baxalta may not be successful: Baxalta may refuse to cooperate with Shire; if the proposed combination is consummated, the businesses may not be integrated successfully, including that expected synergies and other benefits of the combination may not be realized and unforeseen costs may arise; and disruption caused by the proposed transaction may adversely affect Shire;

·Shire is dependent on information technology and its systems and infrastructure face certain risks, including from service disruptions, the loss of sensitive or confidential information, cyber-attacks and other security breaches or data leakages that could have a material adverse effect on Shire’s revenues, financial condition or results of operations;

·Shire’s proposed acquisition of Dyax may not be consummated due to the occurrence of an event, change or other circumstances that gives rise to the termination of the merger agreement;

·A governmental or regulatory approval required for the proposed acquisition of Dyax may not be obtained, or may be obtained subject to conditions that are not anticipated, or another condition to the closing of the proposed acquisition may not be satisfied;

·Dyax may be unable to retain and hire key personnel and/or maintain its relationships with customers, suppliers and other business partners pending the consummation of the proposed acquisition by Shire, or Dyax business may be disrupted by the proposed acquisition, including increased costs and diversion of management time and resources;

difficulties in integrating Dyax into Shire may lead to the combined company not being able to realize the expected operating efficiencies, cost savings, revenue enhancements, synergies or other benefits at the time anticipated or at all;

and other risks and uncertainties detailed from time to time in Shire’s and Dyax’s filings with the Securities and Exchange Commission (the “SEC”), including those risks outlined in “Item 1A: Risk Factors” in Shire’s Annual Report on Form 10-K for the year ended December 31, 2014.

No statement in this announcement is intended as a profit forecast or a profit estimate and no statement in this announcement should be interpreted to mean that earnings per Shire security for the current or future financial years would necessarily match or exceed the historical published earnings per Shire security.

In assessing the proposed transaction, Shire used projections regarding its accretive impact and growth profile, which were based on internal forecasts of its Non GAAP diluted earnings per share.  These forecasts are Non GAAP financial measures derived by excluding certain amounts that would be included in financial measures as determined under US GAAP.  Amounts which have been excluded are consistent with Shire’s established Non GAAP policy, as included on pages 30 to 31 of Shire’s Q3 earnings release. Shire is unable to present quantitative reconciliations because management cannot currently reasonably predict with sufficient reliability all of the necessary components of the comparable US GAAP financial measure.

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Dyax Cautionary Statement Regarding Forward-Looking Statements

Certain statements in this press release may contain certain “forward-looking statements” (including “forward-looking statements” within the meaning of the Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, with respect to the financial condition, results of operations and business of Dyax Corp. and certain plans and objectives of the board of directors of Dyax.  All statements other than statements of historical or current facts included in this press release are forward-looking statements.  Forward-looking statements often use words such as “anticipate”, “target”, “expect”, “estimate”, “predict”, “intend”, “plan”, “contemplate”, “project”, “potential”, “goal”, “continue”, “believe”, “will”, “likely”, “may”, “should”, “would”, “could” or other words or terms of similar meaning.  Such statements are based upon Dyax’s current beliefs and expectations and are subject to significant risks and uncertainties. Actual results may vary materially from those set forth in the forward-looking statements.

Although Dyax believes the expectations contained in its forward-looking statements are reasonable, it can give no assurance that such expectations will prove correct.  Such risks and uncertainties include risks and uncertainties related to the proposed transaction with Shire Pharmaceuticals International, Parquet Courts, Inc. and Shire plc including, but not limited to:

·the expected timing and likelihood of completion of the pending merger, including the timing, receipt and terms and conditions of any required governmental approvals of the pending merger that could cause the parties to abandon the transaction;

·the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement, including a termination of the merger agreement under circumstances that could require Dyax to pay a termination fee;

·the possibility Dyax’s stockholders may not approve the merger;

·the risk that the parties may not be able to satisfy the conditions to the proposed merger in a timely manner or at all;

·the failure of the merger to close for any other reason;

·the non-occurrence of the milestone event specified in the contingent value rights agreement;

·risks related to disruption of management time from ongoing business operations due to the proposed merger;

·limitations placed on Dyax’s ability to operate the business by the merger agreement;

·the outcome of any legal proceedings instituted against Dyax and/or others relating to the merger agreement, and the transactions contemplated thereby, including the merger;

·the risk that any announcements relating to the proposed merger could have adverse effects on the market price of Dyax’s common stock;

·the risk that the proposed transaction and its announcement could have an adverse effect on the ability of Dyax to retain and hire key personnel and maintain relationships with its suppliers and customers, and on its operating results and businesses generally; and

·certain presently unknown or unforeseen factors, including, but not limited to, acts of terrorism and natural disasters.

Dyax cautions that the foregoing list of important factors that may affect future results is not exhaustive.  Dyax undertakes no obligation to correct or update any forward-looking statements, whether as a result of new information, future events or otherwise.  Additional information on factors that may affect the business and financial results of Dyax can be found in the filings of Dyax made from time to time with the SEC.

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Additional Information and Where to Find It

In connection with the merger, Dyax will prepare a proxy statement to be filed with the SEC. When completed, a definitive proxy statement and a form of proxy will be mailed to the stockholders of Dyax. BEFORE MAKING ANY VOTING DECISION, DYAX’S STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT REGARDING THE MERGER CAREFULLY AND IN ITS ENTIRETY BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER. Dyax’s stockholders will be able to obtain, without charge, a copy of the proxy statement (when available) and other relevant documents filed with the SEC from the SEC’s website at http://www.sec.gov. Dyax’s stockholders will also be able to obtain, without charge, a copy of the proxy statement and other relevant documents (when available) by directing a request by mail or telephone to Dyax Corp., Attn: Investor Relations, 55 Network Drive, Burlington, Massachusetts 01803, telephone: (617) 225-2500, or from Dyax’s website, http://www.dyax.com.

Participants in Solicitation

Dyax and its directors and officers may be deemed to be participants in the solicitation of proxies from Dyax’s stockholders with respect to the merger. Information about Dyax’s directors and executive officers and their ownership of Dyax’s common stock is set forth in the proxy statement for Dyax’s 2015 Annual Meeting of Stockholders, which was filed with the SEC on April 14, 2015. Stockholders may obtain additional information regarding the interests of Dyax and its directors and executive officers in the merger, which may be different than those of Dyax’s stockholders generally, by reading the proxy statement and other relevant documents regarding the merger, when filed with the SEC.

Further Information

Deutsche Bank AG is authorised under German Banking Law (competent authority: European Central Bank) and, in the United Kingdom, by the Prudential Regulation Authority.  It is subject to supervision by the European Central Bank and by BaFin, Germany’s Federal Financial Supervisory Authority, and is subject to limited regulation in the United Kingdom by the Prudential Regulation Authority and Financial Conduct Authority.

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