Prothena Corporation plc
Prothena Corp plc (Form: 10-12B/A, Received: 11/30/2012)

As filed with the Securities and Exchange Commission on November 30, 2012

Registration No.            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 2

to

Form 10

 

 

GENERAL FORM FOR REGISTRATION OF SECURITIES

PURSUANT TO SECTION 12(b) OR 12(g) OF

THE SECURITIES EXCHANGE ACT OF 1934

 

 

Prothena Corporation plc

(Exact name of registrant as specified in its charter)

 

 

 

Ireland   Not Applicable

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

650 Gateway Boulevard

South San Francisco, California

  94080
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code: (650) 837-8550

 

 

Securities to be registered pursuant to Section 12(b) of the Act:

 

Title of Each Class to be so Registered

 

Name of Each Exchange on Which
Each Class is to be Registered

Ordinary Shares, par value $0.01 per share   The Nasdaq Global Market

Securities to be registered pursuant to Section 12(g) of the Act: None

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Securities Exchange Act of 1934, as amended. (Check one):

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   ¨   (Do not check if a smaller reporting company)    Smaller reporting company   x

 

 

 


INFORMATION REQUIRED IN REGISTRATION STATEMENT

CROSS-REFERENCE SHEET BETWEEN INFORMATION STATEMENT AND ITEMS OF FORM 10

The information required by the following Form 10 Registration Statement items is contained in the Information Statement sections that we identify below, each of which we incorporate in this report by reference:

 

Item 1. Business

The information required by this item is contained under the sections “Summary,” “Risk Factors,” “The Separation and Distribution and Related Transactions,” “Capitalization,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and “Business” of the Information Statement, which sections are incorporated herein by reference.

 

Item 1A. Risk Factors

The information required by this item is contained under the section “Risk Factors” of the Information Statement, which section is incorporated herein by reference.

 

Item 2. Financial Information

The information required by this item is contained under the sections “Summary,” “Risk Factors,” “Capitalization,” “Selected Historical Carve-out Combined Financial Data,” “Unaudited Pro Forma Condensed Carve-out Combined Financial Statements,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Description of Share Capital” and “Index to Financial Statements,” and the financial statements referenced therein, of the Information Statement, which sections are incorporated herein by reference.

 

Item 3. Properties

The information required by this item is contained under the section “Business — Facilities” of the Information Statement, which section is incorporated herein by reference.

 

Item 4. Security Ownership of Certain Beneficial Owners and Management

The information required by this item is contained under the section “Security Ownership of Certain Beneficial Owners and Management” of the Information Statement, which section is incorporated herein by reference.

 

Item 5. Directors and Executive Officers

The information required by this item is contained under the section “Corporate Governance and Management” of the Information Statement, which section is incorporated herein by reference.

 

Item 6. Executive Compensation

The information required by this item is contained under the sections “Executive Compensation” and “Corporate Governance and Management — Compensation Committee Interlocks and Insider Participation” of the Information Statement, which sections are incorporated herein by reference.

 

Item 7. Certain Relationships and Related Transactions, and Director Independence

The information required by this item is contained under the sections “Arrangements between Elan and Prothena,” “Certain Relationships and Related Party Transactions” and “Corporate Governance and Management” of the Information Statement, which sections are incorporated herein by reference.


Item 8. Legal Proceedings

The information required by this item is contained under the section “Business — Legal Proceedings” of the Information Statement, which section is incorporated herein by reference.

 

Item 9. Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters

The information required by this item is contained under the sections “Risk Factors,” “Capitalization,” “The Separation and Distribution and Related Transactions,” “Listing and Trading of our Ordinary Shares,” “Dividend Policy” and “Executive Compensation” of the Information Statement, which sections are incorporated herein by reference.

 

Item 10. Recent Sales of Unregistered Securities

None.

 

Item 11. Description of Registrant’s Securities to be Registered

The information required by this item is contained under the section “Description of Share Capital” of the Information Statement, which section is incorporated herein by reference.

 

Item 12. Indemnification of Directors and Officers

The information required by this item is contained under the section “Indemnification of Directors and Officers” of the Information Statement, which section is incorporated herein by reference.

 

Item 13. Financial Statements and Supplementary Data

The information required by this item is contained under the sections “Unaudited Pro Forma Condensed Carve-out Combined Financial Statements” and “Index to Financial Statements,” and the financial statements referenced therein, of the Information Statement, which sections are incorporated herein by reference.

 

Item 14. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

None.

 

Item 15. Financial Statements and Exhibits

(a) Financial Statements

The information required by this item is contained under the section “Unaudited Pro Forma Condensed Carve-out Combined Financial Statements” and “Index to Financial Statements,” and the financial statements referenced therein, of the Information Statement, which sections are incorporated herein by reference.


(b) Exhibits

The following documents are filed as exhibits hereto:

 

Exhibit
No.
  

Description

2.1    Demerger Agreement, dated as of November 8, 2012 between Elan Corporation, plc and Prothena Corporation plc
2.2    Form of Amended and Restated Intellectual Property License and Contribution Agreement among Neotope Biosciences Limited, Elan Pharma International Limited, and Elan Pharmaceuticals, Inc.
2.3    Form of Intellectual Property License and Conveyance Agreement among Neotope Biosciences Limited, Elan Pharma International Limited and Elan Pharmaceuticals, Inc.
2.4    Form of Asset Purchase Agreement between Elan Pharmaceuticals, Inc. and Prothena Biosciences Inc
3.1    Form of Memorandum and Articles of Association of Prothena Corporation plc
8.1    Form of Tax Opinion of Cadwalader, Wickersham & Taft LLP
8.2    Form of Tax Opinion of KPMG LLP, Independent Registered Public Accounting Firm
10.1    Form of Tax Matters Agreement
10.2    Form of Transitional Services Agreement
10.3    Subscription and Registration Rights Agreement, dated as of November 8, 2012 by and among Prothena Corporation plc, Elan Corporation, plc and Elan Science One Limited
10.4    Form of Research and Development Services Agreement
10.5    Form of Deed of Indemnity
10.6    Lease Agreement, dated as of March 18, 2010 between Are-San Francisco No. 33, LLC and Elan Pharmaceuticals, Inc.
10.7    First Amendment to Lease, dated as of November 18, 2011 between Are-San Fancisco No. 33, LLC and Elan Pharmaceuticals, Inc.
10.8    Second Amendment to Lease, dated as of June 1, 2012 between Are-San Francisco No. 33, LLC and Elan Pharmaceuticals, Inc.
10.9    Third Amendment to Lease, dated as of October 3, 2012 between Are-San Francisco No. 33, LLC and Elan Pharmaceuticals, Inc.
10.10    Assignment of Tenant’s Interest in Lease and Assumption of Lease Obligations, dated as of December 2, 2012 between Elan Pharmaceuticals, Inc. and Prothena Biosciences Inc
10.11    Form of Prothena Corporation plc 2012 Long Term Incentive Plan
10.12    Form of Prothena Biosciences Inc Severance Plan
10.13    Form of Prothena Biosciences Inc Incentive Compensation Plan
10.14    License Agreement, dated as of December 31, 2008 between the University of Tennessee Research Foundation and Elan Pharmaceuticals, Inc.
21.1    List of Subsidiaries
99.1    Information Statement, preliminary and subject to completion, dated November 30, 2012


SIGNATURES

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.

 

    Prothena Corporation plc
   

By:

  /s/ Neil McLoughlin
   

Name:

  Neil McLoughlin
Date: November 30, 2012    

Title:

  Company Secretary

 

5

Exhibit 2.1

Dated 8 November 2012

ELAN CORPORATION, PLC

and

PROTHENA CORPORATION PLC

 

 

DEMERGER AGREEMENT

 

 

 

 

 

 


CONTENTS

 

1.

  DEFINITIONS AND INTERPRETATION      4   

2.

  CONDITIONS      13   

3.

  PRE-COMPLETION OBLIGATIONS      14   

4.

  TRANSFER OF NEOTOPE BIOSCIENCES AND ISSUE OF PROTHENA SHARES      15   

5.

  COMPLETION OBLIGATIONS      15   

6.

  ESTABLISHMENT OF THE SEPARATION COMMITTEE      16   

7.

  INDEMNIFICATION      16   

8.

  MUTUAL RELEASES      16   

9.

  RELEASE OF GUARANTEES      17   

10.

  CONTRACTUAL ARRANGEMENTS      18   

11.

  TAX      21   

12.

  DEALINGS BETWEEN GROUPS      21   

13.

  INSURANCE      23   

14.

  CONSENTS      23   

15.

  EMPLOYEE BENEFITS      24   

16.

  TRADE PAYABLES AND ACCRUALS      25   

17.

  FURTHER ASSURANCE      25   

18.

  NON SOLICITATION      27   

19.

  PAYMENTS      27   

20.

  CONFIDENTIALITY      27   

21.

  SIGNS; USE OF COMPANY NAMES      28   

22.

  DISPUTE RESOLUTION      28   

23.

  ENTIRE AGREEMENT      29   

24.

  NOTICES      30   

25.

  ANNOUNCEMENTS      31   

26.

  GOVERNING LAW AND JURISDICTION      31   

27.

  MISCELLANEOUS      31   

Schedule 1 – Employee Benefits

A. Healthcare Benefits

B. Severance Benefits

C. Pension Benefits

D. Share Plans

E. Compensation Arrangements

Schedule 2 – Mutual Indemnities

Schedule 3 – Provisions relating to Claims under the Mutual Indemnities

Schedule 4 – Trade Payables and Accruals

Exhibit A – Step Plan

 

2


THIS DEMERGER AGREEMENT is made on 8 November 2012

BETWEEN:

 

  (1) ELAN CORPORATION, PLC a public limited company incorporated in Ireland, with registered number 30356 having its registered office at Treasury Building, Lower Grand Canal Street, Dublin 2, Ireland ( Elan ); and

 

  (2) PROTHENA CORPORATION PLC , a public limited company incorporated in Ireland, with registered number 518146 having its registered office at 25-28 North Wall Quay, Dublin 1, Ireland ( Prothena ),

(each a Party , together the Parties ).

WHEREAS:

 

A. Elan owns and operates the Elan Business and also owns and operates the Prothena Business;

 

B. Elan has determined that it would be appropriate and desirable, following the Pre-Demerger Restructuring, to separate the Prothena Business from Elan in order to provide both Elan and Prothena with the following key benefits: (i) greater strategic focus of financial resources and management’s efforts, (ii) direct and differentiated access to capital resources, (iii) enhanced investor choice through investment opportunities in two separate companies and (iv) enhanced management incentive tools;

 

C. Prothena has been formed in order to facilitate such separation;

 

D. Prior to the Demerger and pursuant to the Pre-Demerger Restructuring, the Parties anticipate that the assets and Liabilities comprising the Prothena Business will be transferred and held within the Restructured Prothena Group;

 

E. Elan and Prothena have each determined that it would be appropriate and desirable for Elan to transfer to Prothena, and for Prothena to receive, directly or indirectly, all of the outstanding shares of each company comprising the Restructured Prothena Group (the Prothena Transfer ) in consideration for the allotment of 99.99% of the outstanding shares of Prothena to the Elan Shareholders (the Allotment ), which Allotment constitutes a deemed in specie distribution by Elan to the Elan Shareholders;

 

F. The Parties intend that the Prothena Transfer and the Allotment (taken together) shall qualify as a “scheme of reconstruction or amalgamation” pursuant to Section 587 of the Taxes Consolidation Act 1997, with the result that no chargeable gain for Irish Tax purposes should arise for the Elan Shareholders;

 

G. The Parties intend that the Prothena Transfer and the Allotment (taken together) shall not give rise to a chargeable gain for Elan in respect of the disposal by Elan of Neotope Biosciences, pursuant to section 615 of the Taxes Consolidation Act 1997, and shall be relieved from Irish stamp duty for which Prothena would be otherwise accountable for under section 80 of the Stamp Duties Consolidation Act 1999;

 

H. The Parties intend that the Prothena Transfer and the Allotment qualify as a “reorganization” under Section 368(a)(1)(D) of the U.S. Internal Revenue Code of 1986, as amended (the IRC ), and the Allotment, as such, qualify as a distribution of ordinary shares of Prothena to the Elan Shareholders under Section 355 of the IRC;

 

I. The Parties intend that the execution of this Agreement constitutes a “plan of reorganization” for the purposes of Section 368 of the IRC; and

 

J. The Parties intend in this Agreement to set forth the principal arrangements between them regarding the Prothena Transfer and the Allotment.

 

3


IT IS AGREED as follows:

 

1. DEFINITIONS AND INTERPRETATION

 

1.1. The following provisions shall apply to the interpretation of this Agreement. Words and expressions used in this Agreement shall have the meanings set out below, unless expressly redefined, or the context requires otherwise:

 

“Admission”    means admission of the Demerger Shares to the NASDAQ Global Market having become effective;
“Action”    means any demand, claim, action, suit, counter suit, arbitration, inquiry, Proceeding, audit, review, complaint, litigation, counterclaim, mediation, alternative dispute resolution, discovery request, subpoena or Investigation, of any nature whether administrative, civil, criminal, regulatory or otherwise, by or before any federal, state, local, foreign or international Governmental Authority or any arbitration or mediation tribunal;
“ADSs”    means American depository shares issued in respect of Elan Shares (each ADS representing one Elan Share);
“Affiliate”    means, in relation to Elan, any other Person who directly or indirectly Controls, is Controlled by, or is under common Control with Elan from time to time but excluding any Prothena Group Company and, in relation to Prothena, any other Person who directly or indirectly Controls, or is Controlled by, or is under common Control with Prothena or Neotope Biosciences from time to time but excluding any Elan Group Company;
“Agreed Form”    means, in relation to any document, in a form agreed or to be agreed by the Parties to this Agreement;
“Ancillary Agreements”   

means the:

 

(i)     Subscription and Registration Rights Agreement;

 

(ii)    Transitional Services Agreement;

 

(iii)  Tax Matters Agreement; and

 

(iv)   Research and Development Services Agreement;

“Applicable Laws”    means any and all applicable laws (whether civil, criminal or administrative) including common law, statutes, subordinate legislation, treaties, regulations, rules, directives, decisions, by-laws, circulars, codes, orders, notices, demands, decrees, injunctions, guidance, Judgments or resolutions of a parliamentary government, federal, state or Governmental Authority, statutory, administrative or regulatory body, securities exchange, court or agency in any part of the world which are in force or enacted and are, in each case, legally binding as at Completion and the term Applicable Law will be construed accordingly;

 

4


“Asset Transfer Agreement”    has the meaning given to that term in clause 17.3.1;
“Business Day”    means a day (not being a Saturday or Sunday or a public holiday) when clearing banks are open for business in Dublin and New York for the transaction of normal banking business;
“CEO”    means the chief executive officer from time to time of the relevant company;
“Circular”    means the circular to be dated the Posting Date, to be sent to the Elan Shareholders, in connection with the Demerger, including a notice of an extraordinary general meeting of Elan;
“Clinical Trials”    means trials performed under clinical conditions to evaluate the effectiveness and safety of medications by monitoring their effects on test groups;
“Completion”    means the time and date when the Conditions shall have been fulfilled and the events specified in clause 5 shall have taken place;
“Completion Trade Payables and Accruals”    means the aggregate amount of the Trade Payables and Accruals as at Completion;
“Completion Trade Payables and Accruals Statement”    means the statement showing the Completion Trade Payables and Accruals as at Completion, calculated in accordance with Schedule 4, Part 1;
“Conditions”    means the conditions set out in clause 2;
“Confidential Information”    has the meaning given to that term in clause 20.1.1;
“Connected Person”    has the meaning given to that term in clause 23;
“Contract”    means any contract, agreement, lease, license, sales order, purchase order, undertaking, permit, assurance, indemnity, representation, warranty, instrument or other commitment, whether written, oral or implied, that is binding on any Person or legal entity or any part of its property under any Applicable Law;
“Control”    means the power to direct the management of an entity, directly or indirectly, whether through the ownership of voting securities, by Contract or otherwise; and the terms “Controlled by” and “under common Control” have meanings correlative to the foregoing;
“Costs”    means charges and reasonable documented costs (including legal costs) and expenses (other than, in each case, Tax), in each case of any nature whatsoever;
“Demerger”    means the demerger of the Prothena Business from the Elan Group to be effected by the Prothena Transfer and the Allotment;
“Demerger Record Time”    means 11:59 p.m., GMT, on 14 December 2012, or such other time as the Elan Board shall, in its absolute discretion, determine;

 

5


“Demerger Resolution”    means the resolution set out in the notice of extraordinary general meeting of Elan included in the Circular;
“Demerger Shares”    means the ordinary shares in the share capital of Prothena, with a nominal value of U.S.$0.01 each, to be allotted and issued, credited as fully paid up to the Qualifying Elan Shareholders in consideration for the Prothena Transfer, as Elan shall direct in accordance with this Agreement;
“DPA”    has the meaning given to that term in clause 17.1.5;
“Elan Board”    means the board of directors of Elan or any duly authorised committee thereof (including the Transaction Committee);
“Elan’s Bonus Contribution Amount”    has the meaning given to that term in clause 2.3, Schedule 1, Part E;
“Elan Business”    means all businesses carried on prior to Completion by any member of the Pre-Demerger Elan Group except for the Prothena Business;
“Elan Business Liabilities”    has the meaning given to that term in Schedule 2;
“Elan Clinical Trial Insurance Policies”    means the insurance policies put in place by the Pre-Demerger Elan Group to cover Clinical Trials;
“Elan Employees”    means those individuals employed exclusively or predominantly in the Elan Business at Completion and the term “Elan Employee” shall be construed accordingly;
“Elan Group”    means Elan and its subsidiary undertakings from time to time, but excluding any Prothena Group Company;
“Elan Group Company”    means any company in the Elan Group and “Elan Group Companies” shall be construed accordingly;
“Elan Group Company Guarantee”    means any guarantee, indemnity, obligation, bond, warranty, covenant, security or collateral obligation given by any Elan Group Company in respect of any Prothena Group Company, any Liabilities or obligations of any Prothena Group Company, or any Liabilities or obligations of the Prothena Business;
“Elan Marks”    means the name “Elan”, or any variations thereof, and any other trademarks, service marks, trade names, logos or identifiers owned by, or licensed by a third party to, any member of the Elan Group, in each case as of Completion;
“Elan Severance Plan”    means the severance plan maintained by Athena Neurosciences, Inc. for the benefit of employees of certain of its Affiliates, including Elan Pharmaceuticals, Inc. Prothena Employees have been eligible to participate in the Elan Severance Plan;
“Elan Shareholders”    means the holders of Elan Shares and ADSs;

 

6


“Elan Shares”    means the ordinary shares with a nominal value of €0.05 each in the share capital of Elan;
“Elan Share Plans”   

means the share incentive schemes of Elan including the:

 

(i)     Elan Corporation, plc 1996 Long-Term Incentive Plan;

 

(ii)    Elan Corporation, plc 1996 Consultant Option Plan;

 

(iii)  Elan Corporation, plc 1999 Stock Option Plan;

 

(iv)   Elan Corporation, plc 2006 Long Term Incentive Plan;

 

(v)    Elan Corporation, plc 2012 Long Term Incentive Plan; and

 

(vi)   Elan Corporation, plc Employee Equity Purchase Plan;

“Elan Welfare Plan”    has the meaning given to that term in clause 1 of Schedule 1, Part A (Healthcare Benefits);
“EURIBOR”    means, in respect of any relevant sum and any relevant period, the average of the rates per cent per annum at which Euro deposits for 6 months are offered by leading banks (quoted on Reuters) on the Dublin Inter Bank Market as published by Reuters at or about 11.00 a.m. on the first day of each relevant 6 month period in respect of which the calculation is made or, if such day is not a Business Day, on the immediately preceding Business Day;
“Form 10”    means the registration statement on Form 10, including all amendments or supplements thereto, filed by Prothena with the SEC in connection with the Demerger;
“Former Elan Employee”    means those individuals who were employed exclusively or predominantly in the Elan Business at any point during the period of one year prior to Completion, but who are no longer Elan Employees or Prothena Employees;
“Governmental Approvals”    means any notices, reports or other filings to be made with, or any consents, registrations, permits or authorisations to be obtained from, any Governmental Authority;
“Governmental Authority”    means any Irish, U.S. or other federal, state, local, foreign or international court, government, department, commission, board, bureau, agency, official or other legislative, judicial, regulatory, administrative or governmental authority or self-regulatory organisation;
“Group”   

means in relation to the relevant Party immediately after Completion:

 

(i)     a parent undertaking or subsidiary undertaking of that Party; or

 

(ii)    a subsidiary undertaking of any parent undertaking of that Party,

 

and “Group Company” shall be construed accordingly;

 

7


“Group Contract”    has the meaning given to that term in clause 10.3;
“Indemnified Party”    has the meaning given to that term in Schedule 3 (Provisions Relating to Claims Under the Mutual Indemnities);
“Indemnifying Party”    has the meaning given to that term in Schedule 3 (Provisions Relating to Claims Under the Mutual lndemnities);
“Independent Accountant”    means the independent chartered accountant appointed in accordance with clause 2.6 of Schedule 4, Part 1 to resolve any dispute arising in relation to the calculation of the Completion Trade Payables and Accruals Statement;
“Information”    means information, including books and records, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programmes or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data;
“Information Statement”    means the Information Statement attached as an exhibit to the Form 10 distributed to the holders of Elan Shares in connection with the Demerger, including any amendment or supplement thereto;
“Insurance Date”    has the meaning given to that term in clause 10.2.4 of Schedule 3;
“Intellectual Property Rights”    means all patents, trade and service marks, trade and service names, logos, copyrights (including, without limitation, rights in computer software), rights in designs and rights in databases (whether or not any of these is registered and including any applications for registration of any such thing) and all other intellectual property rights or forms of protection of a similar nature or having equivalent or similar effect to any of the foregoing which subsist anywhere in the world;
“Investigation”    has the meaning given to that term in clause 17.1.4;
“Judgment”    means any judgment, order, writ, injunction, stipulation or decree issued by, or any legally binding agreement with a Governmental Authority of competent jurisdiction, whether preliminary, temporary or permanent;

 

8


“Lease”    means the lease for space at 650 Gateway Boulevard, South San Francisco, CA 94080, U.S.A., that Elan Pharmaceuticals, Inc. intends to assign or sublease to a Neotope Group Company;
“Liabilities”    means all debts, liabilities, Losses, guarantees, assurances, commitments and obligations, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including whether arising out of any Contract or tort based on negligence or strict liability and including whether arising under any Applicable Law, Action or threatened Action) and whether or not the same would be required by generally accepted principles and accounting policies to be reflected in financial statements or disclosed in the notes thereto;
“Losses”    means any and all losses, Costs, obligations, Liabilities, settlement payments, awards, Judgments, Taxes, fines, penalties, damages, fees, expenses, deficiencies, claims or other charges (including the Costs and expenses of any and all Actions and demands, assessments, Judgments, settlements and compromises relating thereto and attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the Investigation or defence thereof or the enforcement of rights hereunder);
“Mutual Indemnities”    means the indemnities given by Elan to Prothena or by Prothena to Elan which are contained in clause 9 and in Schedule 2 (Mutual Indemnities);
“Neotope Biosciences”    means Neotope Biosciences Limited, a private limited company incorporated in Ireland, company number 460227, with a registered office at Treasury Building, Lower Grand Canal Street, Dublin 2, Ireland;
“Onclave”    means Onclave Therapeutics Limited, a wholly owned subsidiary of Neotope Biosciences and a private limited company incorporated in Ireland, company number 485112, with a registered office at Treasury Building, Lower Grand Canal Street, Dublin 2, Ireland;
“Other Group”    means in reference to the Elan Group, the Prothena Group, and vice-versa;
“Outstanding Agreements”    has the meaning given to that term in clause 10.1;
“Payment Date”    has the meaning set out in clause 1.2.4 of Schedule 4, Part 1;
“Person”    means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a Governmental Authority;
“Posting Date”    means the date of the issue and dispatch of the Circular, as determined by the Elan Board;

 

9


“Pre-Demerger Elan Group”    means the Elan Group and the Restructured Prothena Group;
“Pre-Demerger Restructuring”    means the restructuring of the Pre-Demerger Elan Group, effected or to be effected in accordance with steps 1-7 of the Step Plan prior to Completion in preparation for the Demerger, under which Elan allocated, assigned and transferred (or will allocate, assign and transfer), or caused (or will cause) to be allocated, assigned and transferred, to the Restructured Prothena Group the assets and Liabilities that comprise the Prothena Business;
“ Prothena Board”    means the board of directors of Prothena or any duly authorised committee thereof;
“Prothena Business”    means the drug discovery business platform of the Pre-Demerger Elan Group, focused primarily on the discovery and development of novel antibodies for the potential treatment of a broad range of diseases that involve protein misfolding or cell adhesion, including, without limitation, any business conducted by any Prothena Group Company, prior to, as of or following Completion;
“Prothena Business Liabilities”    has the meaning given to that term in Schedule 2;
“Prothena Employees”    means those individuals employed exclusively or predominantly in the Prothena Business and/or by any Prothena Group Company at Completion and the term “Prothena Employee” shall be construed accordingly;
“Prothena Group”    means Prothena, Neotope Biosciences, Prothena U.S., Onclave, and the other companies that are, or will following Completion be, directly or indirectly, subsidiaries of Prothena;
“Prothena Group Company”    means any member of the Prothena Group, including but not limited to Prothena, Neotope Biosciences, Prothena U.S. and Onclave, and “Prothena Group Companies” shall be construed accordingly;
“Prothena Group Company Guarantee”    means any guarantee, indemnity, bond, warranty, covenant, security or collateral obligations given by any Prothena Group Company in respect of any Elan Group Company or any Liabilities or obligations of any Elan Group Company;
“Prothena U.S.”    means Prothena Biosciences Inc, a wholly owned subsidiary of Neotope Biosciences and a company incorporated in the State of Delaware, with an address at 650 Gateway Boulevard South San Francisco, CA 94080, U.S.A.;
“Proceedings”    has the meaning given to that term in clause 26.2;
“Providing Party”    has the meaning given to that term in clause 12.1;
“Qualifying Elan Shareholders”    means Elan Shareholders at the Demerger Record Time;

 

10


“Receiving Company”    has the meaning given to that term in clause 10.1.2;
“Representatives”    has the meaning given to that term in clause 20.1.2;
“Requesting Party”    has the meaning given to that term in clause 12.1;
“Research and Development Services Agreement”    means the agreement to be entered into by the Parties pursuant to which Prothena will provide certain research and development services to Elan;
“Restructured Prothena Group”    means Neotope Biosciences, Prothena U.S. and Onclave;
“SEC”    means the U.S. Securities and Exchange Commission;
“Separation Committee”    means the committee to be established in accordance with clause 6;
“Step Plan”    the Project Apple step plan dated 5 November 2012 set out at Exhibit A, steps 1-7 of which summarises the proposals in relation to the Pre-Demerger Restructuring;
“Subscription and Registration Rights Agreement”    means the agreement under which, subject to and conditional upon Completion in accordance with the terms of this Agreement, immediately following the Demerger, Elan Science One Limited ( ES1 ) will subscribe for, and Prothena will allot and issue to ES1, 18% of the outstanding ordinary shares of Prothena (calculated after taking into account the issuance of such shares), for a cash payment of U.S.$26,000,000;
“Tax”    means all forms of taxation, duties, imposts, levies and other governmental charges and whether of Ireland, the U.S.A. or elsewhere, including (but without limitation) income tax, corporation tax, corporation profits tax, advance corporation tax, capital gains tax, capital acquisitions tax, residential property tax, wealth tax, value added tax, dividend withholding tax, deposit interest retention tax, customs and other import and export duties, excise duties, stamp duty, capital duty, social insurance, levies, social welfare or other similar contributions and other amounts corresponding thereto whether payable in Ireland, the U.S.A. or elsewhere, and any interest, surcharge, penalty or fine in connection therewith, and the word Taxation shall be construed accordingly;
“Tax Matters Agreement”    means the agreement to be entered into by Prothena and Elan addressing certain Tax matters, including the allocation of Tax Liabilities for taxable periods before and after Completion (including any Taxes payable with respect to the Demerger);
“Third Party Consents”    means all consents, waivers or approvals from, or notification requirement to, any Person other than a member of either Group which are required to be obtained as a result of the Pre-Demerger Restructuring or the Demerger;

 

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“Trade Payables and Accruals”    means the following trade payables and accruals relating to the Prothena Business; trade creditors (A/C code 200010), clinical accruals (A/C code 210012), accrued trade creditors (A/C code 210030), accrued S&P Tax (A/C code 210032), maintenance accruals (A/C code 210034), accrued legal (A/C code 210036), accrued consulting (A/C code 210042), accrued professional fees (A/C code 210044), tangible asset accruals (A/C code 210048) and other accruals (A/C code 210090);
“Transaction Agreements”    means this Agreement, the Ancillary Agreements and any other agreement entered into in connection with the Demerger or the Pre-Demerger Restructuring, including any Asset Transfer Agreement;
“Transaction Committee”    means the committee of the Elan Board established on 20 September 2012 to consider, approve and take all necessary actions required to implement the Demerger;
“Transfer Shares”    means the entire issued share capital of Neotope Biosciences, being 100,811,000 ordinary shares of U.S.$1.00 each;
“Transferring Company”    has the meaning given to that term in clause 10.1.1;
“Transitional Services Agreement”    means the transitional services agreement to be entered into by the Parties pursuant to which the Parties will provide certain services to each other for a transitional period after Completion.

 

1.2. Unless expressly stated in this agreement or the context otherwise requires, in this Agreement:

 

  1.2.1. references to clauses, sub-clauses, paragraphs, sub-paragraphs, Recitals and Schedules are to clauses, sub-clauses, paragraphs, sub-paragraphs of and Recitals and Schedules to this Agreement;

 

  1.2.2. the Schedules, exhibits and any attachments form part of this Agreement and the Schedules, exhibits and any attachments shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include the Schedules, exhibits and any attachments;

 

  1.2.3. headings and titles to clauses, Schedules, exhibits and any attachments are for convenience only and do not affect the interpretation of this Agreement;

 

  1.2.4. words importing the singular include the plural and vice versa and words importing the masculine include the feminine and neuter and vice versa;

 

  1.2.5. subject to clause 24 (Notices), reference to writing or similar expressions includes transmission by facsimile or other electronic means;

 

  1.2.6. unless otherwise defined, a word or phrase the definition of which is contained or referred to in section 2 of the 1963 Act has the meaning attributed to it by that definition;

 

  1.2.7. reference to any document includes that document as amended or supplemented whether before or after the date of this Agreement; and

 

  1.2.8. “including” or “includes” means including or includes without limiting the generality of the foregoing.

 

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2. CONDITIONS

 

2.1. The provisions of this Agreement shall be conditional and only become effective upon the completion of the following:

 

  2.1.1. the passing of the Demerger Resolution;

 

  2.1.2. the Elan Board shall have duly approved this Agreement, the disposal of the Transfer Shares to Prothena, and all the other transactions contemplated thereby;

 

  2.1.3. the Prothena Board shall have duly approved this Agreement, the allotment of the Demerger Shares to the Qualifying Elan Shareholders, and all the other transactions contemplated thereby;

 

  2.1.4. Elan and its subsidiaries shall have completed the Pre-Demerger Restructuring;

 

  2.1.5. each of the Transaction Agreements shall have been executed by each Party thereto;

 

  2.1.6. NASDAQ having acknowledged (and such acknowledgement not having been withdrawn) that the Demerger Shares will be approved for listing on the Nasdaq Global Market;

 

  2.1.7. prior to the Demerger, all of Elan’s Representatives shall have resigned or been removed as officers and from all boards of directors or similar governing bodies of the Prothena Group Companies, and all of Prothena’s Representatives shall have resigned or been removed from all such bodies of the Elan Group Companies;

 

  2.1.8. Elan and Prothena shall have received all permits, registrations and consents required under the securities or the “blue sky” laws of states or other political subdivisions of the United States or of foreign jurisdictions;

 

  2.1.9. the Form 10 shall have been declared effective by the SEC, and no stop order suspending the effectiveness of the Form 10 shall be in effect or, to the Parties’ knowledge, shall have been threatened by the SEC, and the Information Statement shall have been distributed or mailed (as appropriate) to the Qualifying Elan Shareholders;

 

  2.1.10. Elan and Prothena shall have received all Governmental Approvals and all Third Party Consents necessary to effect the Demerger and to permit the operation of the Prothena Business after Completion;

 

  2.1.11. no Applicable Law, Judgment or legal restraint shall be in effect that prohibits Completion or any of the other transactions contemplated by the Transaction Agreements;

 

  2.1.12. substantially all of the Outstanding Agreements that are material to the Prothena Business have been assigned or novated, as the case may be, as required pursuant to clause 10.1;

 

  2.1.13. substantially all of the Group Contracts that are material to the Prothena Business have been partially assigned to Prothena or have been terminated and replaced by separate agreements; and

 

  2.1.14. no other events or developments shall have occurred or shall exist that, in the judgment of the Elan Board, in its sole and absolute discretion, would make it inadvisable to effect the Demerger.

 

2.2. The foregoing Conditions may be waived only by the Elan Board, in its sole and absolute discretion, and they are for the sole benefit of Elan and shall not give rise to or create any duty on the part of the Elan Board to waive or not to waive such Conditions or in any way limit the right of termination of this Agreement set forth in clause 27.9 or alter the consequences of any such termination as specified in clause 27.9. Any determination made by the Elan Board prior to Completion concerning the satisfaction or waiver of any or all of the Conditions set forth in clause 2.1 shall be conclusive; PROVIDED THAT Elan shall not waive;

 

  2.2.1. the Condition in clause 2.1.5 that the Subscription and Registration Rights Agreement shall have been executed by Elan, ES1 and Prothena;

 

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  2.2.2. the Conditions in clauses 2.1.12 and 2.1.13; or

 

  2.2.3. any Condition that is mandatory under Applicable Law.

 

2.3. Subject to clause 2.4, the Parties shall use all reasonable endeavours to ensure fulfilment of the Conditions, unless waived by the Elan Board. If the Conditions are not satisfied by 1 July 2013, (or such other date as the Parties may agree), this Agreement shall automatically terminate and neither Party shall have any claim of any nature whatsoever against the other under this Agreement (save in respect of any rights and Liabilities of the Parties which have accrued prior to termination).

 

2.4. Each Party undertakes to the other to disclose anything which will or may prevent any of the Conditions from being satisfied immediately after it comes to the notice of that Party.

 

2.5. Elan will procure that, between the time of this Agreement and Completion, the Prothena Business will be carried on in the ordinary course subject only to:

 

  2.5.1. implementation of any remaining steps to be undertaken to facilitate giving effect to the Demerger, this Agreement or the Step Plan, or any further steps required to be taken in consequence of taking such remaining steps; or

 

  2.5.2. actions undertaken in the course of implementing the operational separation of the Prothena Business from the Elan Business in preparation for the Demerger; or

 

  2.5.3. any matter undertaken as a requirement of any Applicable Law or as a requirement of any Contract, arrangement or commitment relating to the Prothena Business in place prior to the date of this Agreement; or

 

  2.5.4. immediate or prompt steps undertaken to the extent required to prevent (so far as possible) or remedy or limit the consequences of any matter having a material and adverse effect on the ongoing operations of the Prothena Business (which Elan shall promptly notify Prothena of, if reasonably practicable, prior to taking such steps (and if not, as soon as reasonably practicable thereafter) and shall consult with and give reasonable consideration to any reasonable corrective or remedial action proposed by Prothena in respect of such matter).

 

3. PRE-COMPLETION OBLIGATIONS

 

3.1. On the Posting Date, Elan shall procure the despatch of the Circular and related documentation to Elan Shareholders as appropriate, subject to the prior approval of the Circular by the Elan Board.

 

3.2. Each of Elan and Prothena undertakes to the other that if, at any time after the date hereof and before the commencement of dealings in the Demerger Shares following Admission, it comes to the notice of either of them that:

 

  3.2.1. any statement contained in the Circular, the Form 10 or Information Statement has become or been discovered to be untrue, incorrect or misleading in any material respect;

 

  3.2.2. either the Circular, the Form 10 or Information Statement does not contain a statement that it should contain in order to comply with any Applicable Law and that omission is or may be material;

 

  3.2.3. there has been a significant change affecting any matter contained in the Circular, the Form 10 or Information Statement which would have been required to be disclosed in any such document had it occurred before the relevant document was circulated; or

 

  3.2.4. a significant new matter has arisen, the inclusion of Information in respect of which would have been required in the Circular, the Form 10 or Information Statement had it arisen before the relevant document was circulated,

then that Party shall immediately notify the other Party of the same in writing.

 

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3.3. Each Party undertakes to the other that it will comply with all Applicable Laws in relation to the Demerger, the Circular and the matters and transactions contemplated thereby and by this Agreement.

 

3.4. Each Party undertakes to notify the other of the action (if any) which it intends to take as a consequence of any matter referred to in clause 3.2.1 to 3.2.4.

 

4. TRANSFER OF NEOTOPE BIOSCIENCES AND ISSUE OF PROTHENA SHARES

 

4.1. Subject to the satisfaction or waiver of each of the Conditions in clause 2.1 (and subject also to clause 2.2), and the Elan Board determining, in its absolute discretion, that the Demerger continues to be in the best interests of Elan and the Elan Shareholders, Elan agrees or shall procure that, in accordance with the Demerger Resolution, to transfer subject to and with effect from Completion, and Prothena shall acquire, the Transfer Shares free from all security interests, options, equities, claims or other third party rights (including rights of pre-emption) of any nature whatsoever and together with all rights attaching to them.

 

4.2. Elan shall procure that prior to Completion (but subject thereto), the board of directors of Neotope Biosciences shall meet to approve the transfer of the Transfer Shares from Elan to Prothena, effective on Completion, and to resolve that Prothena be recorded in the register of members of Neotope Biosciences as the holder of the Transfer Shares.

 

4.3. In consideration of the transfer of the Transfer Shares, Prothena shall allot and issue directly to the Elan Shareholders, as Elan directs, such number of Demerger Shares to Qualifying Elan Shareholders as set forth in clause 4.4 below.

 

4.4. Elan hereby directs that the Demerger Shares be allotted and issued pursuant to clause 4.3 above to Qualifying Elan Shareholders in the ratio of 1 Demerger Share for every 41 Elan Shares or ADSs held by each Qualifying Elan Shareholder at the Demerger Record Time.

 

4.5. Prothena covenants that the Demerger Shares shall be allotted credited as fully paid and free from all liens, charges and encumbrances whatsoever and shall have the rights described in Prothena’s articles of association (which shall be in the Agreed Form).

 

4.6. No fractional Demerger Shares shall be issued, and such fractional Demerger Share interests shall not entitle the owner thereof to vote or to any rights of a holder of Demerger Shares. The distribution agent, which shall not be an Affiliate of Elan or Prothena, shall aggregate the fractional Demerger Share interests as soon as is practicable after Completion, and shall maintain a written or electronic record of each Elan Shareholder’s fractional Demerger Share interest, if any, and such Elan Shareholder’s name. The distribution agent shall cause the whole Demerger Shares obtained pursuant to the aggregation of the fractional Demerger Share interests to be sold, as soon as is practicable after Completion, in the open market at prevailing market prices, as determined by the distribution agent without influence from any Elan Group Company or Prothena Group Company. In connection with the foregoing, the distribution agent may select one or more broker-dealers, provided that no such entity is an affiliate of Elan or Prothena. As soon as is practicable after the sale of Demerger Shares pursuant to this clause 4.6, the distribution agent shall make available to the holders of fractional Demerger Share interests, on a pro rata basis, the net proceeds resulting from such sale after deduction of any required Costs, Taxes and commissions, rounding down to the nearest cent. The issuance of fractional Demerger Shares is prohibited under Prothena’s articles of association, and the payment of cash in lieu of fractional Demerger Shares shall not represent separately bargained-for consideration. None of Elan, Prothena or the distribution agent shall guarantee any minimum sale price for the fractional Demerger Share interests aggregated and sold on the open market pursuant to this clause 4.6, or pay any interest with respect to such sale proceeds. No Elan Shareholder shall receive cash equal to or greater than the value of one full Demerger Share as a result of the aggregation of fractional Demerger Share interests and the sale of Demerger Shares pursuant to this clause 4.6.

 

5. COMPLETION OBLIGATIONS

 

5.1. Completion of this Agreement will take place immediately upon the satisfaction or waiver of each of the Conditions in clause 2.1 (other than any Condition which will be satisfied only upon such Completion) when the following business shall be (or shall have been) transacted:

 

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  5.1.1. Elan shall deliver to Prothena a duly executed stock transfer form in respect of the Transfer Shares in favour of Prothena, together with the relevant share certificates and Prothena shall in connection with and as part of the business conducted at Completion, procure that Prothena is recorded in the register of members of Neotope Biosciences as the holder of the Transfer Shares;

 

  5.1.2. Prothena shall procure that the relevant entries are made in its register of members to reflect the allotment of the Demerger Shares to the Qualifying Elan Shareholders; and

 

  5.1.3. each Party shall deliver, or procure the delivery of a duly executed counterpart of each of the Ancillary Agreements.

 

5.2. Any amounts outstanding at Completion between any Elan Group Company and any Prothena Group Company shall, to the extent not already settled (unless otherwise agreed between the Parties) be settled by payment to the relevant Elan Group Company or Prothena Group Company (as appropriate) in the normal course, in accordance with the applicable terms of the relevant agreement.

 

5.3. The Parties shall procure that, to the extent the same has not been effected on or prior to Completion, any of their respective subsidiaries, the shares of which have been transferred as part of the Pre-Demerger Restructuring, shall (if applicable), upon either the stamping of the relevant transfers with the relevant duty or claiming a relevant relief from stamp duty, register the transferee of the relevant shares as the holder thereof in the register of members of the relevant company.

 

6. ESTABLISHMENT OF THE SEPARATION COMMITTEE

 

6.1. Elan and Prothena shall establish a separation committee (the Separation Committee ) from the date of this Agreement to review and assist in the implementation of this Agreement and the Transaction Agreements, to consider any additional issues arising from the implementation of the Demerger and to resolve (subject to clause 22) any disputes which may arise between members of the Elan Group and of the Prothena Group.

 

6.2. The Separation Committee shall meet from time to time as agreed by Elan and Prothena.

 

6.3. The members of the Separation Committee shall be a senior legal counsel, the Chief Financial Officers (or Financial Controllers) and the Company Secretaries of each of Elan and Prothena. The members of the Separation Committee shall be entitled to invite such other Persons as they may determine to attend particular meetings of the Separation Committee. The Separation Committee shall determine its own remit and procedures.

 

7. INDEMNIFICATION

 

7.1. It is agreed by the Parties that and save as specifically provided in this Agreement, Elan should be responsible for all matters relating to the Elan Business and that Prothena should be responsible for all matters relating to the Prothena Business, whether arising prior to, at or following Completion. Accordingly, and without prejudice to the specific provisions of this Agreement, the Parties have agreed to the undertakings set out in Schedule 2 (Mutual lndemnities) and clause 9.

 

7.2. The provisions of Schedule 3 (Provisions Relating to Claims Under the Mutual lndemnities) shall apply in relation to the making of any claim under Schedule 2 (Mutual lndemnities) and clause 9.

 

8. MUTUAL RELEASES

 

8.1. Except as provided in clause 8.3, effective upon Completion, Prothena hereby, for itself and each Prothena Group Company, and their respective Affiliates, predecessors, successors and assigns, and, to the extent Prothena legally may, all Persons that at any time prior or subsequent to Completion have been shareholders, directors, officers, members, agents or employees of the Prothena Group (in each case, in their respective capacities as such), remises, releases and forever discharges each Elan Group Company and their respective Affiliates, successors and assigns, and all Persons that at any time prior to Completion have been shareholders, directors, officers, members, agents or employees of Elan or any other Elan Group Company (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever, under any Applicable Law and in equity (including any right of contribution), whether arising under any Contract, by operation of law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred, or to have failed to occur, at or before Completion or any conditions existing or alleged to have existed at or before Completion, including in connection with the transactions and all other activities to implement the Demerger.

 

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8.2. Except as provided in clause 8.3, effective upon Completion, Elan hereby, for itself and each Elan Group Company, and their respective Affiliates, predecessors, successors and assigns, and, to the extent Elan legally may, all Persons that at any time prior or subsequent to Completion have been shareholders, directors, officers, members, agents or employees of the Elan Group (in each case, in their respective capacities as such), remises, releases and forever discharges each Prothena Group Company and their respective Affiliates, successors and assigns, and all Persons that at any time prior to Completion have been shareholders, directors, officers, members, agents or employees of Prothena or any other Prothena Group Company (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever, under any Applicable Law and in equity (including any right of contribution), whether arising under any Contract, by operation of law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred, or to have failed to occur, at or before Completion or any conditions existing or alleged to have existed at or before Completion, including in connection with the transactions and all other activities to implement the Demerger.

 

8.3. Nothing contained in clauses 8.1 or 8.2 will limit or otherwise affect any Party’s rights or obligations pursuant to or contemplated by any Transaction Agreement, in each case in accordance with its terms, including without limitation (i) the obligation of Prothena to assume and satisfy the Prothena Business Liabilities; (ii) the obligation of Elan to assume and satisfy the Elan Business Liabilities; (iii) the obligations of Elan and Prothena to perform their obligations and indemnify each other under the Transaction Agreements including pursuant to clause 7, Schedule 2 and Schedule 3 hereto; and (iv) any Liability the release of which would result in the release of any Person other than a Person released pursuant to this clause 8; provided that the Parties agree not to bring suit or permit any of their Subsidiaries to bring suit against any Person with respect to any Liability to the extent that such Person would be released with respect to such Liability by this clause 8.3 but for the provisions of this sub-clause (iv).

 

8.4. Prothena will not, and will cause each other Prothena Group Company not to, make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Elan or any Elan Group Company, or any other Person released pursuant to clause 8.1, with respect to any Liabilities released pursuant to clause 8.1.

 

8.5. Elan will not, and will cause each other Elan Group Company not to, make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Prothena or any Prothena Group Company, or any other Person released pursuant to clause 8.2, with respect to any Liabilities released pursuant to clause 8.2.

 

9. RELEASE OF GUARANTEES

 

9.1. With the exception of any Elan Group Company Guarantee in relation to the assignment or sublease of the Lease to a Prothena Group Company, Prothena shall (with the reasonable cooperation of Elan) use its commercially reasonable efforts to have any member of the Elan Group removed as a guarantor of, or an obligor with respect to, any Elan Group Company Guarantee. In connection therewith, Prothena undertakes to Elan at any time and from time to time on or after Completion to execute and deliver (or procure the execution and delivery by another Prothena Group Company of) all such instruments of assumption and acknowledgement or take such other action as Elan may reasonably request in order to effect the release and discharge in full of each Elan Group Company from any Elan Group Company Guarantee to which it is a party.

 

9.2. For so long as and to the extent that any release from an Elan Group Company Guarantee (other than those referred to at sub-clause 9.1 above) has not been obtained, Prothena shall:

 

  9.2.1. ensure that no Prothena Group Company shall enter into any further commitment or obligation, other than in respect of existing contractual arrangements or pursuant to Applicable Law, which would increase any Elan Group Company’s actual or contingent liability under any such Elan Group Company Guarantee or any future guarantee of any Elan Group Company;

 

  9.2.2. use its best endeavours to ensure that no third party or Prothena Group Company shall have recourse to any such Elan Group Company Guarantee; and

 

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  9.2.3. indemnify Elan (for itself and as trustee for each Elan Group Company) on an after-Tax basis from and against any and all Liabilities and Costs arising in respect of any event or circumstance either before, on or after Completion under or by reason of that Elan Group Company Guarantee (whether as a result of any breach by any Prothena Group Company of its obligations to which such Elan Group Company Guarantee relates or otherwise).

 

9.3. Elan shall (with the reasonable cooperation of Prothena) use its commercially reasonable efforts to have any member of the Prothena Group removed as a guarantor of, or an obligor with respect, to any Prothena Group Company Guarantee. In connection therewith, Elan undertakes to Prothena at any time and from time to time on or after Completion to execute and deliver (or procure the execution and delivery by another Elan Group Company) of all such instruments of assumption and acknowledgements or take such other action as Prothena may reasonably request in order to effect the release and discharge in full of each member of the Prothena Group from any Prothena Group Company Guarantee to which it is a party.

 

9.4. For so long as and to the extent that any release from a Prothena Group Company Guarantee has not been obtained, Elan shall:

 

  9.4.1. ensure that no Elan Group Company shall enter into any further commitment or obligation, other than in respect of existing contractual arrangements or pursuant to Applicable Law, which would increase any Prothena Group Company’s actual or contingent liability under any such Prothena Group Company Guarantee or any future guarantee of any Prothena Group Company;

 

  9.4.2. use its reasonable endeavours to ensure that no third party or Elan Group Company shall have recourse to any such Prothena Group Company Guarantee; and

 

  9.4.3. indemnify Prothena (for itself and as trustee for each Prothena Group Company) on an after-Tax basis from and against any and all Liabilities and Costs arising in respect of any event or circumstance either before, on or after Completion under or by reason of that Prothena Group Company Guarantee (whether as a result of any breach by any Elan Group Company of its obligations to which such Prothena Group Company Guarantee relates or otherwise).

 

9.5. The provisions of Schedule 3 (Provisions Relating to Claims under the Mutual Indemnities) shall apply in relation to the making of any claim under any of the indemnities given under this clause 9.

 

10. CONTRACTUAL ARRANGEMENTS

 

10.1. With the exception of any Elan Group Company Guarantee in relation to the assignment or sublease of the Lease to a Prothena Group Company, if there are any agreements or contractual arrangements with third parties which had been entered into by any Elan Group Company in relation to matters exclusively affecting the Prothena Business or the business of any Prothena Group Company, or by any Prothena Group Company in relation to matters exclusively affecting the Elan Business or the business of any Elan Group Company, in each case, which are wholly or partly unperformed (with the exception of any Elan Group Company Guarantee in relation to the assignment or sublease of the Lease to a Prothena Group Company) (any such agreement, an Outstanding Agreement ), Elan and Prothena shall co-operate and use their best efforts to procure, prior to Completion or, in any event, as promptly as possible after Completion, the entry into of novation agreements or assignments on terms to be agreed with the relevant third party, if necessary, in relation to each of the Outstanding Agreements, and each of Elan and Prothena shall procure that any of its respective Group companies which is party to such Outstanding Agreement, will join in the relevant novation agreement or assignment; provided, however, that (i) in connection with the foregoing, all agreements required to be executed solely between Elan and Prothena shall be executed prior to Completion, and, to the extent possible, all agreements required to be executed between and among Elan, Prothena and one or more third parties shall be executed prior to Completion, and (ii) except to the extent expressly provided in any of the Transaction Agreements or as otherwise agreed between Elan and Prothena, neither Elan nor Prothena shall be obligated to (a) contribute a material amount of capital or pay any material consideration in any form (including providing any letter of credit, guarantee or other financial accommodation) to any Person in order to obtain or make such novation or assignment, or (b) incur any material obligation or grant any material concession for the benefit of any member of the Other Group; and provided further, however, that, such best efforts:

 

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  10.1.1. on the part of the company transferring the Outstanding Agreement (the Transferring Company ), shall in no event require the Transferring Company to do more than agreeing (acting reasonably) and entering into the novation agreement or assignment contemplated above, procuring that any relevant Group company does likewise and bearing such Transferring Company’s own Costs and the Costs of any Group company in connection with such novation; and

 

  10.1.2. on the part of the company assuming the Outstanding Agreement (the Receiving Company ), shall in no event require the Receiving Company to do more than paying or performing any accrued liability or obligation which is properly required to be paid or performed as a condition of such novation, agreeing (acting reasonably) and entering into the novation agreement or assignment contemplated above (including giving any new guarantee reasonably required in respect thereof) and procuring that any relevant Group company does likewise and bearing such Receiving Company’s own Costs and the Costs of any Group company and the reasonable Costs of any relevant third party in connection with such novation, assignment and/or guarantee.

 

10.2. In relation to each Outstanding Agreement that has not been resolved prior to Completion, pending the entry into of a novation agreement or assignment in respect of such Outstanding Agreement (with the exception of any Elan Group Company Guarantee in relation to the assignment or sublease of the Lease to a Prothena Group Company):

 

  10.2.1. the Transferring Company shall hold the benefit of such Outstanding Agreement on trust for the Receiving Company absolutely and, in addition, the Transferring Company retaining such Outstanding Agreement shall, insofar as reasonably possible and to the extent permitted by Applicable Law, treat such Outstanding Agreement in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by such Receiving Company, in order to place such Receiving Company in a substantially similar position as if such Outstanding Agreement had been novated, transferred, assigned or assumed as contemplated hereby and so that all the benefits and burdens relating to such Outstanding Agreement, as the case may be, including use, risk of loss, potential for gain, and dominion, control and command over such Outstanding Agreement, as the case may be, and all obligations and Liabilities related thereto, shall inure from and after Completion to such Receiving Company;

 

  10.2.2. the Transferring Company shall, if so required by the Receiving Company in writing, assign the benefit of the Outstanding Agreement to such Receiving Company insofar as such Transferring Company is permitted to do so pursuant to the Outstanding Agreement or any Third Party Consent required, and, to the extent such Transferring Company is not able so to assign any benefit of any Outstanding Agreement which is a licence of Intellectual Property Rights or know-how under which such Transferring Company is entitled to sub-license to such Receiving Company, such Transferring Company shall, if so required by such Receiving Company in writing, sub-license to such Receiving Company under that Outstanding Agreement to the extent such Transferring Company is able so to do;

 

  10.2.3. unless and until any assignment or sub-licence pursuant to sub-clause 10.2.2 above has taken place, the Transferring Company shall take such action as the Receiving Company may reasonably require in writing to enforce for the benefit of that company such Outstanding Agreement against the other parties to such Outstanding Agreement or to defend or settle for the benefit of such Receiving Company any action or claim brought or made by any Person entitled to the benefit of such Outstanding Agreement at the cost of the Receiving Party; and

 

  10.2.4. save as is otherwise specifically provided in this Agreement in relation to Costs, Elan or Prothena as the case may be (being either itself, or the parent of, the Receiving Company) shall pay and indemnify the other (for itself and as trustee for any other Elan Group Company or Prothena Group Company (as applicable)) on an after Tax basis against all claims, demands, actions, Losses, Liabilities and expenses suffered or incurred by the Transferring Company or any Elan Group Company or Prothena Group Company (as applicable) in pursuance of this clause or otherwise in relation to such Outstanding Agreement.

 

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10.3. If there are any agreements or contractual arrangements with third parties which have been entered into by any Elan Group Company or by any Prothena Group Company in relation to matters which affect both the Elan Business and the Prothena Business, or have been entered into by both an Elan Group Company and by a Prothena Group Company each in respect of its respective business (any such agreement or contractual arrangement, a Group Contract ), then Elan and Prothena shall co-operate and use all their best efforts to procure, prior to Completion or, in any event, as promptly as possible after Completion, that such Group Contracts, to the extent reasonable and permitted by Applicable Law and the terms of such Group Contract, (i) are assigned in part to the applicable member(s) of the applicable Group, if so assignable, or are appropriately amended so that each Party or the members of the respective Groups shall be entitled to the rights and benefits of such Group Contract from and after Completion, and shall assume the related portion of any Liabilities from and after Completion, inuring to their respective businesses, in each case, so that such Group Contract represents, as a legal and economic matter, new separate contracts between each of the Elan Group and Prothena Group, on the one hand, and the applicable third party, on the other hand, from and after Completion; or (ii) are terminated as soon as possible and replaced by such separate agreements or contractual arrangements as may be considered necessary or appropriate between such third parties, on the one hand, and the relevant Elan Group Company and Prothena Group Company, on the other hand; provided, that the benefits and burdens of each Group Contract from and after Completion shall be allocated between the Elan Group and Prothena Group pursuant to the terms of this Agreement; provided, however, that, (a) except to the extent expressly provided in any of the Transaction Agreements or as otherwise agreed between Elan and Prothena, neither Elan nor Prothena shall be obligated to contribute a material amount of capital or pay any material consideration in any form (including providing any letter of credit, guarantee or other financial accommodation) to any Person in order to obtain or make such termination and replacement or assignment, or (b) to incur any material obligation or grant any material concession for the benefit of any member of the Other Group; and provided further, however, that, if such assignment or execution of separate contracts is not consummated, Elan and Prothena shall procure, to the maximum extent permitted by Applicable Law and the terms of such Group Contract:

 

  10.3.1. that appropriate sharing arrangements are entered into between the relevant Elan Group Company and the relevant Prothena Group Company in relation to such agreements or contractual arrangements so as to cause a member of the Elan Group or the Prothena Group, as the case may be, to receive the rights and benefits from and after Completion of that portion of each Group Contract that relates to the Prothena Business or the businesses retained by Elan, as the case may be (in each case, to the extent so related), as if such Group Contract had been assigned as of Completion to a member of the applicable Group pursuant to this clause 10.3, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group as of Completion pursuant to this clause 10.3 (for the avoidance of doubt, the relevant Elan Group Company and Prothena Group Company shall treat the applicable Group Contract for all purposes as if such Group Contract were two separate contracts); or

 

  10.3.2. that, if both an Elan Group Company and a Prothena Group Company are already customers under such Group Contract, the supplier under the relevant Group Contract has agreed to treat such Group Contract as if it were two separate agreements until expiry, one with each customer.

 

10.4. Notwithstanding anything herein to the contrary, with respect to each Outstanding Agreement and Group Contract, each of Elan and Prothena shall cause its respective Affiliates to treat for all Tax purposes the portion of the benefits and burdens of each Outstanding Agreement and Group Contract inuring to its respective business pursuant to the terms of this Agreement as owned by, and/or Liabilities of, such Party not later than Completion, and shall neither report nor take any Tax position (on a Tax return or otherwise) inconsistent with such treatment, unless required by Applicable Law.

 

10.5.

Save as is otherwise specifically provided in this Agreement in relation to Costs, each of Elan and Prothena (as the case may

 

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  be) shall pay to and indemnify the other (for itself and as trustee for any other Elan Group Company or Prothena Group Company (as applicable)) on an after Tax basis against all claims, demands, actions, Losses, Costs and Liabilities which that other or any Prothena Group Company or Elan Group Company (as the case may be) suffers or incurs in relation to those agreements or contractual arrangements referred to in this clause 10.5 which properly relate to the business of the other or any other Prothena Group Company or Elan Group Company (as the case may be) including, without limitation, those Group Contracts under which both an Elan Group Company and a Prothena Group Company are a customer in circumstances where the relevant supplier seeks to impose Liability on one customer for the goods and/or services supplied by such supplier to, or the default of the other customer under, such Group Contract. Pending the replacement of any such agreements or contractual arrangements by separate agreements or contractual arrangements, the relevant Elan Group Company or Prothena Group Company (as the case may be) shall hold the benefit of such agreements or contractual arrangements on trust for itself (and any other Elan Group Company or any other Prothena Group Company as the case may be) and (except to the extent that such benefit comprises a licence of any Intellectual Property Rights or know-how) for the other (and any other Prothena Group Company or any other Elan Group Company as the case may be) in each case to the relevant extent. The provisions of Schedule 3 (Provisions Relating to Claims under the Mutual Indemnities) shall apply in relation to the making of any claim under any of the indemnities given under this clause 10.5.

 

11. TAX

 

11.1. The Parties agree that, any claim or potential claim in respect of any Liability relating to Tax shall be determined and calculated solely in accordance with the Tax Matters Agreement.

 

11.2. The Parties agree that Elan will, with such assistance from Prothena as Elan may reasonably require, be responsible for claiming relief from stamp duty under section 80 of the Stamp Duties Consolidation Act, 1999 in respect of the transfer of the Transfer Shares.

 

11.3. Each of Elan and Prothena will use all reasonable endeavours to make and enforce such arrangements as will enable the conditions for relief from stamp duty under section 80 of the Stamp Duties Consolidation Act, 1999 in respect of the transfer of the Transfer Shares to be fulfilled.

 

11.4. For U.S. federal income Tax purposes, this Agreement shall constitute a “plan of reorganization” (as such term is defined in U.S. Treasury Regulation Section 1.368-2(g)) for the Prothena Transfer and the Allotment.

 

12. DEALINGS BETWEEN GROUPS

 

12.1. Access to books and records and facilities

 

  12.1.1. Except in the case of an adversarial Action or threatened adversarial Action related to a request hereunder by any member of either the Elan Group or the Prothena Group against any member of the Other Group (which shall be governed by such discovery rules as may be applicable thereto), Each Party (the Providing Party ) shall for a period of 8 years from the date hereof (i) give to the other (the Requesting Party ) reasonable access during normal business hours (unless otherwise agreed) to, and the right to copy, records and books in hard copy form or (ii) otherwise provide Information, as soon as reasonably practicable after written request, that the Requesting Party reasonably requests, in each case, belonging to, or under the control of, the Providing Party or any of its subsidiaries and the right to question employees of the Providing Party:

 

  (1) for the purpose of complying with any Applicable Law, Judgement, request of a Governmental Authority, reporting, filing, audit, or litigation obligation, or with its Tax related obligations; or

 

  (2) to the extent that the Requesting Party has a reasonable requirement for such access or questioning and the Providing Party gives its consent to such access or questioning, such consent not to be unreasonably withheld or delayed,

except to the extent such access is restricted by law or the terms of any agreement or is confidential or subject to a claim for legal professional privilege. The Requesting Party shall use any Information received pursuant to this clause 12.1.1 solely to the extent reasonably necessary to satisfy the applicable obligations or requirements described in clauses 12.1.1(1) and 12.1.1(2) and shall otherwise take reasonable steps to protect such Information. Nothing in this clause 12.1.1 shall be construed as obligating a Party to create Information not already in its possession or control.

 

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12.2. Provision of Financial Information

 

  12.2.1. Prothena agrees to provide, or procure the provision of, to Elan (or any Elan Group Company), to the extent necessary, such financial Information as Elan (or any Elan Group Company) may reasonably require and within such timescales as Elan (or any Elan Group Company) may reasonably request in order to prepare its monthly management accounts and its full year audited consolidated accounts for the year ending 31 December 2012. In particular, without limitation to the foregoing, Prothena shall, in accordance with a timetable for the provision of such Information which shall be no more onerous than that previously adopted by Elan (or any Elan Group Company) for prior financial periods, provide or procure the provision to Elan (or any Elan Group Company) of, for the Prothena Business and individually for each relevant Prothena Group Company, the same type of accounting Information, and to the same level of detail and in the same format and manner, as the Prothena Business or the relevant Prothena Group Company has provided to Elan (or any Elan Group Company) prior to the date hereof. Subject as aforesaid, Information shall, if requested by Elan (or any Elan Group Company), be provided in such format as was previously adopted by Elan (or any Elan Group Company). Prothena agrees to provide to Elan (or any Elan Group Company) such additional Information and within such timescale as may be reasonably required by Elan (or any Elan Group Company) in each case subject as provided above.

 

  12.2.2. Elan agrees to provide, or procure the provision of, to Prothena (or any Prothena Group Company), to the extent necessary, such financial and other Information as Prothena (or any Prothena Group Company) may reasonably require and within such timescales as Prothena (or any Prothena Group Company) may reasonably request in order to prepare its monthly management accounts, and its consolidated accounts for the year ending 31 December 2012. In particular, without limitation to the foregoing, and without prejudice to the Transitional Services Agreement, Elan shall, in accordance with a timetable for the provision of such Information as will enable Prothena to comply with its periodic reporting and disclosure requirements under Applicable Law, provide or procure the provision to Prothena (or any Prothena Group Company) of, for the Prothena Business and individually for each relevant Prothena Group Company, the type of accounting Information, and to the level of detail and in the format and manner, as Prothena reasonably requires to enable such compliance, to the extent such Information is within the possession and Control of Elan or any Elan Group Company rather than held by Prothena or any member of the Prothena Group itself. Such Information shall, if requested by Prothena (or any Prothena Group Company), be provided in such format as was previously adopted by Elan (or any Elan Group Company) in respect of the equivalent Information or such other format as Prothena may reasonably request. Elan agrees to provide to Prothena (or any Prothena Group Company) such additional Information and within such timescale as may be reasonably required by Prothena (or any Prothena Group Company).

 

  12.2.3. Elan and Prothena agree that they shall consult and co-operate with each other in relation to the finalisation of their respective Group members’ full year audited accounts for the year ending 31 December 2012.

 

  12.2.4. The Requesting Party shall use any Information received pursuant to this clause 12.2 solely to the extent reasonably necessary to satisfy the applicable obligations or requirements described in this clause 12.2 and shall otherwise take reasonable steps to protect such Information.

 

12.3. Information Considerations

 

  12.3.1. In the event that any Party determines that the exchange of any Information pursuant to clause 12.1.1 is reasonably likely to violate any Applicable Law or binding agreement, or waive or jeopardize any attorney-client privilege, or attorney work product protection, such Party shall not be required to provide access to or furnish such Information to the other Party; provided, however, that the Parties shall take all reasonable measures to permit compliance with clause 12.1.1 in a manner that avoids any such harm or consequence. Elan and Prothena intend that any provision of access to or the furnishing of Information that would otherwise be within the ambit of any legal privilege shall not operate as a waiver of such privilege.

 

  12.3.2. After Completion, each of Elan and Prothena shall maintain in effect systems and controls reasonably intended to enable the members of the other Group to satisfy their respective known reporting, accounting, disclosure, audit and other obligations.

 

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  12.3.3. Any Information owned by a member of one Group that is provided to a requesting Party pursuant to clause 12.1.1 shall be deemed to remain the property of the providing Party. Except as specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such Information.

 

  12.3.4. To facilitate the possible exchange of Information pursuant to this clause 12 and other provisions of this Agreement from and after Completion, each of the Parties agrees to use all reasonable efforts to retain all Information in accordance with its record and retention policy as in effect immediately prior to Completion or as modified in good faith thereafter.

 

  12.3.5. No Party shall have any liability to any other Party in the event that any Information exchanged or provided pursuant to this Agreement that is an opinion, estimate or forecast, or that is based on an opinion, estimate or forecast, is found to be inaccurate, in the absence of willful misconduct by the Party providing such Information. No Party shall have any liability to any other Party if any Information is destroyed after all reasonable by such Party to comply with the provisions of clause 12.3.4.

 

12.4. Charges

 

     The Requesting Party shall reimburse to the Providing Party such reasonable and documented third party Costs as the Providing Party may incur in relation to the exercise of the rights specified in clause 12.1 and 12.2.

 

13. INSURANCE

 

13.1. Without prejudice to any entitlement of a Prothena Group Company under existing insurance arrangements in place in respect of the Pre-Demerger Elan Group, Prothena confirms that it will put in place, with effect from Completion (subject to clause 13.3), for the benefit of the Prothena Group, separate arrangements for the insurance required by it and the other Prothena Group Companies, including but not limited to the categories of insurance listed below:

 

  13.1.1. workers compensation;

 

  13.1.2. property;

 

  13.1.3. business interruption;

 

  13.1.4. travel;

 

  13.1.5. public liability;

 

  13.1.6. products liability;

 

  13.1.7. Clinical Trials;

 

  13.1.8. directors and officers liability; and

 

  13.1.9. any other insurance cover deemed prudent by the Prothena Board.

 

13.2. The first insurance period in respect of such separate insurance arrangements will be the period from Completion to 31 December 2013.

 

13.3. Notwithstanding clause 13.1, all Clinical Trials being conducted by any member of the Pre-Demerger Elan Group, that are ongoing at Completion, shall continue to be covered by the relevant Elan Clinical Trial Insurance Policy which was in place at the commencement of such Clinical Trial, until the conclusion of that Clinical Trial.

 

14. CONSENTS

 

    

Elan and Prothena shall co-operate and use their best efforts to obtain all Third Party Consents and Governmental Approvals

 

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  on or prior to Completion and to ensure that the Costs associated with the acquisition of any such Third Party Consents or Governmental Approvals (including, without limitation, any sums paid or payable to third parties in connection therewith) are minimised to the fullest extent practicable; provided, however, that, (i) in connection with the foregoing, all agreements required to be executed solely between Elan and Prothena shall be executed prior to Completion, and, to the extent possible, all agreements required to be executed between and among Elan, Prothena and one or more third parties shall be executed prior to Completion, and (ii) except to the extent expressly provided in any of the Transaction Agreements or as otherwise agreed between Elan and Prothena, neither Elan nor Prothena shall be obligated to (a) contribute a material amount of capital or pay any material consideration in any form (including providing any letter of credit, guarantee or other financial accommodation) to any Person in order to obtain or make such Consent, or (b) incur any material obligation or grant any material concession for the benefit of any member of the Other Group.

 

14.1. Both Parties shall use their best efforts to ensure that the terms upon which any Third Party Consents or Governmental Approvals are given are not breached and that such Third Party Consents or Governmental Approvals are not withdrawn whilst still required.

 

14.2. Nothing in any of the Transaction Agreements shall be deemed to require the transfer of any assets (an Outstanding Asset ) or the assumption of any Liabilities (an Outstanding Liability ) which by their terms or operation of Applicable Law cannot be transferred or assumed; provided, however, that the Parties and their respective Subsidiaries shall co-operate and use their best efforts to obtain, prior to Completion and, in any event, as promptly as possible thereafter, any necessary Consents or Governmental Approvals for the transfer of all assets and the assumption of all Liabilities contemplated to be transferred and assumed pursuant to the Transaction Agreements.

 

14.3. Other than with respect to Outstanding Agreements, the treatment of which shall solely be subject to clause 10.1 and clause 10.2, in relation to each Outstanding Asset and each Outstanding Liability, pending the assignment or assumption in respect thereof, (i) the Party whose Group retains such Outstanding Asset shall hold the benefit of such Outstanding Asset on trust for the other Party from and after Completion and (ii) the Party whose Group is intended to assume such Outstanding Liability shall pay or reimburse the member of the other Group retaining such Liability (at no net Tax cost to such retaining member) for all amounts paid or incurred in connection with the retention of such Liability to the extent related to such other Party’s business from and after Completion. In addition, the Party whose Group retains such Outstanding Asset or Outstanding Liability shall, insofar as reasonably possible and to the extent permitted by Applicable Law, treat such Outstanding Asset or Outstanding Liability in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the Party to whose Group such Outstanding Asset is to be transferred or by the Party whose Group will assume such Outstanding Liability in order to place such Party, insofar as reasonably possible, in the same position as if such Outstanding Asset or Outstanding Liability had been transferred or assumed as contemplated hereby and so that all the benefits and burdens relating to such Outstanding Asset or Outstanding Liability, use, risk of loss, potential for gain, and dominion, control and command over such Outstanding Asset or Outstanding Liability, are to inure from and after Completion to the member or members of the Group entitled to the receipt of such Outstanding Asset or required to assume such Outstanding Liability.

 

14.4. Notwithstanding anything herein to the contrary, with respect to each Outstanding Asset and Outstanding Liability, each of Elan and Prothena shall cause its respective Affiliates to treat for all Tax purposes the portion of the benefits and burdens of each Outstanding Asset or Outstanding Liability inuring to its respective business pursuant to the terms of this Agreement as owned by, and/or Liabilities of, such Party not later than Completion, and shall neither report nor take any Tax position (on a Tax return or otherwise) inconsistent with such treatment, unless required by Applicable Law.

 

15. EMPLOYEE BENEFITS

 

15.1. Healthcare Benefits

 

     The provisions of Schedule 1, Part A (Healthcare Benefits) sets out the separation arrangements proposed in relation to healthcare benefits.

 

15.2. Severance Benefits

 

     The provisions of Schedule 1, Part B (Severance Benefits) sets out the separation arrangements proposed in relation to severance benefits.

 

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15.3. Pension Benefits

 

     The provisions of Schedule 1, Part C of (Pension Benefits) sets out the separation arrangements proposed in relation to the Elan Pension Schemes.

 

15.4. Share Plans

 

     The provisions of Schedule 1, Part D (Share Plans) sets out the separation arrangements proposed in relation to the Elan Share Plans.

 

15.5. Compensation Arrangements

 

     The provisions of Schedule 1, Part E (Compensation Arrangements) sets out the separation arrangements proposed in relation to compensation arrangements.

 

16. TRADE PAYABLES AND ACCRUALS

 

     The Parties agree that the provisions of Schedule 4 shall apply in respect of the Trade Payables and Accruals.

 

17. FURTHER ASSURANCE

 

17.1. General

 

  17.1.1. Elan shall use its reasonable endeavours to procure the entering into by the respective parties thereto of such further agreements or documents as shall be necessary to give effect to the Pre-Demerger Restructuring as set out in the Step Plan, if and to the extent that such agreements or documents have not have been entered into prior to the date of this Agreement and are envisaged by the Step Plan as occurring prior to Completion.

 

  17.1.2. The Parties undertake to co-operate in good faith following Completion to ensure that they and their respective Groups do such acts and things as may reasonably be necessary for the purpose of giving to Elan, Prothena and their respective Groups the full benefit of all relevant provisions of the Transaction Agreements including without limitation by executing and delivering (or procuring the execution or delivery of) all further documents, required by any Applicable Law or otherwise required to vest the full benefit of and register the right, title and interest in, and assisting in obtaining, defending and enforcing, any Intellectual Property Rights transferred pursuant to the Transaction Agreements.

 

  17.1.3. The Parties shall use all reasonable endeavours following Completion to procure that (and to procure that the members of their respective Groups use all reasonable endeavours to procure that) any necessary third party shall execute such documents and do such acts and things as may reasonably be required for the purpose of giving to Prothena and Elan the full benefit of all relevant provisions of this Agreement.

 

  17.1.4. Without prejudice to any other provision of this Agreement, except in the case of an adversarial Action or threatened adversarial Action by any Elan Group Company or the Prothena Group against any member of the Other Group, the Parties undertake to use reasonable endeavours following Completion to co-operate, and ensure that their respective Groups co-operate, with each other, and use reasonable endeavours to make available to such other Party the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group (whether as witnesses or otherwise) in relation to the conduct of any threatened or pending Action, inquiries from Governmental Authorities (including any Tax authority), investigations, audits or other Proceedings of a like nature (an Investigation ) where:

 

  (1) the other Party has reasonably requested such cooperation; and

 

  (2) co-operating in such manner would not significantly interfere with the business of, or significantly adversely affect any material interest, such Group.

 

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       The requesting Party shall bear all Costs and expenses in connection therewith.

 

  17.1.5. Nothing in this Agreement shall require any Party to act in breach of any provision of the Data Protection Act 1988 (as amended) (the DPA ) and each Party shall only be required to fulfil its obligations under this Agreement to the extent permissible under the DPA. Without prejudice to the foregoing, neither Party shall be required to disclose or make available to the other any Information the disclosure or making available of which would or might, in the reasonable opinion of the disclosing Party, cause the disclosing Party to be in breach of any duty of confidentiality (whether arising at common law or by statute) owed to any Person other than the Party requesting disclosure or any of its subsidiaries.

 

17.2. Transaction Agreements

 

  17.2.1. Prothena shall procure the due performance of the obligations of the members of the Prothena Group under the Transaction Agreements to which they are a party.

 

  17.2.2. Elan shall procure the due performance of the obligations of the members of the Elan Group under the Transaction Agreements to which they are party.

 

17.3. Wrong Pocket

 

  17.3.1. If within 4 years after Completion, it is found that any property, business or other asset (tangible or intangible and including rights pursuant to any Contracts, arrangements and undertakings), which were either used prior to Completion exclusively in the Prothena Business or any of the interests in the Prothena Group Companies (which shall include any assets required to be transferred pursuant to any asset transfer agreement or similar agreement executed following the date hereof between any Elan Group Company, on the one hand, and any Prothena Group Company, on the other hand, any such agreement an Asset Transfer Agreement ), are in the ownership of any Elan Group Company, and provided that such finding is notified to Elan by Prothena within 4 years after Completion which it shall be obliged to do, Elan shall transfer or assign or procure that any other Elan Group Company shall transfer or assign its interest in such property, business or asset to Prothena or such other Prothena Group Company as Prothena shall nominate, to the extent practicable, for no consideration and, on such issue of ownership coming or being brought to the attention of Elan or the relevant Elan Group Company, then Elan or such Elan Group Company shall immediately procure that the relevant interest in such property, business or asset is preserved and not exploited pending its transfer or assignment to Prothena or another Prothena Group Company, PROVIDED THAT if the relevant property, business or asset was not used prior to Completion exclusively in the Prothena Business but was also used in part in the Elan Business, then the foregoing provisions shall be modified as appropriate so as to transfer and assign only the relevant part of the property, business or asset to the relevant Prothena Group Company by severance or some other appropriate means, to the extent practicable.

 

  17.3.2. If within 4 years after Completion, it is found that any property, business or other asset (tangible or intangible and including rights pursuant to any Contracts, arrangements and undertakings), which were either used prior to Completion exclusively in the Elan Business or properly should be regarded as part of the Elan Business or any of the interests in the Elan Group Companies (which shall include any assets required to be transferred pursuant to any Asset Transfer Agreement), are in the ownership of any Prothena Group Company, and provided that such finding is notified to Prothena by Elan within 4 years after Completion which it shall be obliged to do, Prothena shall transfer or assign or procure that any other Prothena Group Company shall transfer or assign its interest in such property, business or asset to Elan or such other Elan Group Company as Elan shall nominate, to the extent practicable, for no consideration and, on such issue of ownership coming or being brought to the attention of Prothena or the relevant Prothena Group Company, then Prothena or such Prothena Group Company shall immediately procure that the relevant interest in such property, business or asset is preserved and not exploited pending its transfer or assignment to Elan or another Elan Group Company, PROVIDED THAT if the relevant property, business or asset was not used prior to Completion exclusively in the Elan Business but was also used in part in the Prothena Business, then the foregoing provisions shall be modified as appropriate so as to transfer only the relevant part of the property, business or asset to the relevant Elan Group Company by severance or some other appropriate means, to the extent practicable.

 

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  17.3.3. For U.S. federal income Tax purposes, any transfer, assignment or procurement pursuant to clause 17.3.1 or clause 17.3.2 shall be treated as occurring immediately prior to the Allotment.

 

18. NON SOLICITATION

 

     During the term of the Transitional Services Agreement and for 12 months thereafter, Elan shall not, and shall procure that each Elan Group Company shall not, without the prior written consent of Prothena, directly or indirectly, employ, solicit or contact with a view to his/her employment, any Prothena Employee, provided that the foregoing shall not preclude any Elan Group Company from hiring any such Prothena Employee who (a) initiates discussions with the Elan Group Company regarding such employment without any direct or indirect solicitation by the Elan Group Company, (b) has had his or her employment terminated by Prothena or such of its Affiliates prior to commencement of employment discussions between the Elan Group Company and such Prothena Employee or (c) responds to any general solicitation placed by the Elan Group Company (including, without limitation, any recruitment efforts conducted by any recruitment agency, provided that neither the receiving Party nor any of its Affiliates have directed such recruitment efforts at such person).

 

18.1. During the term of the Transitional Services Agreement and for 12 months thereafter, Prothena shall not, and shall procure that each Prothena Group Company shall not, without the prior written consent of Elan, directly or indirectly, employ, solicit or contact with a view to his/her employment, any Elan Employee or any Former Elan Employee.

 

19. PAYMENTS

 

19.1. Payments due to be made under this Agreement shall, if not paid within 30 Business Days of the due date, carry interest at a rate of 2% above EURIBOR for the period from the date falling 30 Business Days after the due date to the date of actual payment

 

19.2. Payments due to be made under this Agreement shall be free and clear of all deductions, withholdings, set-offs, or counterclaims whatsoever, except as may be required by law.

 

20. CONFIDENTIALITY

 

20.1. For the purposes of this clause 20:

 

  20.1.1. “Confidential Information” means:

 

  (1) (in relation to the obligations of Elan under this clause 20) any Information received or held by Elan (or any of its Representatives) where such Information relates to the Prothena Group, including any Information provided to the Elan Group pursuant to clause 12;

 

  (2) (in relation to the obligations of Prothena under this clause 20) any Information received or held by Prothena (or any of its Representatives) where such Information relates to the Elan Group including any Information provided to the Prothena Group pursuant to clause 12; and

 

  (3) Information relating to the provisions and subject matter of, and negotiations leading to, the Transaction Agreements and any other document referred to herein, and includes not only written Information but Information transferred or obtained orally, visually, electronically or by any other means;

 

  20.1.2. “Representatives” means, in relation to a Party, its respective Affiliates and the directors, officers, employees, agents, external legal advisers, accountants, consultants and financial advisers of that Party and/or of its respective Affiliates.

 

  20.1.3. Each Party undertakes to the other that it shall (and shall procure that each of its Representatives shall) maintain Confidential Information in confidence and not disclose that Confidential Information to any Person except as permitted by this clause 20 or with the prior written approval of the other Party.

 

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20.2. The confidentiality obligation under clause this clause 20 shall not apply if and to the extent that:

 

  20.2.1. such disclosure is required by any Applicable Law or by any stock exchange or any Governmental Authority (including, for the avoidance of doubt, any Tax authority) having applicable jurisdiction (provided that, in such circumstances, the disclosing Party shall use its reasonable endeavours to first inform the other of its intention to disclose such Information and take into account the reasonable comments of the other Party unless and to the extent prohibited by any Applicable Law) and limit the disclosure of such Confidential Information to the minimum extent required by such Applicable Law;

 

  20.2.2. the Confidential Information concerned has come into the public domain other than through its fault (or that of its Representatives) or the fault of any Person to whom such Confidential Information has been disclosed in accordance with this clause 20; or

 

  20.2.3. the disclosure is required for the purpose of any Proceedings arising out of the Transaction Agreements or any other document referred to herein.

 

20.3. Each Party undertakes that it (and its Affiliates) may and shall only disclose Confidential Information to its Representatives if it is reasonably required for the purposes of exercising the rights or performing the obligations under the Transaction Agreements or the other documents referred to herein, or in connection with a matter which that Party has demonstrated falls within clauses 20.3, and, in each case, only if the Representatives are informed of the confidential nature of the Confidential Information.

 

20.4. Each Party undertakes not to say anything publicly or make any announcement which is likely to be harmful to the other Party’s (including that Party’s Affiliates) business or reputation or which may reasonably lead any Person to cease to deal with the other Party or its Affiliates on substantially the same terms as those previously offered or at all (except as may be required by any Applicable Law).

 

20.5. The provisions of this clause 20 shall survive termination and/or Completion.

 

21. SIGNS; USE OF COMPANY NAMES

 

21.1. As soon as reasonably practicable after Completion but in any event within six months thereafter, Prothena will, at its own expense, remove any and all exterior signs and other identifiers located on any of its assets, property or premises or on the assets property or premises used by any member of the Prothena Group or its Subsidiaries which refer or pertain to the Elan Marks or which include the Elan Marks.

 

21.2. As soon as is reasonably practicable after Completion but in any event within six months thereafter, Prothena will, and will cause each member of the Prothena Group and its Subsidiaries to, remove, at their own expense, from all letterhead, envelopes, invoices and other communications media of any kind, the Elan Marks (except that Prothena shall not be required to take any such action with respect to materials in the possession of customers).

 

22. DISPUTE RESOLUTION

 

     The resolution of any disputes arising in relation to this Agreement shall be as follows:

 

22.1. By referring the matter in dispute to the Separation Committee in the first instance.

 

22.2. If after the expiry of 30 Business Days from such referral the matter remains unresolved, then the matter shall be referred to the CEO of each of Elan and Prothena who shall use all reasonable endeavours to resolve the dispute in accordance with the intentions behind this Agreement.

 

22.3. If after the expiry of 30 Business Days from the time the matter in dispute was referred to the CEO of each of Elan and Prothena the matter remains unresolved, the Parties shall follow the dispute resolution procedures set out in this clause.

 

  22.3.1. Any Party may, by a written notice served on the other Party in accordance with clause 24, request non-binding mediation of the dispute or difference. Unless otherwise agreed in writing between the Parties:-

 

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  (1) the mediator shall be nominated by the Centre for Effective Dispute Resolution ( CEDR ) in accordance with the rules of CEDR, and the mediation shall be conducted in accordance with the Model Mediation Procedure published by CEDR, in each case being the relevant rules for the time being and from time to time in force;

 

  (2) the Costs of the mediator shall be borne and discharged as to 50% by Elan and as to the remaining 50% by Prothena, and the Costs of all experts and any other third parties who, at the request of any Party, shall have been instructed in the mediation, shall be for the sole account of, and shall be discharged by, that Party;

 

  (3) the mediation shall be conducted in Dublin, Ireland, at a venue agreed upon by the Parties and the mediator or, failing such agreement, at a venue selected by the mediator in his discretion; and

 

  (4) the mediation shall commence not later than 20 Business Days following a request for mediation being made in accordance with the provisions of this clause 22.3.1.

 

  22.3.2. In the event that:-

 

  (1) having been so requested, the mediation does not commence within 20 Business Days of the request for mediation; or

 

  (2) a binding settlement in writing is not reached within a period of 60 Business Days after the delivery of a written request for mediation;

 

       and, in any such case, the dispute or difference referred to in this clause 22 remains unresolved, the Parties (or the relevant one of them) shall then be entitled to bring Proceedings and the provisions of clause 26 shall apply as regards any such unresolved dispute or difference.

 

23. ENTIRE AGREEMENT

 

23.1. The Transaction Agreements set out the entire agreement and understanding between the Parties in respect of the subject matter of this Agreement. It is agreed that:

 

  23.1.1. neither Party has entered into this Agreement or any other document referred to in this Agreement in reliance upon any statement, representation, warranty or undertaking of the other Party or any of its Connected Persons which is not expressly set out or referred to in this Agreement or such other document;

 

  23.1.2. neither Party shall have any claim or remedy in respect of misrepresentation (whether negligent or otherwise, and whether made prior to, and/or in, this Agreement) or untrue statement made by the other Party or any of its Connected Persons;

 

  23.1.3. save as expressly set out in this Agreement or in any other agreement or document referred to in this Agreement, neither Party shall owe any duty of care, nor have any Liability in tort or otherwise, to the other Party; and

 

  23.1.4. this clause shall not exclude any Liability for, or remedy in respect of, fraudulent misrepresentation by a Party or any of its Connected Persons.

 

23.2. The agreements and undertakings in this clause 23 are given by each Party on its own behalf and as agent for each of its Connected Persons. Each Party acknowledges that the other Party gives such agreements and undertakings as such agent with the full knowledge and authority of each of its respective Connected Persons. In this clause 23, “Connected Person” means, in each case, to the extent that they are involved on behalf of a Party, (i) a Party’s officers, employees, group undertakings, agents and advisers, (ii) officers, employees, agents and advisers of a Party’s group undertaking; and (iii) officers, employees and partners of any such agent or adviser or of any group undertaking of such an agent or adviser.

 

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24. NOTICES

 

24.1. Any notice or other communication to be given by one Party to the other under, or in connection with, this Agreement shall be in writing and signed by or on behalf of the Party giving it. It shall be served by sending it by fax to the number set out in clause 24.2 or delivering it by hand, or sending it by pre-paid recorded delivery, or registered post, to the address set out in clause 24.2 and in each case marked for the attention of the relevant Party set out in clause 24.2 (or as otherwise notified from time to time in accordance with the provisions of this clause 24. Any notice so served by hand, fax or post shall be deemed to have been duly given:

 

  24.1.1. in the case of delivery by hand, when delivered;

 

  24.1.2. in the case of fax, at the time of transmission; and

 

  24.1.3. in the case of prepaid recorded delivery, or registered post, at 10.00 am. on the second Business Day following the date of posting,

PROVIDED THAT in each case where delivery by hand or by fax occurs after 6.00 p.m. on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9.00 a.m. on the next following Business Day.

 

24.2. The addresses and fax numbers of the Parties for the purpose of clause 24.1 are as follows:

 

  (1) Elan:

Elan Corporation plc

Treasury Building

Lower Grand Canal Street

Dublin 2

Ireland

Tel.: +353 1 709 4000

Fax: +353 1 709 4713

Attention: William F. Daniel, Company Secretary

with a copy to (which shall not constitute notice):

A&L Goodbody

International Financial Services Centre

North Wall Quay

Dublin 1

Tel.: +353 1 649 2000

Fax: +353 1 649 2649

Attention: John Given/Darragh O’Dea

and

Cadwalader, Wickersham & Taft LLP

One World Financial Center

New York, NY 10281

USA

Tel.: +1 212 504 6000

Fax: + 212 504 6666

Attention: Christopher T. Cox

 

  (2) Prothena:

Prothena Corporation plc

650 Gateway Boulevard

South San Francisco

CA 94080

U.S.A.

 

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Tel.: +1 650-837-8550

Fax: + 2 650-837-8560

Attention: Dale Schenk, CEO

with a copy to (which shall not constitute notice):

Prothena Corporation plc

25-28 North Wall Quay

Dublin 1

Ireland

Tel.: +353 1 649 2000

Fax: +353 1 649 2649

Attention: John Given

 

24.3. A Party may notify the other Party to this Agreement of a change to its name, relevant addressee, address or fax number for the purposes of this clause 24 provided that such note shall only be effective on:

 

  24.3.1. the date specified in the notice as the date on which the change is to take place; or

 

  24.3.2. if no date is specified or the date specified is less than 5 Business Days after the date on which notice is given, the date falling 5 Business Days after notice of any change has been given.

 

25. ANNOUNCEMENTS

 

     Prior to Completion, the Parties shall consult together as to the terms of, the timetable for, and manner of publication of, any announcement to shareholders, option holders, employees, customers and suppliers or to a Regulatory Information Service or any other authorities or to the media or otherwise which either may desire or be obliged to make regarding this Agreement or the consummation of the Demerger.

 

26. GOVERNING LAW AND JURISDICTION

 

26.1. This Agreement is governed by and shall be construed in accordance with the laws of Ireland.

 

26.2. The courts of Ireland are to have exclusive jurisdiction to settle any dispute, whether contractual or non-contractual, arising out of or in connection with this Agreement. Any proceeding, suit or action arising out of or in connection with this Agreement or the negotiation, existence, validity or enforceability of this Agreement ( Proceedings ) shall be brought only in the courts of Ireland.

 

26.3. Each Party waives (and agrees not to raise) any objection, on the ground of forum non conveniens or on any other ground, to the taking of Proceedings in the courts of Ireland. Each Party also agrees that a Judgment against it in Proceedings brought in shall be conclusive and binding upon it and may be enforced in any other jurisdiction.

 

26.4. Each Party irrevocably submits and agrees to submit to the jurisdiction of the courts of Ireland.

 

27. MISCELLANEOUS

 

27.1. Assignment

 

     Save as expressly set out herein, neither of the Parties may assign any of its rights or obligations under this Agreement in whole or in part without the prior written approval of the other.

 

27.2. No waiver

 

     No waiver by a Party of a failure or failures by the other Party to perform any provision of this Agreement shall operate or be construed as a waiver in respect of any other or further failure whether of a like or different character.

 

27.3. Amendment

 

     Except where specifically provided, this Agreement may be amended only by an instrument in writing signed by duly authorised representatives of each of the Parties.

 

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27.4. No partnership or agency

 

     Nothing in this Agreement (or in any of the arrangements contemplated hereby) shall be deemed to constitute a partnership between the Parties or any of them, nor constitute any Party the agent of any other Party for any purpose.

 

27.5. Severability

 

     All the terms and provisions of this Agreement are distinct and severable, and if any term or provision is held or declared to be unenforceable, illegal or void in whole or in part by any court, regulatory authority or other competent authority it will, to that extent only, be deemed not to form part of this Agreement, and the enforceability, legality and validity of the remainder of this Agreement will not in any event be affected. The Parties shall then use all reasonable endeavours to agree to replace the unenforceable, illegal or void term or provision with a term or provision which is legal and enforceable and which has an effect that is as near as possible to the intended effect of the term or provision to be replaced.

 

27.6. Survival

 

     This Agreement (other than any obligations which have already been fully performed) remains in full force and effect following Completion.

 

27.7. Remedies Cumulative

 

     The provisions of this Agreement and the rights and remedies of the Parties are independent, cumulative and are without prejudice and in addition to any other rights or remedies which a Party may have whether arising under common law, equity, statute, custom or otherwise. The exercise by a Party of any one right or remedy under this Agreement, under statute, at law or in equity will not (unless expressly provided in this Agreement, under statute, at law or in equity) operate so as to hinder or prevent the exercise by that Party of any other right or remedy.

 

27.8. Costs

 

     Unless otherwise set forth in the Transaction Agreements, each Party to this Agreement will pay its own Costs and expenses of and incidental to the Transaction Agreements and the Demerger.

 

27.9. Termination

 

  27.9.1. Notwithstanding any other provision of this Agreement, Elan may in its absolute discretion by notice in writing to Prothena at any time prior to Completion, terminate this Agreement whereupon no Party shall have any claim against any other Party hereto for compensation, Costs, damages or otherwise and this Agreement shall be of no further force or effect

 

  27.9.2. No Party hereto shall be entitled to rescind or terminate any part of this Agreement after Completion for any reason whatsoever and the rights and obligations of the Parties hereunder shall continue notwithstanding Completion.

 

27.10. Counterparts

 

     This Agreement may be entered into by any number of counterparts and by the Parties to it on separate counterparts, each of which when so executed shall be an original, but all counterparts shall together constitute one and the same instrument.

 

27.11. Business Opportunities

 

     Neither Prothena nor Elan nor their respective Affiliates have any duty to refrain from engaging in similar activities or lines of business, or doing business with suppliers or customers of the other Party, and neither Party will have any duty to communicate or offer any business opportunities to the other.

 

32


Schedule 1

EMPLOYEE BENEFITS

Part A

HEALTHCARE BENEFITS

 

1. The Prothena Employees have been eligible to participate in the employee welfare plan operated by Elan, which is intended to qualify as an accident and health plan under Sections 105 and 106 of the IRC and as a plan providing group-term life insurance coverage for a death benefit, as described in Sections 79 and 101 of the IRC (the Elan Welfare Plan ). For one year following Completion, Prothena will endeavour to maintain a welfare plan substantially similar to the Elan Welfare Plan, which may include:

 

1.1. medical benefits, dental benefits and vision benefits, the cost of which shall be shared by Prothena and participating employees, with the employee portion payable under a “cafeteria”-style arrangement, as described in Section 125 of the IRC;

 

1.2. basic life insurance benefits, accidental death and dismemberment (AD&D) benefits, short-term disability benefits, long-term disability benefits, employee assistance programme (EAP) benefits and business travel accident benefits, the cost of which shall be paid by Prothena;

 

1.3. additional life insurance benefits and dependent life insurance benefits, the cost of which shall be paid by participating employees;

 

1.4. a health flexible spending account and a dependent care flexible spending account to be funded by participating employee contributions under a “cafeteria”-style arrangement, as described in Section 125 of the IRC; and

 

1.5. a transportation spending account to be funded by participating employee contributions, as described in Section 132(f) of the IRC.

 

2. Certain benefits provided to the Prothena Employees under the Elan Welfare Plan are insured. For one year following Completion, Prothena will endeavour to offer the following insured benefits for its eligible employees: medical benefits, dental benefits, vision benefits, basic life insurance benefits, additional life insurance benefits, dependent life insurance benefits, AD&D benefits, short-term disability benefits, long-term disability benefits, EAP benefits and business travel accident benefits.

 

33


Schedule 1

Part B

SEVERANCE BENEFITS

 

1. Prothena Employees have been eligible to participate in the Elan Severance Plan, which provides severance benefits upon certain involuntary terminations prior to a change in control of Elan and enhanced severance benefits upon an involuntary termination upon, or within two years following, a change in control of Elan. The level of severance benefits for which a participant is eligible depends on the participant’s band level and years of service. Prothena Employees will not receive severance benefits in connection with the Demerger. For the avoidance of doubt, Completion will not be deemed a change in control of Elan.

 

2. Following Completion and through calendar year 2013, in the event of an involuntary termination, it is envisaged that Prothena Employees will receive severance pay and benefits substantially equivalent in the aggregate to what they would have received under the Elan Severance Plan.

 

3. From 2014, it is expected that the Prothena severance plan will be conformed to market practice for publicly traded biotechnology companies of a similar size.

 

4. Following Completion, Elan shall have no liability or obligation for the severance of Prothena Employees, nor for any difference with what a Prothena employee (or former Prothena employee) would have received under the Elan Severance Plan. Prothena hereby indemnifies Elan against all claims from Prothena Employees or former Prothena Employees who have received, will receive, or claim they are due to receive, severance packages from Prothena.

 

34


Schedule 1

Part C

PENSION BENEFITS

 

1. 401(k) Savings Plan

 

1.1. Prothena Employees have been eligible to participate in the Elan Pharmaceuticals 401(k) Savings (the Elan 401(k) Plan ), a Tax-qualified retirement plan under IRC Sections 401(a) and 401(k). Following Completion, Prothena will maintain a defined contribution plan with an elective deferral feature and provide a discretionary matching contribution to eligible employees who contribute to the plan (the Prothena 401(k) Plan ).

 

1.2. Following Completion, if the Prothena Employees’ account balances in the Elan 401(k) Plan are not transferred from the Elan 401(k) Plan into corresponding accounts under the Prothena 401(k) Plan in a plan-to-plan transfer, Prothena Employees may “roll over” their accounts from the Elan 401(k) Plan into accounts under the Prothena 401(k) Plan

 

2. Deferred Compensation Plan

Certain executive level Prothena Employees have been eligible to participate in the Elan Pharmaceuticals Deferred Compensation Plan (the “DCP”), a non-qualified account balance Tax deferral plan. Relevant Prothena Employees will receive distributions of their accounts in accordance with the terms of the DCP. It is expected that Prothena will not maintain a deferred compensation plan for its executives.

 

3. Prothena Employees

From Completion, Elan will have no obligations to Prothena Employees with respect to Prothena’s pension arrangements. Prothena hereby indemnifies Elan against all claims from Prothena Employees or former Prothena Employees with respect to Prothena’s pension arrangements.

 

35


Schedule 1

Part D

SHARE PLANS

 

1. Effect of Completion on Outstanding Equity Awards

Certain Prothena Employees hold stock options to purchase Elan ordinary shares or Elan ADSs and restricted stock units ( RSUs ) representing a right to receive Elan ordinary shares or Elan ADSs upon settlement. With respect to Elan options and RSUs held by a majority of Prothena Employees, effective as of Completion:

 

   

unvested Elan options and RSUs that would otherwise have vested within twelve months following the effective date of Completion will vest immediately upon Completion, with the RSUs (which by their terms are settled upon vesting) settled in Elan ordinary shares or Elan ADSs in accordance with their terms;

 

   

other unvested Elan options and RSUs will be forfeited; and

 

   

all vested Elan options (including options the vesting of which were accelerated as described above) will be required to be exercised for Elan ordinary shares or Elan ADSs within twelve months of the effective date of Completion, or will be forfeited.

However, for Prothena Employees who are age 55 or over with at least five years of service, unvested Elan options and RSUs will become fully vested and exercisable upon Completion, with the RSUs (which, by their terms, are settled upon vesting) settled in Elan ordinary shares or Elan ADSs in accordance with their terms and Elan options being exercisable for one year following Completion. Similarly, unvested Elan options and RSUs held by certain Prothena Employees who were executive level employees of Elan in April 2007, will become fully vested and exercisable upon Completion, with Elan options being exercisable for two years following Completion, and with the RSUs (which, by their terms, are settled upon vesting) settled in Elan ordinary shares or Elan ADSs in accordance with their terms.

 

2. Long Term Incentive Plan

The Elan Share Plans include the Elan 2006 Long Term Incentive Plan and the Elan 2012 Long Term Incentive Plan (the Elan LTIPs ). The Elan LTIPs are omnibus plans that provide for the award of stock options, stock appreciation rights, RSUs, performance units, dividend equivalents and other share-based awards to certain service providers of Elan, including employees, consultants and non-employee directors. The Elan LTIPs do not specify vesting or exercisability schedules. Rather, any applicable vesting or exercisability schedule is set forth in the individual award agreement approved by Elan’s Leadership, Development and Compensation Committee.

It is expected that Prothena will adopt a long term incentive plan similar to the Elan LTIPs. The total number of Prothena ordinary shares that will be available for issuance under the Prothena long term incentive plan is expected to be approximately 15% of the outstanding Prothena shares as of Completion and it is expected that initial awards will be in the form of stock options only.

 

3. Prothena Employees

From Completion, Elan will have no obligations to Prothena Employees with respect to Prothena’s share incentive plans. Prothena hereby indemnifies Elan against all claims from Prothena Employees or former Prothena Employees with respect to Prothena’s share incentive plans.

 

4. Elan options and RSUs

The Leadership Development and Compensation Committee of the Elan Board may make such adjustments as it deems appropriate and in such manner as it may deem equitable to awards made under the Elan Share Plans, in the event that the market value of Elan Shares immediately prior to Completion is higher than the market value of Elan Shares immediately after Completion. Any such adjustments will be applied equally to all outstanding Elan awards (including, for the avoidance of doubt, options to purchase Elan Shares held by Prothena Employees that have vested or will vest upon Completion) and shall be strictly in accordance with the terms of the applicable Elan Share Plan.

 

36


Schedule 1

Part E

COMPENSATION ARRANGEMENTS

 

1. Base Salary

 

1.1. Accrued base salaries for Prothena Employees at Completion will be settled by Elan directly with the Prothena Employees on the Payment Date.

 

1.2. From Completion, base salaries for Prothena Employees will be conformed to market practice for publicly traded biotechnology companies of a similar size.

 

2. Annual Incentive Compensation

 

2.1. Elan maintains an annual incentive plan for its employees. At the beginning of each year, the LDCC sets a maximum pool, target and maximum awards, and objective performance goals, while Elan’s Chief Executive Officer sets objective department goals and department managers set individual performance goals. After the end of the year, the LDCC reviews the results and establishes the actual overall bonus pool, not in excess of the maximum. Individuals receive varying awards based on their individual performance and target awards (and LDCC discretion).

 

2.2. Following Completion, Prothena will establish a similar plan with goals based upon its business plan and individual responsibilities for Prothena Employees.

 

2.3. For calendar year 2012, Elan will determine the bonus pool for Prothena Employees, and if Completion occurs prior to Elan’s bonus payout date in 2013, Elan will contribute an equivalent cash amount to Prothena to pay bonuses to Prothena Employees, on the Payment Date (subject to clause 1.2 of Schedule 4, Part 1) ( Elan’s Bonus Contribution Amount ).

 

3. Prothena Employees

 

3.1. From Completion, except in relation to Elan’s commitments under clauses 1.1 and 2.3 of this Schedule 1, Part D, Elan shall have no obligations to Prothena or the Prothena Employees with respect to the Prothena compensation arrangements.

 

3.2. Prothena hereby indemnifies Elan against all claims from Prothena Employees or former Prothena Employees with respect to Prothena’s compensation obligations (except in relation to Elan’s obligations to Prothena in under clauses 1.1 and 2.3 above).

 

37


Schedule 2

Mutual Indemnities

 

1. Elan Business Liabilities

For the purposes of this Schedule 2 (Mutual Indemnities) the following are “Elan Business Liabilities”;

Any and all Liabilities arising out of, relating to or associated with the Elan Business which are not Prothena Business Liabilities.

 

2. Prothena Business Liabilities

For the purposes of this Schedule 2 (Mutual Indemnities) the following are “Prothena Business Liabilities”;

Any and all Liabilities (i) arising out of, relating to or associated with the Prothena Business whether or not in the ordinary course of business, in each case whether matured or unmatured, liquidated or unliquidated, fixed, known or unknown, and whether arising out of circumstances existing prior to, on, subject to or following Completion and regardless of where or against whom such obligations, Liabilities and expenses are asserted or determined or whether asserted or determined prior to, on or subsequent to Completion but excluding any obligation, claim, liability or expense which has been met, settled or paid on or before Completion, (ii) any and all Liabilities to the extent arising out of or relating to any business conducted by any member of the Prothena Group at any time after Completion, (iii) any and all Liabilities that are expressly listed, scheduled or otherwise clearly described in any Transaction Agreement as Liabilities to be assumed by Prothena or any member of the Prothena Group; and (iv) all obligations of the Prothena Group under or pursuant to any Transaction Agreement or any other instrument entered into in connection herewith or therewith.

 

3. Elan hereby covenants and undertakes to indemnify and keep indemnified each Prothena Group Company, each of their respective current, former and future directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (the Prothena Indemnitees ) on an after Tax basis from and against any and all Liabilities suffered by the Prothena Indemnitees, relating to, arising out of, or resulting from, directly or indirectly, any of the following (without duplication):

 

  3.1. the Elan Business Liabilities;

 

  3.2. the Elan Business;

 

  3.3. any breach by Elan or any Elan Group Company of any provision of any Transaction Agreement unless such Transaction Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made thereunder;

 

  3.4. with respect to statements or omissions made or occurring after Completion, any misstatement or alleged misstatement of a material fact contained in any document filed with the SEC by any member of the Prothena Group, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only (A) to the extent caused by any misstatement or omission or alleged misstatement or omission in any Information that is furnished in writing to any member of the Prothena Group by any member of the Elan Group after Completion, (B) if such member of the Elan Group has been informed in writing in advance that such Information will be used in such filing and (C) if the Information used by a member of the Prothena Group in any such filing is not materially different to the Information furnished by a member of the Elan Group; and

 

  3.5. any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all Information contained in the Form 10 or the Information Statement; provided, however, that the indemnity provided in this clause shall only apply to the extent arising out of any untrue statement or omission or alleged untrue statement or omission contained in any Information furnished in writing to any member of the Prothena Group by any member of the Elan Group expressly for use in such filing.

 

38


  3.6. the Proceedings involving the Pre-Demerger Elan Group and the Alzheimer’s Institute of America, that was previously dismissed with prejudice and is currently being appealed by the Alzheimer’s Institute of America.

 

4. Prothena hereby covenants and undertakes to indemnify and keep indemnified each Elan Group Company, each of their respective current, former and future directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (the Elan Indemnitees ) on an after Tax basis from and against any and all Liabilities suffered by the Elan Indemnitees, relating to, arising out of, or resulting from, directly or indirectly, any of the following (without duplication):

 

  4.1. the Prothena Business Liabilities;

 

  4.2. the Prothena Business;

 

  4.3. any breach by Prothena or any member of the Prothena Group of any provision of any Transaction Agreement unless such Transaction Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made thereunder;

 

  4.4. with respect to statements or omissions made or occurring after Completion, any misstatement or alleged misstatement of a material fact contained in any document filed with the SEC by any member of the Elan Group, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only (A) to the extent caused by any misstatement or omission or alleged misstatement or omission in any Information that is furnished in writing to any member of the Elan Group by any member of the Prothena Group after Completion, (B) if such member of the Prothena Group has been informed in writing in advance that such Information will be used in such filing and (C) if the Information used by a member of the Elan Group in any such filing is not materially different to the Information furnished by a member of the Prothena Group; and

 

  4.5. any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all Information contained in the Form 10 or the Information Statement; provided, however, that the indemnity provided in this clause shall not apply to the extent arising out of any untrue statement or omission or alleged untrue statement or omission contained in any Information furnished in writing to any member of the Prothena Group by any member of the Elan Group expressly for use in such filing.

 

39


Schedule 3

Provisions Relating to Claims

Under the Mutual Indemnities

It is agreed between the Parties that if any Party (and any of its subsidiary undertakings and their respective officers and employees) to this Agreement (an Indemnified Party ) shall give notice to another such Party (the Indemnifying Party ) of any claim against the Indemnifying Party under the Mutual Indemnities or any Indemnified Party becomes aware of any claim against it or any other fact, matter or circumstance which, if substantiated, will or might give rise to a claim against the Indemnifying Party under the Mutual Indemnities, then the following provisions of this Schedule 3 shall apply:

 

1. The Indemnified Party shall as soon as reasonably practicable give notice and available details thereof to the Indemnifying Party and shall consult with the Indemnifying Party with respect thereto. If any Indemnified Party fails to give notice promptly as required, any claim by the Indemnified Party hereunder shall be reduced to the extent (and only to the extent) that such failure can be shown to have increased the liability of the Indemnifying Party to the Indemnified Party or to any other Person.

 

2. Any notice given by an Indemnified Party pursuant to clause 1 shall be in writing and shall specify in reasonable detail:

 

  2.1. the basis upon which it is considered there is an entitlement to indemnification;

 

  2.2. the members of the Indemnified Party’s Group considered to have suffered or incurred Losses;

 

  2.3. the identity of any third parties involved; and

 

  2.4. insofar as it is reasonably practicable to determine the same (but without prejudice to the final determination of the amount to be indemnified in respect thereof), an estimate of the monetary amount of the Losses which the Indemnified Party reasonably expects to be suffered or incurred by such Indemnified Party or any member of its Group and in respect of which it is considered such Indemnified Party is or will be entitled to indemnification.

 

3. Elan and Prothena shall endeavour to agree within 30 Business Days of receipt of a notice pursuant to clause 1:

 

  3.1. the basis upon which there is or may be an entitlement to indemnification; and

 

  3.2. to the extent practicable the quantification or the basis of quantification of the indemnification in respect of Losses identified in the notice referred to in clauses 1 and 2,

and if they cannot so agree any entitlement to indemnification shall be determined pursuant to clause 26.

 

4. Notwithstanding the provisions of this Schedule 3, the Indemnified Party shall provide and shall procure that each of its subsidiary undertakings shall provide to the Indemnifying Party and its professional advisers and agents reasonable access to premises and personnel and to any relevant documents and records within its possession or Control (with the right to copy the same at the Indemnifying Party’s own expense) save for any documents or records which are the subject of legal or professional privilege for the purpose of investigating such claim or potential claim or enabling the Indemnifying Party to remedy or avert such breach or matter or to avoid, dispute, resist, appeal, compromise, defend, mitigate or determine the amount of any such claim subject to the Indemnifying Party procuring that it and its professional advisers and agents keep such Information confidential (save for the purposes of, and to the extent necessary for, defending or contesting the matter which is the subject of the relevant indemnity claim).

 

5.

The Indemnified Party shall and shall procure that each of its subsidiary undertakings shall take such action as the Indemnifying Party may reasonably request to allow the Indemnifying Party the opportunity to remedy or avert such breach or matter or to avoid, dispute, resist, appeal, compromise, defend or mitigate any claim which would or might give rise to a claim against the Indemnifying Party under the relevant Mutual Indemnities or any matter which would or might give rise to such a claim or matter and shall, in connection with any Proceedings related to any such claim or matter, use

 

40


  professional advisers nominated by the Indemnifying Party in relation thereto or, if the Indemnifying Party so requests, allow the Indemnifying Party the exclusive conduct thereof, in each case on the basis that the Indemnified Party shall be fully indemnified by the Indemnifying Party on an after Tax basis for all Liabilities, obligations and Costs reasonably incurred as a result of any such request by the Indemnifying Party and on the basis that the Indemnifying Party shall keep the Indemnified Party reasonably informed on matters relating to the Proceedings.

 

6. The Indemnified Party shall not and shall procure that none of its subsidiary undertakings shall make an admission of liability, agreement, compromise or settle any claim or matter which would or might give rise to a claim against the Indemnifying Party under the Mutual Indemnities without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.

 

7. Elan and Prothena may enter into agreements or other arrangements providing for the set-off of payments due to be made by way of indemnification by both Elan and Prothena. The obligations of either Party in respect of any particular Losses indemnified under the Mutual Indemnities shall be deemed to have been fully discharged where the amount agreed by the Parties to be payable in respect of such Loss is paid or taken into account in arriving at any net amount payable by or on behalf of one to the other. For the purpose of this clause 7, the amount payable in respect of a Loss under the Mutual Indemnities shall be taken to be agreed if it has been determined in accordance with the provisions of clause 26.

 

8. Without prejudice to the provisions of any applicable insurance policies, Elan and Prothena shall each take all reasonable steps to mitigate any Losses of any of the members of their respective Group which might give rise to a claim to be entitled to indemnification under the Mutual Indemnities.

 

9. Without prejudice to any recourse which either Party may have against any member of the Other Group (including without limitation any entitlement it may have to be indemnified under the Mutual Indemnities, each of the Parties hereby waives any claim (arising before Completion) which it may have against any employee or former employee who is or was employed by any member of the Other Group or who is or was employed by a body corporate which is not a member of the Other Group but who is or was employed in the conduct of the Elan Business or the Prothena Business (as applicable) arising out of their employment save insofar as such claim relates to allegations of fraud on the part of such employee or former employee and save in the context of a claim by or on behalf of that employee against that Party (or a member of that Party’s Group) or the trustees or managers of a retirement benefits scheme of that Party (or of a member of that Party’s Group).

 

10. Limitations on Liability

Except as may expressly be set forth in this Agreement, none of Elan, Prothena, or any other member of either Group shall in any event have any Liability to the Other Group or to any other member of the Other Group, or to any other Indemnified Party, as applicable, under this Agreement (a) to the extent that any such Liability resulted from any wilful violation of Applicable Law or fraud by the Indemnified Party or (b) for any indirect, punitive or consequential, incidental or special damages or lost profits (except to the extent such indirect, punitive or consequential, incidental or special damages or lost profits are awarded and recovered from an Indemnified Party by any third party pursuant to a third party claim). Notwithstanding the foregoing, the provisions of this clause 10 shall not limit an Indemnifying Party’s indemnification obligations with respect to any Liability that any Indemnified Party may have to any third party not affiliated with any member of the Elan Group or the Prothena Group.

 

10.1. Tax

Any amount which is to be paid to an Indemnified Party pursuant to the Mutual Indemnities under this Schedule 3 shall be calculated on an after Tax basis.

 

10.2. Insured Claims

 

  10.2.1.

This sub-clause 10.2.1 applies notwithstanding any other provisions of this Agreement (but is subject to sub-paragraph 10.2.2 below). It applies where any Indemnified Party or any member of such Indemnified Party’s Group has insurance cover in respect of any Losses it may suffer or incur. Where this is the case, the Mutual Indemnities shall apply only to the extent that the Losses so suffered or incurred exceed, and shall not include, the amount which the relevant Indemnified Party or any member of such Indemnified Party’s Group is entitled to recover from

 

41


  the relevant insurer or insurers. However, notwithstanding the foregoing provisions of this sub-paragraph 10.2.1, any Losses recovered or recoverable from the relevant insurer or insurers shall count towards the calculation of the amounts referred to in sub-clause 10.2.2.

 

  10.2.2. Notwithstanding sub-paragraph 10.2.1, if the relevant Indemnified Party or any member of such Indemnified Party’s Group has not actually received from the relevant insurer or insurers, the full amount of its Losses, or such part thereof as is within the limits of the relevant insurances, within 12 months of the Insurance Date, the Mutual Indemnities will extend to cover indemnification in respect of the Losses in question or such part thereof as is within the limits of the relevant insurances. Such extension of the Mutual Indemnities is conditional on that Indemnified Party, at the option of the Indemnifying Party, either (i) diligently undertaking and pursuing Proceedings against the relevant insurer or insurers at the direction (provided it is reasonably given) of the Indemnifying Party and accounting to the Indemnifying Party for the net amount recovered, after deducting reasonable Costs of recovery, or (ii) assigning or causing there to be assigned to the Indemnifying Party all the rights and claims against the relevant insurer or insurers of the Indemnified Party and the members of its Group.

 

  10.2.3. An insurer that would otherwise be obligated to defend or make payment in response to any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other third party shall be entitled to a “windfall” (i.e., a benefit it would not be entitled to receive in the absence of the indemnification provisions of this Agreement) by virtue of the indemnification provisions hereof.

 

  10.2.4. In this sub-clause 10.2.2, “Insurance Date” means the later of (i) the giving of a claims notice relating to the relevant Losses and (ii) the final calculation of the amount of the relevant Losses or part thereof and (iii) the date of payment to a third Party by an Indemnified Party.

 

11. Recovery from Third Parties

 

11.1. Without prejudice to the provisions of sub-paragraphs 11.1.2 and 11.1.3, but subject to sub-paragraphs 11.1.4 and 11.1.5 of this clause 11, where an Indemnified Party has, or in the reasonable opinion of the Indemnifying Party may have, any claim against any third party in relation to any matter in respect of which it is or may be entitled to indemnification under the Mutual lndemnities, such Indemnified Party agrees, at the option of the Indemnifying Party, either:

 

  11.1.1. to assign to the Indemnifying Party the conduct of such claim; or

 

  11.1.2.             

 

  (1) to take all reasonable steps to enforce such claim against such third party; and

 

  (2) to reimburse to the Indemnifying Party the net amount, after deducting Costs of recovery, recovered from such third party in respect of such claim to the extent that such Indemnifying Party has paid an amount in relation to such indemnity to such Indemnified Party in respect of the matters the subject of such claim.

 

       No Indemnifying Party shall consent to entry of any Judgment or enter into any settlement of any claim or assessment of a third party without the consent of the applicable Indemnified Party; provided, however, that such Indemnified Party shall be required to consent to such entry of Judgment or to such settlement that the Indemnifying Party may recommend if the Judgment or settlement (A) contains no finding or admission of any violation of Applicable Law or any violation of the rights of any Person, (B) involves only monetary relief which the Indemnifying Party has agreed to pay and could not reasonably be expected to have a significant adverse impact (financial or non-financial) on the Indemnified Party, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Indemnified Party (or any of its Subsidiaries or Affiliates), and (C) includes a full and unconditional release of the Indemnified Party.

 

  11.1.3. The Costs of the Indemnified Party incurred in enforcing any claim against any third party as is referred to in sub-clause 11.1.1 shall form a part of the entitlement to be indemnified.

 

42


  11.1.4. In the event the third party claim is assumed by the Indemnifying Party, the applicable Indemnified Party shall have the right to employ separate counsel and to participate in (but not Control) the defence, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party (A) for any period during which the Indemnifying Party has not assumed the defence of such third party claim (other than during any period in which the Indemnified Party shall have failed to give notice of the third party claim in accordance with Section 1 or (B) to the extent that such engagement of counsel is as a result of a conflict of interest, as reasonably determined by the Indemnified Party acting in good faith.

 

11.2. Third Party Claims

 

  11.2.1. If an Indemnified Party shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) that is not a member of the Elan Group or a member of the Prothena Group of any claim (including environmental claims and demands or requests for investigation or remediation of contamination) or of the commencement by any such Person of any Action with respect to which an Indemnifying Party may be obligated to provide indemnification to such Indemnified Party pursuant to this Agreement or any Ancillary Agreement (collectively, a “Third-Party Claim”), such Indemnified Party shall give such Indemnifying Party written notice thereof as soon as promptly practicable, but no later than 30 days after becoming aware of such Third-Party Claim. Any such notice shall describe the Third-Party Claim in reasonable detail and contain any written correspondence received from the third party that relates to the Third-Party Claim. Notwithstanding the foregoing, the failure of any Indemnified Party to give notice as provided in this clause 11.2.1 shall not relieve the related Indemnifying Party of its obligations under Schedule 2 or this Schedule 3, except to the extent that such Indemnifying Party is prejudiced by such failure to give notice.

 

  11.2.2. With respect to any Third-Party Claim:

 

  (1) Within 30 days after the receipt of notice from an Indemnified Party in accordance with clause 11.2.1, an Indemnifying Party may notify the Indemnified Party that it elects to conduct and control the defence of such Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, provided that the Indemnifying Party shall agree prior to such assumption to reimburse the Indemnified Party to the extent required under Schedules 2 and 3 for the full amount of any Losses resulting from such Third-Party Claim. In the event the Indemnifying Party elects to assume control of the defence of the Third-Party Claim, the applicable Indemnified Party shall, at its own expense, have the right to employ separate counsel reasonably acceptable to the Indemnifying Party and to monitor (but not control) the defence, compromise, or settlement thereof, and the Indemnifying Party shall provide the Indemnified Party and such counsel with such information regarding such Third-Party Claim as either of them may reasonably request. If the Indemnifying Party gives the foregoing notice that it elects to conduct and control the defence of such Third-Party Claim, the Indemnifying Party shall have the right, at its sole expense, to undertake, conduct and control, through counsel reasonably acceptable to the Indemnified Party, the conduct and settlement of such Third-Party Claim, and the Indemnified Party shall co-operate with the Indemnifying Party in connection therewith. Notwithstanding the foregoing, the Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party (A) for any period during which the Indemnifying Party has not assumed the defence of such Third-Party Claim (other than during any period in which the Indemnified Party shall have failed to give notice of the Third-Party Claim in accordance with clause 11.2.1) or (B) to the extent that such engagement of counsel is as a result of a conflict of interest between the Parties, as reasonably determined by the Indemnified Party acting in good faith.

 

  (2)

An Indemnifying Party’s assumption of the defence of any Third-Party Claim pursuant to this Section 11.2.2 includes the right to compromise, settle or consent to the entry of any judgment or determination of liability concerning such Third-Party Claim; provided, however, that, in no event shall the Indemnifying Party, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment if the effect thereof is (i) to permit any injunction, declaratory

 

43


  judgment, other order or other non-monetary relief to be entered, directly or indirectly, against such Indemnified Party, (ii) in the reasonable judgment of such Indemnified Party, have a material adverse financial impact or a material adverse effect upon the on-going operations of such Indemnified Party (taken together with its Subsidiaries) or (iii) that it does not include as an unconditional term thereof, the giving by the Third Party of a release of both the Indemnified Party and the Indemnifying Party (and their respective Subsidiaries) from all further liability concerning such Third-Party Claim.

 

  (3) Whether or not the Indemnifying Party assumes the defence of a Third-Party Claim, no Indemnified Party shall admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.

 

  (4) If the Indemnifying Party shall not have undertaken the conduct and control of the defence of any Third-Party Claim as provided above, the Indemnifying Party shall nevertheless be entitled through counsel chosen by the Indemnifying Party and reasonably acceptable to the Indemnified Party to monitor the defence, compromise or settlement of such claim by the Indemnified Party, and the Indemnified Party shall provide the Indemnifying Party and such counsel with such information regarding such Third-Party Claim as either of them may reasonably request (which request may be general or specific), but all costs and expenses incurred in connection with such monitoring shall be borne by the Indemnifying Party.

 

  (5) In the event of an Action in which the Indemnifying Party is not a named defendant, if either the Indemnified Party or the Indemnifying Party shall so request, the Parties shall endeavour to substitute the Indemnifying Party for the named defendant, if reasonably practicable. If such substitution or addition cannot be achieved or is not requested, the Action shall be defended as set forth in this Agreement and the Indemnifying Party shall fully indemnify the named defendant against all Losses as set forth herein.

 

  11.2.3. In the event of payment by or on behalf of any Indemnifying Party to any Indemnified Party in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnified Party as to any events or circumstances in respect of which such Indemnified Party may have any right, defence or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim or against any other Person. Such Indemnified Party shall co-operate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defence or claim.

 

12. Effect of Waiver, Release, Etc.

 

     Any obligation or Liability of an Indemnifying Party in respect of any claim of an Indemnified Party to be entitled to indemnification under this Agreement may in whole or in part be released, compounded or compromised, by time or indulgence given by an Indemnified Party in its absolute discretion without in any way prejudicing or affecting its rights under this Agreement in relation to any other claim or matter or any other rights it may have.

 

13. No Liability If Loss Is Otherwise Compensated For

 

13.1. The Indemnified Party and those deriving title from the Indemnified Party on or after Completion shall not be entitled to recover damages or otherwise obtain reimbursement or restitution more than once between them in respect of any individual claim under the Mutual lndemnities.

 

13.2. The Indemnifying Party shall not be liable for any claim under the Mutual lndemnities to the extent that the subject of the claim has been or is made good or is otherwise compensated for without Cost to the Indemnified Party.

 

14. Acts of the Indemnified Party

 

14.1. No claim shall lie against the Indemnifying Party under the Mutual lndemnities to the extent that such claim is wholly or partly attributable to:

 

44


  14.1.1. any voluntary act, omission, transaction or arrangement carried out by the Indemnified Party or on its behalf or by Persons deriving title from the Indemnified Party on or after Completion; or

 

  14.1.2. any admission of liability made after the date hereof by the Indemnified Party or on its behalf or by Persons deriving title from the Indemnified Party on or after Completion.

 

14.2. The Indemnifying Party shall not be liable for any claims under the Mutual lndemnities which would not have arisen but for any reorganisation or change in ownership of the Indemnified Party’s Group after Completion (other than the Reorganisation) or any changes in the accounting basis on which any of the companies in the Indemnified Party’s Group values its assets or any other change in accounting policy or practice of any member of the Indemnified Party’s Group after Completion.

 

15. Allowance, Provision or Reserve in the Accounts

 

     No matter shall be the subject of a claim under the Mutual lndemnities by Elan or Prothena (as the case may be) to the extent that allowance, provision or reserve in respect of such matter shall have been made in the accounts of a company within the Group of the claiming Party as at the date of this Agreement or has been included in calculating creditors or deducted in calculating debtors in the accounts of a company within the Group of the claiming Party and (in the case of creditors or debtors) is identified in the records of the relevant Group or shall have been otherwise taken account of or reflected in the financial Information contained or the Circular, as the case may be.

 

16. Future Legislation

 

     Save in the case of any legislation having retrospective effect to a date prior to the date of this Agreement, no liability shall arise in respect of any claim under the Mutual lndemnities if and to the extent that liability occurs or is increased wholly or partly as a result of any legislation not in force at the date of this Agreement.

 

17. Loss of Goodwill or Business

 

     No claim shall lie against the Indemnified Party under the Mutual lndemnities to the extent that the subject of the claim relates to the fact that the relevant Group has lost goodwill or possible business.

 

18. Cumulative Remedies

 

     The remedies provided in Schedule 2 and this Schedule 3 shall be cumulative and shall not preclude assertion by any Indemnified Party of any other rights or the seeking of any and all other remedies against any Indemnifying Party.

 

19. Survival of Indemnities

 

     The rights and obligations of each of Elan and Prothena and their respective Indemnified Parties under Schedule 2 and this Schedule 3 shall survive the sale or other transfer by any party of any assets or businesses or the assignment by it of any Liabilities.

 

45


SCHEDULE 4

Trade Payables and Accruals

Part 1

Completion Trade Payables and Accruals Statement

 

1. Completion Trade Payables and Accruals Payment

 

1.1. Elan and Prothena shall each be liable for the payment of 50% of the Completion Trade Payables and Accruals as calculated by reference to the Completion Trade Payables and Accruals Statement.

 

1.2. Payment:

 

  1.2.1. Subject to Prothena first paying to Elan 50% of the Completion Trade Payables and Accruals, Elan shall settle the Completion Trade Payables and Accruals, in accordance with this clause 1.1 (the Prothena Accruals Share ).

 

  1.2.2. Any amounts payable by Prothena to Elan under clause 1.2.1 of this Schedule shall be set off against Elan’s Bonus Contribution Amount in accordance with clause 1.2.3 of this schedule.

 

  1.2.3. Payment Formula

 

  (1) If Elan’s Bonus Contribution Amount exceeds the Prothena Accruals Share, Elan shall, on the Payment Date, pay the amount by which Elan’s Bonus Contribution Amount exceeds the Prothena Accruals Share, into a bank account nominated by Prothena; or

 

  (2) If the Prothena Accruals Share exceeds Elan’s Bonus Contribution Amount, Prothena shall, on the Payment Date, pay the amount by which the Prothena Accruals Share exceeds Elan’s Bonus Contribution Amount, into a bank account nominated by Elan.

 

  1.2.4. For the purposes of this Schedule, Payment Date means the date which is 10 Business Days after the date on which the Completion Trade Payables and Accruals Statement has been accepted or deemed to be accepted or determined in accordance with clause 2 of this Schedule.

 

2. Preparation and Agreement of the Completion Trade Payables and Accruals Statement

 

  2.1. Preparation of Completion Trade Payables and Accruals Statement: As soon as practicable following Completion, Elan shall arrange for a draft of the Completion Trade Payables and Accruals Statement to be prepared in accordance with the template Trade Payables and Accruals Statement set out in Part 3 of this Schedule and shall submit such draft Completion Trade Payables and Accruals Statement stating the Completion Trade Payables and Accruals to Prothena within 30 Business Days of Completion.

 

  2.2. General:

 

  2.2.1. Elan and Prothena each acknowledge that the sole purpose of the Completion Trade Payables and Accruals Statement is to determine the Completion Trade Payables and Accruals.

 

  2.2.2. Each of Elan and Prothena shall ensure that none of the accounting or other advisers to Elan or Prothena (as the case may be) is remunerated on a basis which depends in any way on the outcome of the Completion Trade Payables and Accruals Statement.

 

  2.3. Access to Information: Prothena shall give and shall procure that any Prothena Group Company shall give to Elan (and their respective agents and advisors) access to all relevant files and/or working papers in any Prothena Group Company’s possession or control to the extent that they are reasonably necessary for purposes of Elan’s preparation of the Completion Trade Payables and Accruals Statement.

 

46


  2.4. Acceptance or Dispute Notice: The draft Completion Trade Payables and Accruals Statement shall be deemed to have been accepted as being accurate by Prothena and shall become the Completion Trade Payables and Accruals Statement for the purposes of this Schedule unless within 10 Business Days following the day on which it is received by Prothena, Prothena delivers to Elan a notice ( Dispute Notice ) to the contrary specifying;

 

  2.4.1. the item or items disputed;

 

  2.4.2. the reasons for such dispute; and

 

  2.4.3. how the Completion Trade Payables and Accruals Statement should be adjusted in the opinion of Prothena.

 

  2.5. Resolution between Parties: If Prothena and Elan resolve the matters raised in any Dispute Notice within the period of 10 Business Days following receipt by Elan of such Dispute Notice (the Resolution Period ), the draft Completion Trade Payables and Accruals Statement (adjusted, if necessary as agreed by Prothena and Elan) will be deemed to have been accepted by the Parties and shall become the Completion Trade Payables and Accruals Statement for the purposes of this Schedule.

 

  2.6. Appointment of Independent Accountant: If Elan and Prothena are unable to reach agreement within the Resolution Period, the matter(s) in dispute shall be referred to the decision of an independent chartered accountant (the Independent Accountant ) to be appointed (in default of nomination by agreement between Elan and Prothena within the period of 5 Business Days following the expiry of the Resolution Period), by the President for the time being of the Institute of Chartered Accountants in Ireland or, if such President is unable or unwilling so to act within a period of 10 Business Days from the date on which application in that regard was received by him, by the President for the time being of the Law Society of Ireland, on the written application of Elan or of Prothena (in either case, the President ). If both Elan and Prothena so apply otherwise than on a jointly agreed basis, the application which is first received by the President shall be the one considered by him in making such appointment as aforesaid.

 

  2.7. Determination by Independent Accountant: The terms of reference and procedures in this clause 2.7 shall apply to a referral to the Independent Accountant (unless otherwise directed by the Independent Accountant):

 

  2.7.1. Elan’s Accountants and Prothena’s Accountants shall each prepare a written submission within 10 Business Days of the formal appointment of the Independent Accountant on the matters in dispute which, together with the relevant supporting documents, shall be submitted to the Independent Accountant for determination, with copies of such submissions submitted at the same time to each of Elan and Prothena.

 

  2.7.2. The Independent Accountant may request further information or clarification on any matter which he in his sole discretion decides is relevant from either of Elan’s Accountants or Prothena’s Accountants (such information or clarification to be delivered in the time frame specified by the Independent Accountant).

 

  2.7.3. Each of Elan and Prothena shall instruct the Independent Accountant to give his determination as soon as possible but in any event, unless otherwise agreed between Elan and Prothena, within 30 Business Days of the formal appointment of the Independent Accountant.

 

  2.7.4. In giving his determination, the Independent Accountant shall state what adjustments (if any) are necessary to be made for the purposes solely of this Agreement to the draft Completion Trade Payables and Accruals Statement in respect of the matters in dispute between Prothena and Elan and referred to him pursuant to this clause 2.7 (and, for the avoidance of doubt, not any other matters) in order to comply with the requirements of this Agreement and to determine finally the Completion Trade Payables and Accruals Statement. The determination of the Independent Accountant shall, in the absence of manifest error, be final and binding on the Parties.

 

47


  2.7.5. The Independent Accountant shall determine the proportion in which the Parties shall bear his costs and the costs of the President. In the absence of a determination as to costs by the Independent Accountant, all such costs shall be apportioned between the Parties equally. Notwithstanding the foregoing, each Party shall at all times be responsible for its own costs of presenting its case to the Independent Accountant.

 

  2.7.6. The Parties shall give and shall procure each Group shall give to the Independent Accountant access to all relevant files and/or working papers in that Group’s possession or control to the extent that they are reasonably necessary for purposes of the Independent Accountant’s review of the Completion Trade Payables and Accruals Statement and determination of the matters in dispute.

 

  2.7.7. The Independent Accountant shall act as an expert and not as an arbitrator and neither the Arbitration Act, 2010 nor any earlier or later enactment on arbitration shall apply and, without prejudice to any other rights which they may respectively have under this Agreement, the Parties expressly waive, to the extent permitted by law, any rights of recourse to the courts they may otherwise have to challenge the Independent Accountant’s determination, including any determination under clauses 2.7.4 or 2.7.5 above (save as referred to in those clauses).

 

48


Schedule 4

Part 2

Pro Forma Completion Trade Payables and Accruals Statement

 

A/ C code

  

SAP-BCS Account

   Completion
Amount
   Amount payable by
each of Elan and
Prothena

200010

   Trade creditors      

210012

   Clinical accruals      

210030

   Accrued trade creditors      

210032

   Accrued S&P Tax      

210034

   Maintenance accruals      

210036

   Accrued legal      

210042

   Accrued consulting      

210044

   Accrued professional fees      

210048

   Tangible asset accruals      

210090

   Other accruals      

 

49


IN WITNESS whereof this Agreement has been duly executed as a deed by the Parties to it on the date set out at the beginning of this Agreement.

GIVEN UNDER THE COMMON SEAL

of ELAN CORPORATION, PLC

in the presence of:

 

/s/ Mary Sheahan
Authorised Person
/s/ Liam Daniel
Authorised Person

GIVEN UNDER THE COMMON SEAL

of PROTHENA CORPORATION PLC

in the presence of:

 

/s/ Mary Sheahan

Signature of Director

/s/ Liam Daniel

Signature of Director/Secretary

 

50

Exhibit 2.2

AMENDED AND RESTATED

INTELLECTUAL PROPERTY LICENSE AND

CONTRIBUTION AGREEMENT

AMONG

NEOTOPE BIOSCIENCES LIMITED

AND

ELAN PHARMA INTERNATIONAL LIMITED

AND

ELAN PHARMACEUTICALS, INC.

Dated as of December     , 2012

 

1


AMENDED AND RESTATED INTELLECTUAL PROPERTY LICENSE AND

CONTRIBUTION AGREEMENT

This AMENDED AND RESTATED INTELLECTUAL PROPERTY LICENSE AND CONTRIBUTION AGREEMENT (the “Agreement”) is made this      day of December 2012 (the “Amendment Effective Date”) among NEOTOPE BIOSCIENCES LIMITED, a private limited company incorporated under the laws of Ireland with offices at Treasury Building, Lower Grand Canal Street, Dublin 2, Ireland (“NBL”) on the one hand, and ELAN PHARMA INTERNATIONAL LIMITED, a private limited company incorporated under the laws of Ireland with offices at Treasury Building, Lower Grand Canal Street, Dublin 2, Ireland (“EPIL”) and ELAN PHARMACEUTICALS, INC., a Delaware corporation having an address at 180 Oyster Point Boulevard, South San Francisco, CA 94080 (“EPI”) on the other hand (collectively, “Elan”).

WHEREAS:

 

  A. Elan Corporation, plc (“PLC”) and Prothena Corporation plc (“Prothena”) have entered into that Certain Demerger Agreement dated as of November 8, 2012 (the “Demerger Agreement”).

 

  B. Elan Science One Limited, predecessor in interest to NBL, and EPIL entered into that certain Intellectual Property License and Contribution Agreement dated March 23, 2010 (the “IPLC”).

 

  C. NBL, an Affiliate of EPIL and EPI as of the Amendment Effective Date, will be wholly owned by Prothena upon the consummation of the transactions contemplated by the Demerger Agreement (the “Demerger”).

 

  D. The Demerger Agreement contemplates that, prior to the Demerger, the Pre-Demerger Restructuring (as defined in the Demerger Agreement) shall have been consummated, which Pre-Demerger Restructuring is intended to allocate, assign, and transfer to entities that will be owned by Prothena from and after the Demerger (including NBL), assets and liabilities that comprise the Prothena Business (as defined in the Demerger Agreement).

 

  E. As part of the Pre-Demerger Restructuring, EPI, EPIL and NBL wish to amend and restate pursuant to this Agreement the IPLC, in order to clarify, allocate, assign and transfer to NBL the assets and liabilities relating to the Projects (as defined below) to the extent set forth herein.

NOW IT IS HEREBY AGREED AS FOLLOWS:

ARTICLE I

DEFINITIONS

In this Agreement, the following definitions shall apply:

 

“A b Field”    Treatment and/or prevention of neurodegenerative conditions in humans associated with beta amyloid deposition, including, without limitation, Alzheimer’s disease and/or Mild Cognitive Impairment using immunological approaches directed at one or more epitopes of A b or any naturally occurring variants thereof, including without limitation, the administration of a peptide immunogen as a vaccine or the administration of an antibody

 

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“Acquired Assets”    Assigned IP, Project Contracts, Project Materials other than Elan Materials, and Project Records that are owned by Elan as of the Effective Date.
“Acquired Liabilities”    Debts, liabilities, losses, guarantees, commitments and obligations relating to or associated with the Acquired Assets.
“Active Immunotherapeutic Approaches”    Direct immunization with a target, or a fragment derived from a target (“Immunogen”), either with adjuvant alone or coupled to a carrier molecule designed to elicit an immune response of humoral or cellular nature in the host. Included are Immunogens in complex with another protein, such as, for example, lipid stabilized Immunogens and protein conjugated Immunogens, as well as multivalent vaccines incorporating multiple Immunogens.
“Affiliate”    A corporation or other entity that controls, is controlled by or is under common control with such corporation or entity. A person or entity shall be regarded as in control of another entity if it owns or controls more than fifty percent (50%) of the voting securities or other ownership interest of the other corporation or entity.
“Ancillary Intellectual Property”    The Intellectual Property licensed by Elan to NBL pursuant to Article III hereof and set forth on Schedule E.
“Assigned Intellectual Property” or “Assigned IP”    Neotope Patent Rights, Project Know-How, Non- A b General Immunotherapy Patent Rights and Neotope Trademark Rights.
“Effective Date”    The effective date of the IPLC.
“ELND2 Materials”    Antibodies 6F10, 5E10, 5D8 and 8G9, which specifically bind ELND-002.
“Elan Materials”    The materials listed in Schedule D.
“Exclusive License”    A fully paid, perpetual, irrevocable (except as otherwise expressly provided in Article III) and royalty free license including the right to sublicense, whereby licensee’s rights are sole and entire and operate to exclude all others including licensor and its Affiliates, except as otherwise expressly provided herein.
“General Immunotherapy Patent Rights”    The Patents listed in Schedule F.
“Inactive”    Funded at an average annual rate of less than seventy-five thousand dollars ($75,000) over a period of two calendar years, including both internal and external expenditures in the aggregate.

 

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“Intellectual Property”    All (a) inventions (whether or not patentable and whether or not reduced to practice), records of inventions, test information, developments, applications, improvements, formulae, concepts, ideas, methods or processes, research property rights, all improvements to any of the foregoing, and all Patents, (b) copyrights, and all applications, registrations and renewals in connection therewith, (c) trade secrets, Know-How and confidential information, (d) domain names, computer software, firmware and applications (including source code, executable code, data, databases, programming and notes and documents and other related documentation), other than commercial off-the-shelf software, (e) works and designs embodied in advertising and promotional materials, (f) other proprietary rights and (g) copies and tangible embodiments of the foregoing in whatever form or medium.
“Know-How”    Confidential scientific, technical, medical and marketing data, trade secrets and information, including all ideas, concepts, research and development, know-how, composition information and embodiments, manufacturing and production processes, techniques and information, specifications, technical and business data, designs, drawings, supplier lists, pricing and cost information, and data and know-how embodied in business and marketing plans and proposals, inventions (whether or not patentable and whether or not reduced to practice), records of inventions, test information, developments, applications, improvements, formulae, concepts, ideas, methods or processes, research property rights and all improvements to any of the foregoing.
“Neotope Patent Rights”    The Patents listed on Schedule A-I and any Patents claiming priority thereto.
“Neotope Trademark Rights”    Collectively, (a) the Trademark Rights listed on Schedule A-II (a), (b) the Trademark Rights filed or issued in any country in the Territory, relating solely to any of the marks listed on Schedule A-II (b) and any trademark applications claiming priority thereto, and/or (c) such other Trademark Rights created or filed in any country in the Territory by NBL or OTL.
“Non- A b General Immunotherapy Patent Rights”    General Immunotherapy Patent Rights that, when issued, solely contain claims outside the A b Field.
“OTL”    Onclave Therapeutics Limited.
“Passive Immunotherapeutic Approaches”    Treatment of a host with either a whole antibody, or a fragment of an antibody which recognizes a target (or fragment or epitope in the target).

 

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“Patents”    All patents and patent applications, whether foreign or domestic, all patents arising from such applications, and all patents and patent applications based on, or claiming or corresponding to the priority dates, of any of the foregoing and any renewals, reissues, extensions (or other governmental actions that provide exclusive rights to the owner thereof in the patented subject matter beyond the original expiration date), substitutions, confirmations, registrations, revalidations, reexaminations, additions, continuations, continued prosecutions, continuations-in-part or divisions of or to any of the foregoing, including without limitation, supplementary protection certificates or the equivalent thereof.
“Person”    Any individual, firm, partnership, company, corporation, government authority or other entity.
“Project Contracts”    (i) The contracts listed in Schedule B and (ii) all contracts to which NBL and/or OTL is a party, but to which neither EPIL or EPI, nor any Affiliate of EPIL or EPI is a party.
“Project Know-How”    All Know-How relating solely to the Projects.
“Project Materials”    The materials listed in Schedule C, NEOD001, NEOD002 and all murine, rat and humanized antibodies, cell lines, hybridomas, human tissue samples, transgenic tissue samples, CSF samples, peptides, proteins, immunogens, vectors and other materials stored at 650 Gateway Boulevard, South San Francisco, CA 94080 as of the Demerger or on the premises of any third party pursuant to a Project Contract, excluding antibodies specific for amyloid beta peptide.
“Project Records”    Copies of all files, documents and correspondence relating solely to the Projects, including data, reports, certificates, laboratory notebooks, written notes, standard operating procedures, logs, studies, databases, raw or experimental data, research records, assay protocols, meeting minutes, certificates of analysis, and vendor and supplier lists necessary for furthering the Projects and products arising therefrom.
“Projects”    Research, development and commercialization activities directed to the use, in the diagnosis, prevention and treatment of diseases, of Active Immunotherapeutic Approaches and Passive Immunotherapeutic Approaches, in each case directly targeting one or more Targets.

 

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“Synuclein Patent Rights”    The Patents listed in Schedule A-III and Patents claiming priority thereto.
“Target”    Any and all (i) targets disclosed in the General Immunotherapy Patent Rights other than amyloid beta peptide, including AA, AL, IAPP, synuclein and beta-2-microglobulin; (ii) tau; (iii) TDP-43; (iv) osteopontin; (v) iC3b; (vi) ApoE; (vii) Connective Tissue Growth Factor (“CTGF”); (viii) PAR2; (ix) ApoA1; (x) TTR; (xi) ApoB; (xii) huntingtin; (xiii) fragments of any and all of (i)-(xii); and/or (xiv) epitopes presented by any and all of (i)-(xiii) complexed with other molecular entities, including without limitation proteins, lipids, polymers, nucleic acids, compounds; provided, however, that in the case of (xiv), such epitope shall include at least two amino acids of any of (i)-(xii) as determined by standard epitope mapping techniques.
“Territory”    The world.
“Trademark Rights”    All trademarks, trademark rights, service marks, service mark rights, trade dress, logos, slogans, trade names, trade name rights, Internet domain names and subdomains, together with all translations, adaptations, derivations, and combinations thereof and all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith.

ARTICLE II

PURCHASE AND SALE OF ACQUIRED ASSETS

 

1. Elan hereby transfers, sells, conveys, assigns and delivers to NBL all right, title and interest in the Territory to (i) the Acquired Assets and (ii) subject to the terms of the Demerger Agreement, the Acquired Liabilities. Subject to Article VI hereof and notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to transfer, sell, convey, or assign any Acquired Asset if an attempted transfer, sale, conveyance, or assignment thereof, without the consent of a third party, would constitute a breach or other contravention of the rights of such Acquired Asset, or would in any way adversely affect the rights of EPI or EPIL, or upon transfer, sale, conveyance or assignment, NBL under such Acquired Asset.

 

2. Subject to Article VI hereof, Elan shall use commercially reasonable efforts to conclude as soon as reasonably practicable after the Effective Date the perfected assignments of, and to consummate the transfer of all of Elan’s rights, title, and interest in the Acquired Assets to NBL (it being understood that the Non- A b General Immunotherapy Patent Rights, if any, will be issued and transferred to NBL after the Demerger (as defined in the Demerger Agreement)).

 

3. Elan shall use commercially reasonable efforts to transfer and deliver all Project Materials and Project Records when and in the manner requested by NBL.

 

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ARTICLE III

GRANT OF EXCLUSIVE LICENSE OF PATENT RIGHTS AND MATERIALS

 

1.1 Elan hereby grants to NBL a license, on a paid up and exclusive basis in the Territory (with the right to grant sublicenses) solely for the Projects, to make, use, offer for sale, sell and import products under General Immunotherapy Patent Rights other than Non- A b General Immunotherapy Patent Rights.

 

1.2 Elan hereby grants to NBL an Exclusive License in the Territory solely for the Projects to (1) conduct research and development activities, and (2) make, have made, use, sell, offer for sale and import products within the Projects, under:

 

  a. Synuclein Patent Rights; and

 

  b. Elan Materials.

 

2.1 For the avoidance of doubt, Elan and its Affiliates, other than NBL and OTL, shall use certain Target antibodies, i.e., 11A5, 12C6, 6H7, 8A5, 5C12 and the lipid/synuclein antibodies (collectively, “Synuclein Antibodies”) solely for research purposes, excluding use in studies relating to the Projects, and for no other purpose (“Elan’s Permitted Use”).

 

3.1 Except as provided in this Section 3.1, Elan and its Affiliates, other than NBL and OTL, shall not distribute to third parties or make a public disclosure of any Synuclein Antibodies without NBL’s prior written consent. Elan may, without NBL’s prior written consent:

 

  a. Distribute to collaborators other than academic institutions under a written agreement prohibiting publication or further distribution of the Elan Materials and expressly limiting use to Elan’s Permitted Use; or

 

  b. Distribute no more than 1 mg of any of 11A5, 6H7, and 8A5 under a written agreement prohibiting identification of the antibody structure and further distribution and expressly limiting use to Elan’s Permitted Use; or

 

  c. Publish results obtained with, but not the structure of, any of 11A5, 6H7, and 8A5; or

 

  d. Disclose and publish in a patent application and any patent issuing therefrom any results obtained with the Synuclein Antibodies in Elan’s Permitted Use.

 

4.1 For the avoidance of doubt, NBL and its Affiliates shall use certain non-Target antibodies, i.e., ELND2 Materials, TY11/15, 27-1, 2E4, 3G10 and APP antibodies solely for research purposes relating to the Projects, and for no other purpose (“NBL’s Permitted Use”).

 

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5.1 Except as provided in this Section 5.1, NBL and its Affiliates shall not distribute to third parties or make a public disclosure of any ELND2 Materials without Elan’s prior written consent. NBL may, without Elan’s prior written consent:

 

  a. Distribute to collaborators other than academic institutions under a written agreement prohibiting publication or further distribution of the ELND2 Materials and expressly limiting use to NBL’s Permitted Use; or

 

  b. Distribute to academic institutions conducting research in furtherance of the Projects under a written agreement prohibiting further distribution of the ELND2 Materials and expressly limiting use to NBL’s Permitted Use; or

 

  c. Disclose and publish in a patent application and any patent issuing therefrom any results obtained with the ELND2 Materials in NBL’s Permitted Use.

 

6.1 On an annual basis, NBL shall review Projects to identify which have been Inactive. Within sixty (60) days of such identification, NBL shall notify Elan of such Inactive Projects, and the rights granted to NBL under Article III with respect to Ancillary Intellectual Property related solely to such identified Inactive Projects shall terminate and shall revert to Elan.

ARTICLE IV

CONSIDERATION

The parties hereto acknowledge that in connection with the consummation of the IPLC on March 23, 2010 and in consideration for the transfer of the assets acquired pursuant to Article II of the IPLC and the licenses granted pursuant to Article III of the IPLC, Elan Science One Limited, predecessor in interest to NBL, issued to EPIL ninety (90) ordinary shares of Elan Science One Limited.

 

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ARTICLE V

PROSECUTION OF PATENT RIGHTS

NBL shall solely control the prosecution and maintenance of all Neotope Patent Rights, and shall pay all costs associated therewith incurred after the Effective Date and shall have no obligation to Elan in respect of such Neotope Patent Rights. EPI shall solely control the prosecution of Synuclein Patent Rights; provided, however, that EPI shall keep NBL reasonably apprised of the status of the Synuclein Patent Rights and reasonably consider the input of NBL with respect to the prosecution of any claims in the Synuclein Patent Rights solely related to the Projects.

ARTICLE VI

RELATIONSHIP TO DEMERGER AGREEMENT

This Agreement is subject in all respects to the terms and conditions of the Demerger Agreement. The consummation of the transactions contemplated by this Agreement shall constitute part of the Pre-Demerger Restructuring (as defined in the Demerger Agreement) under the Demerger Agreement and shall accordingly be consummated prior to the consummation of the transactions contemplated by the Demerger Agreement. The Acquired Assets and Acquired Liabilities conveyed to NBL pursuant to this Agreement shall constitute assets of the Prothena Business and Prothena Business Liabilities, respectively, for all purposes of the Demerger Agreement. Nothing contained in this Agreement shall be deemed to supersede any of the covenants, agreements, representations or warranties of Elan, Seller, Prothena, or Buyer contained in the Demerger Agreement. In the event of a conflict between this Agreement and the Demerger Agreement, the terms of the Demerger Agreement shall control.

ARTICLE VII

TERM AND TERMINATION

This Agreement may be terminated at any time prior to the Demerger by written consent of the parties hereto.

ARTICLE VIII

MISCELLANEOUS

 

1. Force Majeure

Neither party to this Agreement shall be liable for delay in the performance of any of its obligations hereunder if such delay results from causes beyond its reasonable control, including, without limitation, acts of God, fires, strikes, acts of war, or intervention of any government authority, but any such delay or failure shall be remedied by such party as soon as practicable.

 

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2. Relationship of the Parties

Nothing contained in this Agreement is intended or is to be construed to constitute EPI, EPIL and NBL as partners or joint venturers or employees of the other party or to constitute any party as granting a license or sublicense of rights of which such party does not have possession, whether by ownership or license. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.

 

3. Counterparts

This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute this Agreement. This Agreement may be executed by facsimile (including electronically by PDF). The parties agree that facsimile copies of signatures have the same effect as original signatures.

 

4. Notices

Any notice or other communication required or permitted to be given to either party under this Agreement shall be given in writing and shall be delivered by hand or by facsimile (and promptly confirmed by registered mail, postage prepaid and return receipt requested, or by reputable overnight delivery service or courier), addressed to each party at the following addresses or such other address as may be designated by notice pursuant to this Article VII Section 4:

 

If to NBL:    Neotope Biosciences Limited
   Treasury Building
   Lower Grand Canal Street
   Dublin 2, Ireland
   Attention: Director
If to EPI:    Elan Pharmaceuticals, Inc.
   180 Oyster Point Blvd.
   South San Francisco, CA 94080
   Attention: Secretary
If to EPIL:    Elan Pharma International Limited
   Treasury Building
   Lower Grand Canal Street
   Dublin 2, Ireland
   Attention: Director

Any notice or communication given in conformity with this Article VIII Section 4 shall be deemed to be effective when received by the addressee, if delivered by facsimile, hand or delivery service or courier, and four days after mailing, if mailed.

 

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5. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of Ireland.

 

6. Severability

If any provision in this Agreement is deemed to be or becomes invalid, illegal or unenforceable, (i) such provision will be deemed amended to conform to applicable laws so as to be valid and enforceable or, if it cannot be so amended without materially altering the intention of the parties, it will be deleted, and (ii) the validity, legality and enforceability of the remaining provisions of this Agreement shall not be impaired or affected in any way.

 

7. Amendments

No amendment, modification or addition hereto shall be effective or binding on either party unless set forth in writing and executed by a duly authorized representative of both parties.

 

8. Waiver

No waiver of any right under this Agreement shall be deemed effective unless contained in a writing signed by the party charged with such waiver, and no waiver of any breach or failure to perform shall be deemed to be a waiver of any future breach or failure to perform or of any other right arising under this Agreement.

 

9. Headings

The section headings contained in this Agreement are included for convenience only and form no part of the agreement between the parties.

 

10. Assignment, Etc.

Neither party may assign its rights and obligations hereunder without the prior written consent of the other party; provided, however, that either party shall have the right to assign such rights and obligations hereunder to an Affiliate or to any Person with which such party is merged or consolidated or which purchases all or substantially all of the assets of such party.

 

11. No Effect on Other Agreements

No provision of this Agreement shall be construed so as to negate, modify or affect in any way the provisions of any other agreement between the parties unless specifically referred to, and solely to the extent provided in any such other agreement.

 

12. Successors

This Agreement will inure to the benefit of and be binding upon the successors of the parties hereto.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Agreement on the date last written below, effective as of the Effective Date.

 

NEOTOPE BIOSCIENCES LIMITED
By:  

 

Name:  
Title:  
Date:  

 

ELAN PHARMACEUTICALS, INC.     ELAN PHARMA INTERNATIONAL LIMITED
By:  

 

    By:  

 

Name:       Name:  
Title:       Title:  
Date:       Date:  
       

 

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Exhibit 2.3

INTELLECTUAL PROPERTY LICENSE AND CONVEYANCE

AGREEMENT

AMONG

NEOTOPE BIOSCIENCES LIMITED

AND

ELAN PHARMA INTERNATIONAL LIMITED

AND

ELAN PHARMACEUTICALS, INC.

Dated as of December     , 2012

 

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INTELLECTUAL PROPERTY LICENSE AND CONVEYANCE AGREEMENT

This INTELLECTUAL PROPERTY LICENSE AND CONVEYANCE AGREEMENT (the “Agreement”) is made this      day of December 2012 (the “Effective Date”) among NEOTOPE BIOSCIENCES LIMITED, a private limited company incorporated under the laws of Ireland with offices at Treasury Building, Lower Grand Canal Street, Dublin 2, Ireland (“NBL”) on the one hand, and ELAN PHARMA INTERNATIONAL LIMITED, a private limited company incorporated under the laws of Ireland with offices at Treasury Building, Lower Grand Canal Street, Dublin 2, Ireland (“EPIL”) and ELAN PHARMACEUTICALS, INC., a Delaware corporation having an address at 180 Oyster Point Boulevard, South San Francisco, CA 94080 (“EPI”) on the other hand (collectively, “Elan”).

WHEREAS:

 

  A. Elan Corporation, plc (“PLC”) and Prothena Corporation plc (“Prothena”) have entered into that Certain Demerger Agreement dated as of November 8, 2012 (the “Demerger Agreement”).

 

  B. NBL, an Affiliate of EPIL and EPI as of the Effective Date, will be wholly owned by Prothena upon the consummation of the transactions contemplated by the Demerger Agreement (the “Demerger”).

 

  C. The Demerger Agreement contemplates that, prior to the Demerger, the Pre-Demerger Restructuring (as defined in the Demerger Agreement) shall have been consummated, which Pre-Demerger Restructuring is intended to allocate, assign, and transfer to entities that will be owned by Prothena from and after the Demerger (including NBL), assets and liabilities that comprise the Prothena Business (as defined in the Demerger Agreement).

 

  D. As part of the Pre-Demerger Restructuring, EPI, EPIL and NBL wish to allocate, assign and transfer to NBL the assets and liabilities relating to the Projects (as defined below) to the extent set forth herein.

NOW IT IS HEREBY AGREED AS FOLLOWS:

ARTICLE I

DEFINITIONS

In this Agreement, the following definitions shall apply:

 

“Acquired Assets”    Assigned IP, Project Contracts, Project Materials other than Elan Materials, and Project Records that are owned by Elan as of the Effective Date.
“Acquired Liabilities”    Debts, liabilities, losses, guarantees, commitments and obligations relating to or associated with the Acquired Assets.

“Active Immunotherapeutic Approaches”

   Direct immunization with a target, or a fragment derived from a target (“Immunogen”), either with adjuvant alone or coupled to a carrier molecule designed to elicit an immune response of humoral or cellular nature in the host. Included are Immunogens in complex with another protein, such as, for example, lipid stabilized Immunogens and protein conjugated Immunogens, as well as multivalent vaccines incorporating multiple Immunogens.

 

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“Affiliate”    A corporation or other entity that controls, is controlled by or is under common control with such corporation or entity. A person or entity shall be regarded as in control of another entity if it owns or controls more than fifty percent (50%) of the voting securities or other ownership interest of the other corporation or entity.
“AGE”    Advanced glycation end products.
“Ancillary Intellectual Property”    The Intellectual Property licensed by Elan to NBL pursuant to Article III hereof and set forth on Schedule E.
“Assigned Intellectual Property” or “Assigned IP”    Neotope Patent Rights, Project Know-How and Neotope Trademark Rights.
“ELND2 Materials”    Antibodies 6F10, 5E10, 5D8 and 8G9, which specifically bind ELND-002.
“Elan Materials”    The materials listed in Schedule D.
“Exclusive License”    A fully paid, perpetual, irrevocable (except as otherwise expressly provided in Article III) and royalty-free license including the right to sublicense, whereby licensee’s rights are sole and entire and operate to exclude all others including licensor and its Affiliates, except as otherwise expressly provided herein.
“Inactive”    Funded at an average annual rate of less than seventy-five thousand dollars ($75,000) over a period of two calendar years, including both internal and external expenditures in the aggregate.
“Intellectual Property”    All (a) inventions (whether or not patentable and whether or not reduced to practice), records of inventions, test information, developments, applications, improvements, formulae, concepts, ideas, methods or processes, research property rights, all improvements to any of the foregoing, and all Patents, (b) copyrights, and all applications, registrations and renewals in connection therewith, (c) trade secrets, Know-How and confidential information, (d) domain names, computer software, firmware and applications (including source code, executable code, data, databases, programming and notes and documents and other related documentation), other than commercial off-the-shelf software, (e) works and designs embodied in advertising and promotional materials, (f) other proprietary rights and (g) copies and tangible embodiments of the foregoing in whatever form or medium.

 

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“Know-How”    Confidential scientific, technical, medical and marketing data, trade secrets and information, including all ideas, concepts, research and development, know-how, composition information and embodiments, manufacturing and production processes, techniques and information, specifications, technical and business data, designs, drawings, supplier lists, pricing and cost information, and data and know-how embodied in business and marketing plans and proposals, inventions (whether or not patentable and whether or not reduced to practice), records of inventions, test information, developments, applications, improvements, formulae, concepts, ideas, methods or processes, research property rights and all improvements to any of the foregoing.
“Laminin”    Laminin 411 (Flanagan et al., Laminin-411 Is a Vascular Ligand for MCAM and Facilitates TH17 Cell Entry into the CNS, Plos One, July 2012, Vol. 7, Issue 7) and other laminin molecules.
“MCAM”    Melanoma cell adhesion molecule (Flanagan et al., Laminin-411 Is a Vascular Ligand for MCAM and Facilitates TH17 Cell Entry into the CNS, Plos One, July 2012, Vol. 7, Issue 7).
“Neotope Patent Rights”    The Patents listed on Schedule A-I and any Patents claiming priority thereto.
“Neotope Trademark Rights”    The Trademark Rights listed on Schedule A-II.
“OTL”    Onclave Therapeutics Limited.
“Passive Immunotherapeutic Approaches”    Treatment of a host with either a whole antibody, or a fragment of an antibody which recognizes a target (or fragment or epitope in the target).
“Patents”    All patents and patent applications, whether foreign or domestic, all patents arising from such applications, and all patents and patent applications based on, or claiming or corresponding to the priority dates, of any of the foregoing and any renewals, reissues, extensions (or other governmental actions that provide exclusive rights to the owner thereof in the patented subject matter beyond the original expiration date), substitutions, confirmations, registrations, revalidations, reexaminations, additions, continuations, continued prosecutions, continuations-in-part or divisions of or to any of the foregoing, including without limitation, supplementary protection certificates or the equivalent thereof.
“Person”    Any individual, firm, partnership, company, corporation, government authority or other entity.
“Project Contracts”    The contracts listed in Schedule B.

 

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“Project Know-How”    All Know-How relating solely to the Projects.
“Project Materials”    The materials listed in Schedule C.
“Project Records”    Copies of all files, documents and correspondence relating solely to the Projects, including data, reports, certificates, laboratory notebooks, written notes, standard operating procedures, logs, studies, databases, raw or experimental data, research records, assay protocols, meeting minutes, certificates of analysis, and vendor and supplier lists necessary for furthering the Projects and products arising therefrom.
“Projects”    Research, development and commercialization activities directed to the use, in the diagnosis, prevention and treatment of diseases, of (a) Active Immunotherapeutic Approaches and Passive Immunotherapeutic Approaches, in each case directly targeting one or more Targets and/or (b) any and all Syn103 Program Compounds.
“Syn 103 Program Compounds”   

ELN484103 (4-fluoro-N-(4-(trifluoromethyl)phenyl)benzenesulfonamide) having the structure:

 

LOGO

 

And related compounds ELN584092, ELN584105, ELN584164, ELN584095, ELN584090.

“Synuclein Patent Rights”    The Patents listed in Schedule A-III and Patents claiming priority thereto.
“Target”    Any and all of (i) MCAM; (ii) Laminin; (iii) AGE; (iv) damaged myelin; (v) fragments of any and all of (i)-(iv); and/or (vi) epitopes presented by any and all of (i)-(v) complexed with other molecular entities, including without limitation proteins, lipids, polymers, nucleic acids, compounds; provided, however, that in the case of (vi), such epitope shall include at least two amino acids of any of (i)-(iv) as determined by standard epitope mapping techniques.
“Territory”    The world.
“Trademark Rights”    All trademarks, trademark rights, service marks, service mark rights, trade dress, logos, slogans, trade names, trade name rights, Internet domain names and subdomains, together with all translations, adaptations, derivations, and combinations thereof and all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith.

 

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ARTICLE II

PURCHASE AND SALE OF ACQUIRED ASSETS

 

1. Elan hereby transfers, sells, conveys, assigns and delivers to NBL all right, title and interest in the Territory to (i) the Acquired Assets and (ii) subject to the Demerger Agreement, the Acquired Liabilities. Subject to Article VI hereof and notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to transfer, sell, convey, or assign any Acquired Asset if an attempted transfer, sale, conveyance, or assignment thereof, without the consent of a third party, would constitute a breach or other contravention of the rights of such Acquired Asset, or would in any way adversely affect the rights of EPI or EPIL, or upon transfer, sale, conveyance or assignment, NBL under such Acquired Asset.

 

2. Subject to Article VI hereof, Elan shall use commercially reasonable efforts to conclude as soon as reasonably practicable after the Effective Date the perfected assignments of, and to consummate the transfer of all of Elan’s rights, title, and interest in the Acquired Assets to NBL.

 

3. Elan shall use commercially reasonable efforts to transfer and deliver all Project Materials and Project Records when and in the manner requested by NBL.

ARTICLE III

GRANT OF EXCLUSIVE LICENSE OF PATENT RIGHTS AND MATERIALS

 

1. Elan hereby grants to NBL an Exclusive License in the Territory solely for the Projects to (1) conduct research and development activities, and (2) make, have made, use, offer for sale, sell and import products within the Projects, under:

 

  a. Synuclein Patent Rights; and

 

  b. Elan Materials.

 

2. For the avoidance of doubt, Elan and its Affiliates, other than NBL and OTL, shall use certain Target antibodies, i.e., 11A5, 12C6, 6H7, 8A5, 5C12 and the lipid/synuclein antibodies (collectively, “Synuclein Antibodies”) solely for research purposes, excluding use in studies relating to the Projects, and for no other purpose (“Elan’s Permitted Use”).

 

3. Except as provided in this Section 3, Elan and its Affiliates, other than NBL and OTL, shall not distribute to third parties or make a public disclosure of any Synuclein Antibodies without NBL’s prior written consent. Elan may, without NBL’s prior written consent:

 

  a. Distribute to collaborators other than academic institutions under a written agreement prohibiting publication or further distribution of the Elan Materials and expressly limiting use to Elan’s Permitted Use; or

 

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  b. Distribute no more than 1 mg of any of 11A5, 6H7, and 8A5 under a written agreement prohibiting identification of the antibody structure and further distribution and expressly limiting use to Elan’s Permitted Use; or

 

  c. Publish results obtained with, but not the structure of, any of 11A5, 6H7, and 8A5; or

 

  d. Disclose and publish in a patent application and any patent issuing therefrom any results obtained with the Synuclein Antibodies in Elan’s Permitted Use.

 

4. For the avoidance of doubt, NBL and its Affiliates shall use certain non-Target antibodies, i.e., ELND2 Materials, TY11/15, 27-1, 2E4, 3G10 and APP antibodies solely for research purposes relating to the Projects, and for no other purpose (“NBL’s Permitted Use”).

 

5. Except as provided in this Section 5, NBL and its Affiliates shall not distribute to third parties or make a public disclosure of any ELND2 Materials without Elan’s prior written consent. NBL may, without Elan’s prior written consent:

 

  a. Distribute to collaborators other than academic institutions under a written agreement prohibiting publication or further distribution of the ELND2 Materials and expressly limiting use to NBL’s Permitted Use; or

 

  b. Distribute to academic institutions conducting research in furtherance of the Projects under a written agreement prohibiting further distribution of the ELND2 Materials and expressly limiting use to NBL’s Permitted Use; or

 

  c. Disclose and publish in a patent application and any patent issuing therefrom any results obtained with the ELND2 Materials in NBL’s Permitted Use.

 

6. On an annual basis, NBL shall review Projects to identify which have been Inactive. Within sixty (60) days of such identification, NBL shall notify Elan of such Inactive Projects, and the rights granted to NBL under Article III with respect to Ancillary Intellectual Property related solely to such identified Inactive Projects shall terminate and shall revert to Elan.

ARTICLE IV

CONSIDERATION

In consideration for the transfer of the Acquired Assets to NBL, NBL shall pay EPI and EPIL a total of $375,000 and assume (subject to the terms of the Demerger Agreement) the Acquired Liabilities.

ARTICLE V

PROSECUTION OF PATENT RIGHTS

NBL shall solely control the prosecution and maintenance of all Neotope Patent Rights, and shall pay all costs associated therewith incurred after the Effective Date and shall have no obligation to Elan in respect of such Neotope Patent Rights. EPI shall solely

 

7


control the prosecution of Synuclein Patent Rights; provided, however, that EPI shall keep NBL reasonably apprised of the status of the Synuclein Patent Rights and reasonably consider the input of NBL with respect to the prosecution of any claims in the Synuclein Patent Rights solely related to the Projects.

ARTICLE VI

RELATIONSHIP TO DEMERGER AGREEMENT

This Agreement is subject in all respects to the terms and conditions of the Demerger Agreement. The consummation of the transactions contemplated by this Agreement shall constitute part of the Pre-Demerger Restructuring (as defined in the Demerger Agreement) under the Demerger Agreement and shall accordingly be consummated prior to the consummation of the transactions contemplated by the Demerger Agreement. The Acquired Assets and Acquired Liabilities conveyed to NBL pursuant to this Agreement shall constitute assets of the Prothena Business and Prothena Business Liabilities, respectively, for all purposes of the Demerger Agreement. Nothing contained in this Agreement shall be deemed to supersede any of the covenants, agreements, representations or warranties of Elan, Seller, Prothena, or Buyer contained in the Demerger Agreement. In the event of a conflict between this Agreement and the Demerger Agreement, the terms of the Demerger Agreement shall control.

ARTICLE VII

TERM AND TERMINATION

This Agreement may be terminated at any time prior to the Demerger by written consent of the parties hereto.

ARTICLE VIII

MISCELLANEOUS

 

1. Force Majeure

Neither party to this Agreement shall be liable for delay in the performance of any of its obligations hereunder if such delay results from causes beyond its reasonable control, including, without limitation, acts of God, fires, strikes, acts of war, or intervention of any government authority, but any such delay or failure shall be remedied by such party as soon as practicable.

 

2. Relationship of the Parties

Nothing contained in this Agreement is intended or is to be construed to constitute EPI, EPIL and NBL as partners or joint venturers or employees of the other party. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.

 

8


3. Counterparts

This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute this Agreement. This Agreement may be executed by facsimile (including electronically by PDF). The parties agree that facsimile copies of signatures have the same effect as original signatures.

 

4. Notices

Any notice or other communication required or permitted to be given to either party under this Agreement shall be given in writing and shall be delivered by hand or by facsimile (and promptly confirmed by registered mail, postage prepaid and return receipt requested, or by reputable overnight delivery service or courier), addressed to each party at the following addresses or such other address as may be designated by notice pursuant to this Article VII Section 4:

 

  If to NBL:      Neotope Biosciences Limited
       Treasury Building
       Lower Grand Canal Street
       Dublin 2, Ireland
       Attention: Director
  If to EPI:      Elan Pharmaceuticals, Inc.
       180 Oyster Point Blvd.
       South San Francisco, CA 94080
       Attention: Secretary
  If to EPIL:      Elan Pharma International Limited
       Treasury Building
       Lower Grand Canal Street
       Dublin 2, Ireland
       Attention: Director

Any notice or communication given in conformity with this Article VIII Section 4 shall be deemed to be effective when received by the addressee, if delivered by facsimile, hand or delivery service or courier, and four days after mailing, if mailed.

 

5. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of Ireland.

 

6. Severability

If any provision in this Agreement is deemed to be or becomes invalid, illegal or unenforceable, (i) such provision will be deemed amended to conform to applicable laws so as to be valid and enforceable or, if it cannot be so amended without materially altering the intention of the parties, it will be deleted, and (ii) the validity, legality and enforceability of the remaining provisions of this Agreement shall not be impaired or affected in any way.

 

9


7. Amendments

No amendment, modification or addition hereto shall be effective or binding on either party unless set forth in writing and executed by a duly authorized representative of both parties.

 

8. Waiver

No waiver of any right under this Agreement shall be deemed effective unless contained in a writing signed by the party charged with such waiver, and no waiver of any breach or failure to perform shall be deemed to be a waiver of any future breach or failure to perform or of any other right arising under this Agreement.

 

9. Headings

The section headings contained in this Agreement are included for convenience only and form no part of the agreement between the parties.

 

10. Assignment, Etc.

Neither party may assign its rights and obligations hereunder without the prior written consent of the other party; provided, however, that either party shall have the right to assign such rights and obligations hereunder to an Affiliate or to any Person with which such party is merged or consolidated or which purchases all or substantially all of the assets of such party.

 

11. No Effect on Other Agreements

No provision of this Agreement shall be construed so as to negate, modify or affect in any way the provisions of any other agreement between the parties unless specifically referred to, and solely to the extent provided in any such other agreement.

 

12. Successors

This Agreement will inure to the benefit of and be binding upon the successors of the parties hereto.

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Agreement on the date last written below, effective as of the Effective Date.

 

NEOTOPE BIOSCIENCES LIMITED
By:  

 

Name:  
Title:  
Date:  

 

10


ELAN PHARMACEUTICALS, INC.   ELAN PHARMA INTERNATIONAL LIMITED
By:  

 

  By:  

 

NAME:     Name:  
Title:     Title:  
Date:     Date:  

 

11

Exhibit 2.4

A SSET P URCHASE A GREEMENT

This Asset Purchase Agreement (this “ Agreement ”), is made and entered into as of December [ ], 2012, by and between, Elan Pharmaceuticals, Inc., a Delaware corporation (“ Seller ”), and Prothena Biosciences Inc, a Delaware corporation (“ Buyer ”).

WHEREAS, Elan Corporation, plc, an Irish public limited company (“ Elan ”), and Prothena Corporation plc, an Irish public limited company (“ Prothena ”), have entered into a Demerger Agreement, dated November 8, 2012 (the “ Demerger Agreement ”), for the purpose of accomplishing the separation of the Prothena Business (as that term is defined therein) into a separate, independent company through a demerger under Irish law (the “ Demerger ”);

WHEREAS, in connection with the Demerger and as part of the Pre-Demerger Restructuring (as defined in the Demerger Agreement), Seller wishes to sell and assign to Buyer, and Buyer wishes to purchase and assume from Seller, all of Seller’s right, title and interest in the Purchased Assets (as defined below) and the Assumed Liabilities (as defined below), subject to the terms and conditions set forth herein; and

WHEREAS, all capitalized terms used but not defined herein shall have the meanings given to them in the Demerger Agreement.

NOW, THEREFORE, subject to the Demerger Agreement and in consideration of the mutual agreements set forth herein and the payment by Buyer of the Purchase Price and the assumption by Buyer of the Assumed Liabilities, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed that:

1. Purchase . Prior to the Demerger and otherwise in accordance with and subject to the terms of the Demerger Agreement, Seller hereby sells, assigns, transfers, conveys and delivers to Buyer, and Buyer hereby purchases from Seller, all of Seller’s right, title and interest in (i) the assets set forth on Exhibit A and (ii) the working capital item balances, as of the date immediately prior to the date of consummation of the Demerger, set forth on Exhibit B attached hereto (collectively, the “ Purchased Assets ”).

2. Assumption of Liabilities . Prior to the Demerger and otherwise in accordance with and subject to the terms of the Demerger Agreement, Buyer shall assume and agree to pay, perform and discharge the liabilities and obligations relating to or associated with the Purchased Assets (collectively, the “ Assumed Liabilities ”).

3. Consideration . The consideration for the Purchased Assets shall be a cash payment of $3,000,000 (the “ Purchase Price ”), plus the assumption of the Assumed Liabilities.

4. The Demerger Agreement . This Agreement is subject in all respects to the terms and conditions of the Demerger Agreement. Nothing contained in this Agreement shall be deemed to supersede any of the covenants, agreements, representations or warranties of Elan, Seller, Prothena, or Buyer contained in the Demerger Agreement. In the event of a conflict between this Agreement and the Demerger Agreement, the terms of the Demerger Agreement shall control.

5. Benefit . This Agreement is intended solely to benefit the parties and their respective successors and assigns and shall not create any rights in or liabilities to any other parties or expand any rights in or liabilities to any other parties.


6. Governing Law; Waiver of Jury Trial . This Agreement, the legal relations between the parties and the adjudication and the enforcement thereof, shall be governed by and interpreted and construed in accordance with the substantive laws of the State of Delaware applicable to agreements made and to be performed wholly within that jurisdiction. The parties hereby expressly waive the right to a trial by jury in any action or proceeding brought by or against any of them relating to this agreement or the transactions contemplated hereby.

7. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.

 

2


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

 

SELLER:
ELAN PHARMACEUTICALS, INC.
By:    
  Name:
  Title:


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

BUYER:
PROTHENA BIOSCIENCES INC
By:    
  Name:
  Title

Exhibit 3.1

Companies Acts 1963 to 2012

 

 

A PUBLIC COMPANY LIMITED BY SHARES

 

 

MEMORANDUM

AND

ARTICLES OF ASSOCIATION

of

PROTHENA CORPORATION PUBLIC LIMITED COMPANY

(as amended by special resolutions passed up to • December 2012)

 

 

Incorporated the 26 th day of September 2012

 

 


COMPANIES ACTS, 1963 to 2012

 

 

A PUBLIC COMPANY LIMITED BY SHARES

 

 

MEMORANDUM OF ASSOCIATION

of

PROTHENA CORPORATION PUBLIC LIMITED COMPANY

 

 

 

1. The name of the Company is Prothena Corporation Public Limited Company.

 

2. The Company is to be a public limited company.

 

3. The objects for which the Company is established are:

 

  3.1 To carry on all or any of the business of manufacturers, exporters and importers, buyers, sellers, marketers and distributing agents of and dealers in all kinds of patent, pharmaceutical, medicinal and medicated products, articles and substances.

 

  3.2 To carry on any other business, except the issuing of policies of insurance, which may seem to the Company capable of being conveniently carried on in connection with the above, or calculated directly or indirectly to enhance the value of or render profitable any of the Company’s property or rights.

 

  3.3 To invest any monies of the Company in such investments and in such manner as may from time to time be determined, and to hold, sell or deal with such investments and generally to purchase, take on lease or in exchange or otherwise acquire any real and personal property and rights or privileges.

 

  3.4 To subscribe for, take, purchase or otherwise acquire and hold shares or other interests in, or securities of any other company having objects altogether or in part similar to those of this Company or carrying on any business capable of being carried on so as, directly or indirectly, to benefit this Company.

 

  3.5 To develop and turn to account any land acquired by the Company or in which it is interested and in particular by laying out and preparing the same for building purposes, constructing, altering, pulling down, decorating, maintaining, fitting up and improving buildings and conveniences, and by planting, paving, draining, farming, cultivating, letting on building lease or building agreement and by advancing money to and entering into contracts and arrangements of all kinds with builders, tenants and others.

 

  3.6

To acquire and undertake the whole or any part of the business, property, goodwill and assets of any person, firm or company carrying on or proposing to carry on any


  of the businesses which the Company is authorised to carry on, or which can be conveniently carried on in connection with the same, or may seem calculated directly or indirectly to benefit the Company.

 

  3.7 To employ the funds of the Company in the development and expansion of the business of the Company and all or any of its subsidiary or associated companies and in any other company whether now existing or hereafter to be formed and engaged in any like business of the Company or any of its subsidiary or associated companies or of any other industry ancillary thereto or which can conveniently be carried on in connection therewith.

 

  3.8 To lend money to such persons or companies either with or without security and upon such terms as may seem expedient.

 

  3.9 To borrow or otherwise raise money or carry out any other means of financing, whether or not by the issue of stock or other securities, and to enter into or issue interest and currency hedging and swap agreements, forward rate agreements, interest and currency futures or options and other forms of financial instruments, and to purchase, redeem or pay off any of the foregoing.

 

  3.10 To secure the payment of money or other performance of financial obligations in such manner as the Company shall think fit, whether or not by the issue of debentures or debenture stock, perpetual or otherwise, charged upon all or any of the Company’s property, present or future, including its uncalled capital.

 

  3.11 To adopt such means of making known the Company and its products and services as may seem expedient.

 

  3.12 To sell, improve, manage, develop, exchange, lease, mortgage, enfranchise, dispose of, turn to account or otherwise deal with all or any part of the property, undertaking, rights or assets of the Company and for such consideration as the Company might think fit. Generally to purchase, take on lease or in exchange or otherwise acquire any real and personal property and rights or privileges.

 

  3.13 To acquire and carry on any business carried on by a subsidiary or a holding Company of the Company or another subsidiary of a holding company of the Company.

 

  3.14 To provide services of any kind including the carrying on of advisory, consultancy, brokerage and agency business of any kind.

 

  3.15 To guarantee, grant indemnities in respect of, support or secure, whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company, or by both such methods, the performance of the contracts or obligations of and the repayment or payment of the principal amounts of and premiums, interest and dividends on any securities of any person, firm or company, including (without prejudice to the generality of the foregoing) any company which is for the time being the Company’s holding company as defined by section 155 of the Companies Act, 1963, or another subsidiary as defined by the said section of the Company’s holding company or otherwise associated with the Company in business notwithstanding the fact that the Company may not receive any consideration, advantage or benefit, direct or indirect from entering into such guarantee or other arrangement or transaction contemplated herein.

 

  3.16 To amalgamate with any other company.


  3.17 To apply for, purchase or otherwise acquire any patents, brevets d’invention, licences, trade marks, technology and know-how and the like conferring any exclusive or non-exclusive or limited right to use or any secret or other information as to any invention or technology which may seem capable of being used, for any of the purposes of the Company or the acquisition of which may seem calculated directly or indirectly to benefit the Company, and to use, exercise, develop or grant licences in respect of or otherwise turn to account the property rights or information so acquired.

 

  3.18 To enter into partnership or into any arrangement for sharing profits, union of interests, co-operation, joint venture or otherwise with any person or company or engage in any business or transaction capable of being conducted so as directly or indirectly to benefit the Company.

 

  3.19 To grant pensions or gratuities (to include death benefits) to any officers or employees or ex-officers or ex-employees of the Company, or its predecessors in business or the relations, families or dependants of any such persons, and to establish or support any non-contributory or contributory pension or superannuation funds, any associations, institutions, clubs, buildings and housing schemes, funds and trusts which may be considered calculated to benefit any such persons or otherwise advance the interests of the Company or of its members.

 

  3.20 To promote any company or companies for the purpose of acquiring all or any of the property and liabilities of this Company or for any other purpose which may seem directly or indirectly calculated to benefit this Company.

 

  3.21 To remunerate any person or company for services rendered or to be rendered in placing or assisting to place or guaranteeing the placing of any of the shares in the Company’s capital or any debentures, debenture stock or other securities of the Company, or in or about the formation or promotion of the Company or the conduct of its business.

 

  3.22 To draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, bills of lading, warrants, debentures, letters of credit and other negotiable or transferable instruments.

 

  3.23 To undertake and execute any trusts the undertaking whereof may seem desirable, whether gratuitously or otherwise.

 

  3.24 To procure the Company to be registered or recognised in any country or place.

 

  3.25 To promote freedom of contract and to counteract and discourage interference therewith, to join any trade or business federation, union or association, with a view to promoting the Company’s business and safeguarding the same.

 

  3.26 To do all or any of the above things in any part of the world as principal, agent, contractor, trustee or otherwise, and by or through trustees, agents or otherwise and either alone or in conjunction with others.

 

  3.27 To distribute any of the property of the Company in specie among the members.

 

  3.28 To do all such other things as the Company may think incidental or conducive to the attainment of the above objects or any of them.


NOTE A: The objects specified in each paragraph of this clause shall, except where otherwise expressed in such paragraph, be in no wise limited or restricted by reference to, or inference from, the terms of any other paragraph.

NOTE B: It is hereby declared that the word “company” in this clause (except where it refers to this Company) will be deemed to include any partnership or other body of persons, whether or not incorporated and whether formed in Ireland or elsewhere.

 

4. The liability of the members is limited.

 

5. The authorised share capital of the Company is US$1,000,000 and €220,000 comprised of 100,000,000 Ordinary Shares of $0.01 each and 10,000 Euro Deferred Shares of €22 each.


We, the several persons whose names and addresses are subscribed, wish to be formed into a company in pursuance of this memorandum of association, and we agree to take the number of shares in the capital of the Company set opposite our respective names.

 

Names, Addresses and Descriptions

of Subscribers

Subscriber

  

Number of shares

taken by each

p.p Goodbody Subscriber One Limited 1

IFSC

North Wall Quay

Dublin

 

   1

Limited Liability Company

 

  

Signed: David Widger

 

  

p.p Goodbody Subscriber Two Limited 1

IFSC

North Wall Quay

Dublin

 

   1

Limited Liability Company

 

  

Signed: Mark Ward

 

  

Total Number of Shares Taken: 2

  
 
Dated 20 September 2012   
Witness to the above signatures:   

Charlene Connolly

Trainee Solicitor

A&L Goodbody

IFSC,

North Wall Quay,

Dublin 1

  


Companies Acts 1963 to 2012

A PUBLIC COMPANY LIMITED BY SHARES

ARTICLES OF ASSOCIATION

of

Prothena Corporation Public Limited Company

PRELIMINARY

 

1. The regulations contained in Table A in the First Schedule to the 1963 Act shall not apply to the Company.

 

2.

 

  2.1 In these Articles:

 

“1963 Act”    means the Companies Act 1963 (No. 33 of 1963) as amended
by the Companies Acts 1977 to 2005 and Parts 2 and 3 of the
Investment Funds, Companies and Miscellaneous Provisions
Act 2006 and all statutory instruments which are to be read as
one with, or construed, or read together as one with the
Companies Acts.
“1983 Act”    means the Companies (Amendment) Act 1983.
“1990 Act”    means the Companies Act 1990.
“Address”    includes, without limitation, any number or address used for the purposes of communication by way of electronic mail or other electronic communication.
“Articles” or “Articles of Association”    means these articles of association of the Company, as amended from time to time by Special Resolution.
“Assistant Secretary”    means any person(s) appointed by the Secretary from time to time to assist the Secretary.
“Auditors”    means the persons for the time being performing the duties of auditors of the Company.
“Board”    means the board of directors for the time being of the Company.
“clear days”    means, in relation to a period of notice, that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect.


“Companies Acts”    means the Companies Acts 1963-2012.
“Company”    means the above-named company.
“Court”    means the Irish High Court.
“Directors”    means the directors for the time being of the Company.
“dividend”    includes interim dividends and bonus dividends.
“Elan”    means Elan Corporation plc, a public limited company incorporated under the laws of Ireland (registered no. 30356);
electronic communication”    shall have the meaning given to those words in the Electronic Commerce Act 2000.
electronic signature”    shall have the meaning given to those words in the Electronic Commerce Act 2000.
“Euro Deferred Shares”    means euro deferred shares of nominal value €22 per share (or such other nominal value as may result from any reorganisation of capital) in the capital of the Company, having the rights and being subject to the limitations set out in these Articles;
“Exchange”    means any securities exchange or other system on which the Shares of the Company may be listed or otherwise authorised for trading from time to time.
“Exchange Act”    shall have the meaning given to such term in Article 145.
“Members”    mean persons who have agreed to become a Member of the Company and whose name is entered in the Register of Members as a registered holder of Shares and each and any of them individually a Member.
“Memorandum”    means the memorandum of association of the Company as amended from time to time by Special Resolution.
“month”    means a calendar month.
“officer”    means any executive of the Company that has been designated by the Company the title “officer” and for the avoidance of doubt does not have the meaning given to such term under the 1963 Act.
“Ordinary Resolution”    means an ordinary resolution of the Company’s Members within the meaning of section 141 of the 1963 Act.
Ordinary Shares”    means the ordinary shares of nominal value $0.01 per share (or such other nominal value as may result from


     any reorganisation of capital) in the capital of the Company,
having the rights and being subject to the limitations set out in
these Articles;
“paid-up”    means paid-up as to the nominal value and any premium payable in respect of the issue of any Shares and includes credited as paid-up.
“Redeemable Shares”    means redeemable shares in accordance with section 206 of the 1990 Act.
Register of Members” or “Register”    means the register of Members of the Company maintained by or on behalf of the Company, in accordance with the Companies Acts and includes (except where otherwise stated) any duplicate Register of Members.
“registered office”    means the registered office for the time being of the Company.
“Seal”    means the seal of the Company, if any, and includes every duplicate seal.
“Secretary”    means the person appointed by the Board to perform any or all of the duties of secretary of the Company and includes an Assistant Secretary and any person appointed by the Board to perform the duties of secretary of the Company.
“Share” and “Shares”    means a share or shares in the capital of the Company.
“Shareholder Rights Plan”    means a shareholder rights plan providing for the right of Members to purchase securities of the Company in the event of any proposed acquisition of a majority of the Shares where such acquisition is not approved or recommended by the Board.
“Special Resolution”    means a special resolution of the Company’s Members within the meaning of section 141 of the 1963 Act.
“Transaction”    means the separation and distribution of the drug discovery platform business from Elan to the Company in consideration for the Company issuing directly to the holders of Elan ordinary shares and Elan American Depository Shares, on a pro rata basis, Prothena ordinary shares representing 99.99% of the issued shares of the Company and the holding by Elan Science One Limited, a wholly owned subsidiary of Elan, of 18% of the issued ordinary shares of the Company.

 

  2.2 In the Articles:


  (a) words importing the singular number include the plural number and vice-versa;

 

  (b) words importing the feminine gender include the masculine gender and vice versa;

 

  (c) words importing persons include any company, partnership or other body of persons, whether corporate or not, any trust and any government, governmental body or agency or public authority, whether of Ireland or elsewhere;

 

  (d) “written” and “in writing” include all modes of representing or reproducing words in visible form, including electronic communication;

 

  (e) references to a company include any body corporate or other legal entity, whether incorporated or established in Ireland or elsewhere;

 

  (f) references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced from time to time;

 

  (g) any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;

 

  (h) reference to “officer” or “officers” in these Articles means any executive that has been designated by the Company as an “officer” and, for the avoidance of doubt, shall not have the meaning given to such term in the 1963 Act and any such officers shall not constitute officers of the Company within the meaning of section 2(1) of the 1963 Act.

 

  (i) headings are inserted for reference only and shall be ignored in construing these Articles; and

 

  (j) references to US$, USD, $ or dollars shall mean United States dollars, the lawful currency of the United States of America and references to €, euro, or EUR shall mean the euro, the lawful currency of Ireland.

SHARE CAPITAL; ISSUE OF SHARES

 

3. Without prejudice to the power of the Board to issue and allot shares pursuant to the following articles, the authorised share capital of the Company at the date of adoption of these articles is US$1,000,000 and €220,000 comprised of 100,000,000 Ordinary Shares of $0.01 each and 10,000 Euro Deferred Shares of €22 each.

 

4. Subject to the Companies Acts and the rights conferred on the holders of any other class of Shares, any Share in the Company may be issued with or have attached to it such preferential, deferred, qualified or special rights, privileges or conditions as the Company may by Ordinary Resolution decide or, insofar as the Ordinary Resolution

 

5. does not make specific provision, as the Board may from time to time determine.

 

6.

Subject to the provisions of these Articles relating to new Shares, the Shares shall be at the disposal of the Directors, and they may (subject to the provisions of these Articles and the Companies Acts) allot, grant options over or otherwise dispose of them to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of


  the Company and its Members, but so that no Share shall be issued at a discount save in accordance with section 26(5) and 28 of the 1983 Act, and so that, in the case of Shares offered to the public for subscription, the amount payable on application on each Share shall not be less than one-quarter of the nominal amount of the Share and the whole of any premium thereon.

 

7. Subject to any requirement to obtain the approval of Members under any laws, regulations or the rules of any Exchange, the Board is authorised, from time to time, in its discretion, to grant such persons, for such periods and upon such terms as the Board deems advisable, options to purchase or subscribe for any number of Shares of any class or classes or of any series of any class as the Board may deem advisable, and to cause warrants or other appropriate instruments evidencing such options to be issued.

 

8. Subject to the provisions of Part XI of the 1990 Act and the other provisions of this Article 8, the Company may:

 

  8.1 pursuant to section 207 of the 1990 Act, issue any Shares of the Company which are to be redeemed or are liable to be redeemed at the option of the Company or the Member on such terms and in such manner as may be determined by the Company in general meeting (by Special Resolution) on the recommendation of the Directors;

 

  8.2 redeem Shares of the Company on such terms as may be contained in, or be determined pursuant to the provisions of, these Articles. Subject as aforesaid, the Company may cancel any Shares so redeemed or may hold them as treasury shares and re-issue such treasury shares as Shares of any class or classes or cancel them;

 

  8.3 subject to or in accordance with the provisions of the Companies Acts and without prejudice to any relevant special rights attached to any class of shares, pursuant to section 211 of the 1990 Act, purchase any of its own Shares (including any Redeemable Shares and without any obligation to purchase on any pro rata basis as between Members or Members of the same class) and may cancel any shares so purchased or hold them as treasury (as defined by section 209 of the 1990 Act) and may reissue any such shares as shares of any class or classes or cancel them; or

 

  8.4 pursuant to section 210 of the 1990 Act, convert any of its Shares into Redeemable Shares provided that the total number of Shares which shall be redeemable pursuant to this authority shall not exceed the limit in section 210(4) of the 1990 Act.

 

9.     

 

  9.1 The Directors are, for the purposes of section 20 of the 1983 Act, generally and unconditionally authorised to exercise all powers of the Company to allot and issue relevant securities (as defined by the said section 20) up to the amount of the Company’s authorised share capital and to allot and issue any Shares purchased by the Company pursuant to the provisions of Part XI of the 1990 Act and held as treasury shares and this authority shall expire five years from the date of adoption of these Articles.

 

  9.2 The Directors are hereby empowered pursuant to sections 23 and 24(1) of the 1983 Act to allot equity securities within the meaning of the said section 23 for cash pursuant to the authority conferred by Article 9.1 as if section 23(1) of the said 1983 Act did not apply to any such allotment. The Company may before the expiry of such authority make an offer or agreement which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of such an offer or agreement as if the power conferred by Article 9.1 had not expired.


  9.3 The Company may issue share warrants to bearer pursuant to section 88 of the 1963 Act.

 

10. The Company may pay commission to any person in consideration of any person subscribing or agreeing to subscribe, whether absolutely or conditionally, for the shares in the Company or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the Company on such terms and, subject to the provisions of the Companies Acts and to such conditions as the Directors may determine, including, without limitation, by paying cash or allotting and issuing fully or partly paid shares or any combination of the two. The Company may also on any issue of Shares pay such brokerage as may be lawful.

ORDINARY SHARES

 

11. The holders of the Ordinary Shares shall be:

 

  11.1 entitled to dividends on a pro rata basis in accordance with the relevant provisions of these Articles;

 

  11.2 entitled to participate pro rata in the total assets of the Company in the event of the Company’s winding up; and

 

  11.3 entitled, subject to the right of the Company to set record dates for the purpose of determining the identity of Members entitled to notice of and/or vote at a general meeting, to attend general meetings of the Company and shall be entitled to one vote for each ordinary share registered in her name in the Register of Members, both in accordance with the relevant provisions of these Articles.

 

12. An Ordinary Share shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company (including any agent or broker acting on behalf of the Company) and any third party pursuant to which the Company acquires or will acquire Ordinary Shares, or an interest in Ordinary Shares, from the relevant third party. In these circumstances, the acquisition of such shares by the Company shall constitute the redemption of a Redeemable Share in accordance with Part XI of the 1990 Act.

 

13. All Ordinary Shares shall rank pari passu with each other in all respects.

EURO DEFERRED SHARES

 

14. The rights and restrictions attaching to the Euro Deferred Shares shall rank pari passu with the Ordinary Shares. The holders of the Ordinary Shares and Euro Deferred Share shall be treated as a single class in all respects, including but not limited to, voting on all resolutions of the Company whether proposed in a general meeting or by a written shareholders’ resolution, save that the Euro Deferred Shares shall be mandatorily redeemed immediately after completion of the Transaction.

 

15. The redemption consideration payable by the Company to the holder of each Euro Deferred Share on the redemption of such share shall be the consideration paid by the holder of the Euro Deferred Share on issue of the Euro Deferred Share. On the redemption date, the Company shall pay to such holder the amount due to him in respect of such redemption and each of the holders of the Euro Deferred Shares shall be bound to deliver to the Company, at its registered address, the share certificates for such Euro Deferred Shares held by him.


ISSUE OF WARRANTS

 

16. The Board may issue warrants to subscribe for any class of Shares or other securities of the Company on such terms as it may from time to time determine.

CERTIFICATES FOR SHARES

 

17. Every Member shall be entitled without payment to receive one certificate for all the Shares of each class held by him or several certificates each for one or more of his Shares upon payment for every certificate after the first of such reasonable out of pocket expenses as the Directors may determine provided that the Company shall not be bound to issue more than one certificate for Shares held jointly by several persons and delivery of a certificate to one joint holder shall be a sufficient delivery to all of them. The Company shall not be bound to register more than four persons as joint holders of any Share (except in the case of executors or trustees of a deceased Member). Every certificate shall be sealed with the Seal or under the official seal kept by the Company by virtue of section 3 of the Companies (Amendment) Act, 1977 and shall specify the number, class and distinguishing number (if any) of the Shares to which it relates and the amount or respective amounts paid up thereon. The Board may determine, either generally or in a particular case, that any signature on certificates for shares (or certificates or agreements or other documents evidencing the issue by the Company of awards under any share option, share incentive or other form of employee benefit plans adopted by the Company from time to time) need not be autographic but may be affixed to such certificates, agreements or other documents by some mechanical means or may be facsimiles printed on such certificates, agreements or other documents.

 

18. Where only some of the Shares comprised in a share certificate are transferred, the old certificate shall be cancelled and the new certificate for the balance of such Shares shall be issued in lieu without charge.

 

19. Any two or more certificates representing Shares of any one class held by any Member at his request may be cancelled and a single new certificate for such Shares issued in lieu, without charge unless the Directors otherwise determine. If any Member shall surrender for cancellation a share certificate representing shares held by him and request the Company to issue in lieu two or more Share certificates representing such Shares in such proportions as he may specify, the Directors may comply, if they think fit, with such request, subject to the payment by him of such charge as may be determined by the Directors.

 

20. If a share certificate is defaced, worn out, lost, stolen or destroyed, it may be replaced on such terms (if any) as to evidence an indemnity and payment of any exceptional expenses incurred by the Company as the Directors may determine but otherwise free of charge, and (in the case of defacement or wearing out) on delivery up of the old certificate.

REGISTER OF MEMBERS

 

21. The Company shall maintain or cause to be maintained a Register of its Members in accordance with the Companies Acts.

 

22. If the Board considers it necessary or appropriate, the Company may establish and maintain a duplicate Register or Registers of Members at such location or locations within or outside Ireland as the Board thinks fit. The original Register of Members shall be treated as the Register of Members for the purposes of these Articles and the Companies Acts.

 

23. The Company, or any agent(s) appointed by it to maintain the duplicate Register of Members in accordance with these Articles, shall as soon as practicable and on a regular basis record or procure the recording in the original Register of Members all transfers of Shares effected on any duplicate Register of Members and shall at all times maintain the original Register of Members in such manner as to show at all times the Members for the time being and the Shares respectively held by them, in all respects in accordance with the Companies Acts.


24. If any Share shall stand in the names of two or more persons, the person first named in the Register of Members shall be deemed the sole holder thereof as regards service of notices and, subject to the provisions of these Articles, all or any other matters connected with the Company.

TRANSFER OF SHARES

 

25. Subject to such of the restrictions of these Articles and to such of the conditions of issue or transfer as may be applicable, the Shares of any Member may be transferred by instrument in writing (including writing in electronic form) in such form as the Board may approve from time to time.

 

  25.1 The instrument of transfer of any Share shall be in writing and shall be executed with a manual signature or facsimile signature (which may be machine imprinted or otherwise). The instrument of transfer need not be signed by the transferee.

 

  25.2 In the case of transfers to Cede & Co (or any other affiliate of Depositary Trust Company) the instrument of transfer shall not be effective until executed by:

 

  24.2.1 the Secretary (or such person as may be nominated by the Secretary for this purpose) on behalf of the Company; and

 

  24.2.2 by the transferor or alternatively by or on behalf of the transferor by the Secretary (or such person as may be nominated by the Secretary for this purpose) on behalf of the Company, and the Company shall be deemed to have been irrevocably appointed agent for the transferor of such Share or Shares with full power to execute, complete and deliver in the name of and on behalf of the transferor of such Share or Shares all such transfers of Shares held by the Members in the share capital of the Company.

 

  25.3 Any document which records the name of the transferor, the name of the transferee, the class and number of Shares agreed to be transferred, the date of the agreement to transfer Shares, shall, once executed in accordance with this clause, be deemed to be a proper instrument of transfer for the purposes of section 81 of the 1963 Act.

 

  25.4 In the case of transfers other than those to Cede & Co (or any other affiliate of Depositary Trust Company), the instrument of transfer of any Share shall be executed by the transferor or alternatively for and on behalf of the transferor by the Secretary (or such person as may be nominated by the Secretary for this purpose) on behalf of the Company, and the Company shall be deemed to have been irrevocably appointed agent for the transferor of such Share or Shares with full power to execute, complete and deliver in the name of and on behalf of the transferor of such Share or Shares all such transfers of Shares held by the Members in the share capital of the Company. Any document which records the name of the transferor, the name of the transferee, the class and number of Shares agreed to be transferred, the date of the agreement to transfer Shares, shall, once executed in accordance with this clause, be deemed to be a proper instrument of transfer for the purposes of section 81 of the 1963 Act.

 

  25.5 The transferor shall be deemed to remain the holder of the Share until the name of the transferee is entered on the Register in respect thereof, and neither the title of the transferee nor the title of the transferor shall be affected by any irregularity or invalidity in the proceedings in reference to the sale should the Directors so determine.


  25.6 The Company, at its absolute discretion and insofar as the Companies Acts or any other applicable law permits, may, or may procure that a subsidiary of the Company shall, pay Irish stamp duty arising on a transfer of Shares on behalf of the transferee of such Shares of the Company. If stamp duty resulting from the transfer of Shares in the Company which would otherwise be payable by the transferee is paid by the Company or any subsidiary of the Company on behalf of the transferee, then in those circumstances, the Company shall, on behalf of its subsidiary, be entitled to (i) seek reimbursement of the stamp duty from the transferee, (ii) set-off the stamp duty against any dividends payable to the transferee of those Shares and (iii) to claim a first and permanent lien on the Shares on which stamp duty has been paid by its subsidiary for the amount of stamp duty paid.

 

  25.7 Upon every transfer of Shares the certificate (if any) held by the transferor shall be given up to be cancelled, and shall forthwith be cancelled accordingly, and subject to Article 17 a new certificate may be issued without charge to the transferee in respect of the Shares transferred to her, and if any of the Shares included in the certificate so given up shall be retained by the transferor, a new certificate in respect thereof may be issued to her without charge. The Company shall also retain the instrument(s) of transfer.

 

  25.8 Notwithstanding the provisions of these Articles and subject to any regulations made under section 239 of the 1990 Act, title to any Shares in the Company may also be evidenced and transferred without a written instrument in accordance with section 239 of the 1990 Act or any regulations made thereunder. The Directors shall have power to permit any class of Shares to be held in uncertificated form and to implement any arrangements they think fit for such evidencing and transfer which accord with such regulations and in particular shall, where appropriate, be entitled to disapply or modify all or part of the provisions in these Articles with respect to the requirement for written instruments of transfer and share certificates (if any), in order to give effect to such regulations.

 

26. The Board, may in its absolute discretion and without assigning any reason for its decision, decline to register any transfer of any Share which is not a fully paid Share. The Board may also, in its absolute discretion, and without assigning any reason, refuse to register a transfer of any Share unless:

 

  26.1 the instrument of transfer is lodged with the Company accompanied by the certificate for the Shares (if any) to which it relates (which shall upon registration of the transfer be cancelled) and such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer;

 

  26.2 the instrument of transfer is in respect of only one class of Shares;

 

  26.3 the instrument of transfer is properly stamped (in circumstances where stamping is required);

 

  26.4 in the case of a transfer to joint holders, the number of joint holders to which the Share is to be transferred does not exceed four;

 

  26.5 it is satisfied, acting reasonably, that all applicable consents, authorisations, permissions or approvals of any governmental body or agency in Ireland or any other applicable jurisdiction required to be obtained under relevant law prior to such transfer have been obtained; and


  26.6 it is satisfied, acting reasonably, that the transfer would not violate the terms of any agreement to which the Company (or any of its subsidiaries) and the transferor are party or subject.

 

27. If the Board shall refuse to register a transfer of any Share, it shall, within two (2) months after the date on which the transfer was lodged with the Company, send to each of the transferor and the transferee notice of such refusal.

 

28. The Company shall not be obligated to make any transfer to an infant or to a person in respect of whom an order has been made by a competent court or official on the grounds that she is or may be suffering from mental disorder or is otherwise incapable of managing her affairs or under other legal disability.

REDEMPTION AND REPURCHASE OF SHARES

 

29. Subject to the provisions of the Companies Act and these Articles, the Company may, pursuant to Section 207 of the 1990 Act, issue any Shares of the Company which are to be redeemed or are liable to be redeemed at the option of the Company or the Member of the Company on such terms and in such manner as may be determined by the Company in general meeting (by Special Resolution) on the recommendation of the Board.

 

30. Subject to the Companies Acts, the Company may, without prejudice to any relevant special rights attached to any class of Shares pursuant to section 211 of the 1990 Act, purchase any of its own Shares (including any Redeemable Shares and without any obligation to purchase on any pro rata basis as between Members or Members of the same class) and may cancel any Shares so purchased or hold them as treasury shares (as defined in section 209 of the 1990 Act) and may reissue any such Shares as Shares of any class or classes.

 

31. The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Companies Acts.

 

32. The holder of the Shares being purchased shall be bound to deliver up to the Company at its registered office or such other place as the Board shall specify, the certificate(s) (if any) thereof for cancellation and thereupon the Company shall pay to her the purchase or redemption monies or consideration in respect thereof.

VARIATION OF RIGHTS OF SHARES

 

33. If at any time the share capital of the Company is divided into different classes of Shares, the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may be varied or abrogated with the consent in writing of the holders of three-quarters of all the votes of the issued Shares of that class, or with the sanction of a Special Resolution passed at a general meeting of the holders of the Shares of that class.

 

34. The provisions of these Articles relating to general meetings of the Company shall apply mutatis mutandis to every such general meeting of the holders of one class of Shares except that the necessary quorum shall be one or more persons holding or representing by proxy at least one-half of the issued Shares of the class.

 

35. The rights conferred upon the holders of the Shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by (i) the creation or issue of further Shares ranking pari passu therewith; (ii) a purchase or redemption by the Company of its own Shares; or (iii) the creation or issue for full value (as determined by the Board) of further Shares ranking as regards participation in the profits or assets of the Company or otherwise in priority to them.


LIEN ON SHARES

 

36. The Company shall have a first and paramount lien on every Share (not being a fully paid Share) for all monies (whether presently payable or not) payable at a fixed time or called in respect of that Share. The Directors, at any time, may declare any Share to be wholly or in part exempt from the provisions of this Article. The Company’s lien on a Share shall extend to all monies payable in respect of it.

 

37. The Company may sell in such manner as the Directors determine any Share on which the Company has a lien if a sum in respect of which the lien exists is presently payable and is not paid within fourteen clear days after notice demanding payment, and stating that if the notice is not complied with the Share may be sold, has been given to the holder of the Share or to the person entitled to it by reason of the death or bankruptcy of the holder.

 

38. To give effect to a sale, the Directors may authorise some person to execute an instrument of transfer of the Share sold to, or in accordance with the directions of, the transferee. The transferee shall be entered in the Register as the holder of the Share comprised in any such transfer and she shall not be bound to see to the application of the purchase monies nor shall her title to the Share be affected by any irregularity in or invalidity of the proceedings in reference to the sale, and after the name of the transferee has been entered in the Register, the remedy of any person aggrieved by the sale shall be in damages only and against the Company exclusively.

 

39. The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists as is presently payable and any residue (upon surrender to the Company for cancellation of the certificate for the Shares sold and subject to a like lien for any monies not presently payable as existed upon the Shares before the sale) shall be paid to the person entitled to the Shares at the date of the sale.

 

40. Whenever any law for the time being of any country, state or place imposes or purports to impose any immediate or future or possible liability upon the Company to make any payment or empowers any government or taxing authority or government official to require the Company to make any payment in respect of any Shares registered in the Register as held either jointly or solely by any Members or in respect of any dividends, bonuses or other monies due or payable or accruing due or which may become due or payable to such Member by the Company on or in respect of any Shares registered as mentioned above or for or on account or in respect of any Member and whether in consequence of:

 

  40.1 the death of such Member;

 

  40.2 the non-payment of any income tax or other tax by such Member;

 

  40.3 the non-payment of any estate, probate, succession, death, stamp or other duty by the executor or administrator of such Member or by or out of her estate; or

 

  40.4 any other act or thing;

in every such case (except to the extent that the rights conferred upon holders of any class of Shares under the Company liable to make additional payments in respect of sums withheld on account of the foregoing):

 

  40.5 the Company shall be fully indemnified by such Member or her executor or administrator from all liability;


  40.6 the Company shall have a lien upon all dividends and other monies payable in respect of the Shares registered in the Register as held either jointly or solely by such Member for all monies paid or payable by the Company as referred to above in respect of such Shares or in respect of any dividends or other monies thereon or for or on account or in respect of such Member under or in consequence of any such law, together with interest at the rate of 15% per annum (or such other rate as the Board may determine) thereon from the date of payment to date of repayment, and the Company may deduct or set off against such dividends or other monies so payable any monies paid or payable by the Company as referred to above together with interest at the same rate;

 

  40.7 the Company may recover as a debt due from such Member or her executor or administrator (wherever constituted) any monies paid by the Company under or in consequence of any such law and interest thereon at the rate and for the period referred to above in excess of any dividends or other monies then due or payable by the Company; and

 

  40.8 the Company may if any such money is paid or payable by it under any such law as referred to above refuse to register a transfer of any Shares by any such Member or her executor or administrator until such money and interest is set off or deducted as referred to above or in the case that it exceeds the amount of any such dividends or other monies then due or payable by the Company, until such excess is paid to the Company.

Subject to the rights conferred upon the holders of any class of Shares, nothing in this Article 39 will prejudice or affect any right or remedy which any law may confer or purport to confer on the Company. As between the Company and every such Member as referred to above (and, her executor, administrator and estate, wherever constituted), any right or remedy which such law shall confer or purport to confer on the Company shall be enforceable by the Company.

CALLS ON SHARES

 

41. Subject to the terms of allotment, the Directors may make calls upon the Members in respect of any monies unpaid on their Shares and each Member (subject to receiving at least fourteen clear days’ notice specifying when and where payment is to be made) shall pay to the Company as required by the notice the amount called on her Shares. A call may be required to be paid by instalments. A call may be revoked before receipt by the Company of a sum due thereunder, in whole or in part and payment of a call may be postponed in whole or in part.

 

42. A call shall be deemed to have been made at the time when the resolution of the Directors authorising the call was passed.

 

43. A person on whom a call is made shall (in addition to a transferee) remain liable notwithstanding the subsequent transfer of the Share in respect of which the call is made.

 

44. The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof.

 

45. If a call remains unpaid after it has become due and payable, the person from whom it is due and payable shall pay interest on the amount unpaid from the day it became due until it is paid at the rate fixed by the terms of allotment of the Share or in the notice of the call or, if no rate is fixed, at the appropriate rate (as defined by the Companies Acts) but the Directors may waive payment of the interest wholly or in part.


46. An amount payable in respect of a Share on allotment or at any fixed date, whether in respect of nominal value by way of premium, shall be deemed to be a call and if it is not paid the provisions of these Articles shall apply as if that amount had become due and payable by virtue of a call.

 

47. Subject to the terms of allotment, the Directors may make arrangements on the issue of Shares for a difference between the holders in the amounts and times of payment of calls on their Shares.

 

48. The Directors may, if they think fit, receive from any Member willing to advance the same, all or any part of the monies uncalled and unpaid upon any Shares held by her, and upon all or any of the monies so advanced may pay (until the same would, but for such advance, become payable) interest at such rate as may be agreed upon between the Directors and the Member paying such sum in advance.

FORFEITURE

 

49. If a Member fails to pay any call or instalment of a call on the day appointed for payment thereof, the Directors, at any time thereafter during such times as any part of the call or instalment remains unpaid, may serve a notice on her requiring payment of so much of the call or instalment as is unpaid together with any interest which may have accrued.

 

50. The notice shall state a further day (not earlier than the expiration of fourteen clear days from the date of service of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed the Shares in respect of which the call was made will be liable to be forfeited.

 

51. If the requirements of any such notice as aforesaid are not complied with then, at any time thereafter before the payment required by the notice has been made, any Shares in respect of which the notice has been given may be forfeited by a resolution of the Directors to that effect. The forfeiture shall include all dividends or other monies payable in respect of the forfeited Shares and not paid before forfeiture. The Directors may accept a surrender of any Share liable to be forfeited hereunder.

 

52. On the trial or hearing of any action for the recovery of any money due for any call it shall be sufficient to prove that the name of the Member sued is entered in the Register as the holder, or one of the holders, of the Shares in respect of which such debt accrued, that the resolution making the call is duly recorded in the minute book and that notice of such call was duly given to the Member sued, in pursuance of these Articles, and it shall not be necessary to prove the appointment of the Directors who made such call nor any other matters whatsoever, but the proof of the matters aforesaid shall be conclusive evidence of the debt.

 

53. A forfeited Share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the Directors think fit. Where for the purposes of its disposal such a Share is to be transferred to any person, the Directors may authorise some person to execute an instrument of transfer of the Share to that person. The Company may receive the consideration, if any, given for the Share on any sale or disposition thereof and may execute a transfer of the Share in favour of the person to whom the Share is sold or disposed of and thereupon she shall be registered as the holder of the Share and shall not be bound to see to the application of the purchase money, if any, nor shall her title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share.

 

54.

A person whose Shares have been forfeited shall cease to be a Member in respect of the forfeited Shares, but nevertheless shall remain liable to pay to the Company all monies which,


  at the date of forfeiture, were payable by her to the Company in respect of the Shares, without any deduction or allowance for the value of the Shares at the time of forfeiture but her liability shall cease if and when the Company shall have received payment in full of all such monies in respect of the Shares.

 

55. A statutory declaration or affidavit that the declarant is a Director or the Secretary of the Company, and that a Share in the Company has been duly forfeited on the date stated in the declaration, shall be conclusive evidence of the facts therein stated as against all persons claiming to be entitled to the Share.

 

56. The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the nominal value of the Share or by way of premium, as if the same had been payable by virtue of a call duly made and notified.

 

57. The Directors may accept the surrender of any Share which the Directors have resolved to have been forfeited upon such terms and conditions as may be agreed and, subject to any such terms and conditions, a surrendered Share shall be treated as if it has been forfeited.

NON-RECOGNITION OF TRUSTS

 

58. The Company shall not be obligated to recognise any person as holding any Share upon any trust (except as is otherwise provided in these Articles or to the extent required by law) and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future, or partial interest in any Share, or any interest in any fractional part of a Share, or (except only as is otherwise provided by these Articles or the Companies Acts) any other rights in respect of any Share except an absolute right to the entirety thereof in the registered holder. This shall not preclude the Company from requiring the Members or a transferee of Shares to furnish to the Company with information as to the beneficial ownership of any Share when such information is reasonably required by the Company.

TRANSMISSION OF SHARES

 

59. In case of the death of a Member, the survivor or survivors where the deceased was a joint holder, and the legal personal representatives of the deceased where she was a sole holder, shall be the only persons recognised by the Company as having any title to her interest in the Shares, but nothing herein contained shall release the estate of any such deceased holder from any liability in respect of any Shares which had been held by her solely or jointly with other persons.

 

60. Any person becoming entitled to a Share in consequence of the death or bankruptcy or liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may from time to time be required by the Board and subject as hereinafter provided, elect either to be registered himself as holder of the Share or to make such transfer of the Share to such other person nominated by her and to have such person registered as the transferee thereof, but the Board shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by that Member before her death or bankruptcy as the case may be.

 

61. If the person so becoming entitled shall elect to be registered himself as holder, she shall deliver or send to the Company a notice in writing signed by her stating that she so elects.

 

62.

Subject to Article 62, a person becoming entitled to a Share by reason of the death or bankruptcy or liquidation or dissolution of the holder (or in any other case than by transfer) shall be entitled to the same dividends and other advantages to which she would be entitled if


  she were the registered holder of the Share, except that she shall not, before being registered as a Member in respect of the Share, be entitled in respect of it to exercise any right conferred by Membership in relation to meetings of the Company provided however that the Board may at any time give notice requiring any such person to elect either to be registered himself or to transfer the Share and if the notice is not complied with within ninety (90) days the Board may thereafter withhold payment of all dividends, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with.

 

63. The Board may at any time give notice requiring a person entitled by transmission to a Share to elect either to be registered himself or to transfer the Share and if the notice is not complied with within sixty (60) days the Board may withhold payment of all dividends and other monies payable in respect of the Share until the requirements of the notice have been complied with.

ALTERATION OF CAPITAL; AMENDMENT OF MEMORANDUM OF

ASSOCIATION; AND CHANGE OF LOCATION OF REGISTERED OFFICE

 

64. The Company may by Ordinary Resolution:

 

  64.1 divide its share capital into several classes and attach to them respectively any preferential, deferred, qualified or special rights, privileges or conditions;

 

  64.2 increase the authorised share capital by such sum to be divided into Shares of such nominal value, as such Ordinary Resolution shall prescribe;

 

  64.3 consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares;

 

  64.4 by subdivision of its existing Shares or any of them divide the whole or any part of its share capital into Shares of smaller nominal value than is fixed by the Memorandum subject to section 68(1)(d) of the 1963 Act, so, however, that in the sub-division the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in the case of the Share from which the reduced Share is derived;

 

  64.5 cancel any Shares that at the date of the passing of the relevant Ordinary Resolution have not been taken or agreed to be taken by any person; and

 

  64.6 subject to applicable law, change the currency denomination of its share capital.

 

65. Whenever as a result of an issuance, alteration, reorganisation, consolidation, division, or subdivision of the share capital of the Company any Members would become entitled to fractions of a Share, no such fractions shall be issued or delivered to Members. All such fractions of a Share will be aggregated into whole Shares and sold in the open market at prevailing market prices and the aggregate cash proceeds from such sale (net of tax, commissions, costs and other expenses) shall be distributed on a pro rata basis, rounding down to the nearest cent, to each Member who would otherwise have been entitled to receive fractions of a Share. The transferee shall not be bound to see to the application of the purchase money nor shall her title to the Shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.

 

66. Subject to the provisions of the Companies Acts, the Company may:


  66.1 by Special Resolution change its name, alter or add to the Memorandum with respect to any objects, powers or other matters specified therein or alter or add to these Articles;

 

  66.2 by Special Resolution reduce its issued share capital and any capital redemption reserve fund or any share premium account. In relation to such reductions, the Company may by Special Resolution determine the terms upon which the reduction is to be effected, including in the case of a reduction of part only of any class of Shares, those Shares to be affected; and

 

  66.3 by resolution of the Directors change the location of its registered office.

CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE

 

67. For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any dividend, or in order to make a determination of Members for any other proper purpose, the Board may provide, subject to the requirements of section 121 of the 1963 Act, that the Register of Members shall be closed for transfers at such times and for such periods, not exceeding in the whole thirty (30) days in each year. If the Register of Members shall be so closed for the purpose of determining Members entitled to notice of or to vote at a meeting of Members such Register of Members shall be so closed for at least five (5) days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register of Members.

 

68. In lieu of, or apart from, closing the Register of Members, the Board may fix in advance a date as the record date (a) for any such determination of Members entitled to notice of or to vote at a meeting of the Members, which record date shall not be more than ninety (90) days nor less than ten (10) days before the date of such meeting, and (b) for the purpose of determining the Members entitled to receive payment of any dividend, or in order to make a determination of Members for any other proper purpose, which record date shall not be more than ninety (90) days prior to the date of payment of such dividend or the taking of any action to which such determination of Members is relevant. The record date shall not precede the date upon which the resolution fixing the record date is adopted by the Directors.

 

69. If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of or to vote at a meeting of Members or Members entitled to receive payment of a dividend, the date immediately preceding the date on which notice of the meeting is deemed given under these Articles or the date on which the resolution of the Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in these Articles, such determination shall apply to any adjournment thereof; provided, however, that the Directors may fix a new record date of the adjourned meeting, if they think fit.

GENERAL MEETINGS

 

70. The Board shall convene and the Company shall hold annual general meetings in accordance with the requirements of the Companies Acts.

 

71. The Board may, whenever it thinks fit, and shall, on the requisition in writing of Members holding such number of Shares as is prescribed by, and made in accordance with, section 132 of the 1963 Act, convene a general meeting in the manner required by the Companies Acts. All general meetings other than annual general meetings shall be called extraordinary general meetings.


72. The Company shall in each year hold a general meeting as its annual general meeting in addition to any other meeting in that year, and shall specify the meeting as such in the notices calling it. Not more than fifteen (15) months shall elapse between the date of one annual general meeting of the Company and that of the next. Subject to section 140 of the 1963 Act, all general meetings may be held outside of Ireland.

 

73. Each general meeting shall be held at such time and place as specified in the notice of meeting.

 

74. The Board may, in its absolute discretion, authorise the Secretary to postpone any general meeting called in accordance with the provisions of these Articles (other than a meeting requisitioned under Article 71 of these Articles or the postponement of which would be contrary to the Companies Acts, law or a court order pursuant to the Companies Acts) if the Board considers that, for any reason, it is impractical or unreasonable to hold the general meeting, provided that notice of postponement is given to each Member before the time for such meeting. Fresh notice of the date, time and place for the postponed meeting shall be given to each Member in accordance with the provisions of these Articles.

NOTICE OF GENERAL MEETINGS

 

75. Subject to the provisions of the Companies Acts allowing a general meeting to be called by shorter notice, an annual general meeting, and an extraordinary general meeting called for the passing of a Special Resolution, shall be called by at least twenty-one (21) clear days’ notice and all other extraordinary general meetings shall be called by at least fourteen (14) clear days’ notice. Such notice shall state the date, time, place of the meeting and, in the case of an extraordinary general meeting, the general nature of the business to be considered. Every notice shall be exclusive of the day on which it is given or deemed to be given and of the day for which it is given and shall specify such other details as are required by applicable law or the relevant code, rules and regulations applicable to the listing of the Shares on the Exchange.

 

76. A general meeting of the Company shall, whether or not the notice specified in this Article has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if applicable law so permits and it is so agreed by the Auditors and by all the Members entitled to attend and vote thereat or their proxies.

 

77. The notice convening an annual general meeting shall specify the meeting as such, and the notice convening a meeting to pass a Special Resolution shall specify the intention to propose the resolution as a Special Resolution. Notice of every general meeting shall be given in any manner permitted by these Articles to all Members other than such as, under the provisions hereof or the terms of issue of the Shares they hold, are not entitled to receive such notice from the Company.

 

78. There shall appear with reasonable prominence in every notice of general meetings of the Company a statement that a Member entitled to attend and vote is entitled to appoint one or more proxies to attend and vote instead of her and that any proxy need not be a Member of the Company.

 

79. The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a meeting by any person entitled to receive notice shall not invalidate the proceedings of that meeting.

 

80.

In cases where instruments of proxy are sent out with notices, the accidental omission to send such instrument of proxy to, or the non-receipt of such instrument of proxy by, any person entitled to receive notice shall not invalidate any resolution passed or any proceeding at any


  such meeting. A Member present, either in person or by proxy, at any general meeting of the Company or of the holders of any class of Shares in the Company, will be deemed to have received notice of that meeting and, where required, of the purpose for which it was called.

PROCEEDINGS AT GENERAL MEETINGS

 

81. All business shall be deemed special that is transacted at an extraordinary general meeting, and also all that is transacted at an annual general meeting, with the exception of declaring a dividend, the consideration of the accounts, balance sheets and the reports of the Directors and Auditors, the election of Directors, the re-appointment of the retiring Auditors and the fixing of the remuneration of the Auditors.

 

82. No business shall be transacted at any general meeting unless a quorum is present. One or more Members present in person or by proxy holding not less than one-half of the issued and outstanding Shares of the Company entitled to vote at the meeting in question shall be a quorum.

 

83. If within one hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of Members, shall be dissolved and in any other case it shall stand adjourned to the same day in the next week at the same time and place or to such other time or such other place as the Board may determine and if at the adjourned meeting a quorum is not present within one hour from the time appointed for the meeting the Members present shall be a quorum.

 

84. If the Board wishes to make this facility available to Members for a specific or all general meetings of the Company, a Member may participate in any general meeting of the Company, by means of a telephone, video, electronic or similar communication equipment by way of which all persons participating in such meeting can communicate with each other simultaneously and instantaneously and such participation shall be deemed to constitute presence in person at the meeting.

 

85. Each Director and the Auditors shall be entitled to attend and speak at any general meeting of the Company.

 

86. The Chairman, if any, of the Board, and, if the Chairman is not present, such officer or other person as the Board shall designate, shall preside as chairman at every general meeting of the Company.

 

87. The Chairman may, with the consent of any general meeting duly constituted hereunder, and shall if so directed by the meeting, adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished, or which might have been transacted, at the meeting from which the adjournment took place. When a general meeting is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting; save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned general meeting.

 

88.

 

  88.1 Subject to the Companies Acts, a resolution may only be put to a vote at a general meeting of the Company or of any class of Members if:

 

  (a) it is proposed by or at the direction of the Board; or

 

  (b) it is proposed at the direction of the Court; or


  (c) it is proposed on the requisition in writing of such number of Members as is prescribed by, and is made in accordance with, section 132 of the 1963 Act;

 

  (d) it is proposed pursuant to, and in accordance with the procedures and requirements of, Articles 144 or 145; or

 

  (e) the Chairman of the meeting in her absolute discretion decides that the resolution may properly be regarded as within the scope of the meeting.

 

  88.2 No amendment may be made to a resolution, at or before the time when it is put to a vote, unless the Chairman of the meeting in her absolute discretion decides that the amendment or the amended resolution may properly be put to a vote at that meeting.

 

  88.3 If the Chairman of the meeting rules a resolution or an amendment to a resolution admissible or out of order (as the case may be), the proceedings of the meeting or on the resolution in question shall not be invalidated by any error in her ruling. Any ruling by the Chairman of the meeting in relation to a resolution or an amendment to a resolution shall be final and conclusive.

 

89. Except where a greater majority is required by the Companies Acts or these Articles or any applicable law or regulation to which the Company is subject, any question proposed for a decision of the Members at any general meeting of the Company or a decision of any class of Members at a separate meeting of any class of Shares shall be decided by an Ordinary Resolution.

 

90. At any general meeting a resolution put to the vote of the meeting shall be decided on a poll. The Board or the Chairman may determine the manner in which the poll is to be taken and the manner in which the votes are to be counted.

 

91. A poll demanded on the election of the Chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time, not being more than ten (10) days from the date of the meeting or adjourned meeting at which the vote was taken, as the Chairman of the meeting directs, and any business other than that on which a poll has been demanded may be proceeded with pending the taking of the poll.

 

92. No notice need be given of a poll not taken immediately. The result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. On a poll a Member entitled to more than one (1) vote need not use all her votes or cast all the votes she uses in the same way.

 

93. If authorised by the Board, any vote taken by written ballot may be satisfied by a ballot submitted by electronic or telephonic transmission, provided that any such electronic or telephonic submission must either set forth or be submitted with information from which it can be determined that the electronic submission has been authorised by the Member or proxy.

 

94. The Board may, and at any general meeting, the chairman of such meeting may make such arrangement and impose any requirement or restriction it or she considers appropriate to ensure the security of a general meeting including, without limitation, requirements for evidence of identity to be produced by those attending the meeting, the searching of personal property and the restriction of items that may be taken into the meeting place. The Board and, at any general meeting, the chairman of such meeting are entitled to refuse entry to a person who refuses to comply with such arrangements, requirements or restrictions.


95. Subject to section 141 of the 1963 Act, a resolution in writing signed by all of the Members for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by their duly authorised representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the Company duly convened and held, and may consist of several documents in like form each signed by one or more persons, and if described as a special resolution shall be deemed to be a special resolution within the meaning of the 1963 Act. Any such resolution shall be served on the Company.

VOTES OF MEMBERS

 

96. Subject to any rights or restrictions for the time being attached to any class or classes of Shares, every Member of record present in person or by proxy shall have one vote for each Share registered in her name in the Register of Members.

 

97. In the case of joint holders of record the vote of the senior holder who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members.

 

98. A Member of unsound mind, or in respect of whom an order has been made by any court, having jurisdiction in lunacy, may vote by her committee, receiver, curator bonis, or other person in the nature of a committee, receiver or curator bonis appointed by that court, and any such committee, receiver, curator bonis or other persons may vote by proxy.

 

99. No Member shall be entitled to vote at any general meeting unless she is registered as a Member on the record date for such meeting.

 

100. No objection shall be raised to the qualification of any voter except at the general meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at such general meeting shall be valid for all purposes. Any such objection made in due time shall be referred to the Chairman of the general meeting whose decision shall be final and conclusive.

 

101. Votes may be given either personally or by proxy. A Member may appoint more than one proxy or the same proxy under one or more instruments to attend and vote at a meeting and may appoint one proxy to vote both in favour of and against the same resolution in such proportion as specified in the instrument appointing the proxy.

PROXIES AND CORPORATE REPRESENTATIVES

 

102.

 

  102.1 Every Member entitled to attend and vote at a general meeting may appoint a proxy to attend, speak and vote on her behalf and may appoint more than one proxy to attend, speak and vote at the same meeting. The appointment of a proxy or corporate representative shall be in such form and may be accepted by the Company at such place and at such time as the Board or the Secretary shall from time to time determine, subject to applicable requirements of the United States Securities and Exchange Commission and the Exchange on which the Shares are listed. No such instrument appointing a proxy or corporate representative shall be voted or acted upon after two (2) years from its date.

 

  102.2

Without limiting the foregoing, the Directors may from time to time permit appointments of a proxy to be made by means of an electronic or internet communication or facility and may in a similar manner permit supplements to, or


  amendments or revocations of, any such electronic or internet communication or facility to be made. The Directors may in addition prescribe the method of determining the time at which any such electronic or internet communication or facility is to be treated as received by the Company. The Directors may treat any such electronic or internet communication or facility which purports to be or is expressed to be sent on behalf of a Member as sufficient evidence of the authority of the person sending that instruction to send it on behalf of that Member.

 

103. Any body corporate which is a Member of the Company may authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members of the Company and the person so authorised shall be entitled to exercise the same powers on behalf of the body corporate which she represents as that body corporate could exercise if it were an individual Member of the Company. The Company may require evidence from the body corporate of the due authorisation of such person to act as the representative of the relevant body corporate.

 

104. An appointment of proxy relating to more than one meeting (including any adjournment thereof) having once been received by the Company for the purposes of any meeting shall not require to be delivered, deposited or received again by the Company for the purposes of any subsequent meeting to which it relates.

 

105. Receipt by the Company of an appointment of proxy in respect of a meeting shall not preclude a Member from attending and voting at the meeting or at any adjournment thereof which attendance and voting will automatically cancel any proxy previously submitted.

 

106. An appointment proxy shall be valid, unless the contrary is stated therein, as well for any adjournment of the meeting as for the meeting to which it relates.

 

107.

 

  107.1 A vote given in accordance with the terms of an appointment of proxy or a resolution authorising a representative to act on behalf of a body corporate shall be valid notwithstanding the death or insanity of the principal, or the revocation of the appointment of proxy or of the authority under which the proxy was appointed or of the resolution authorising the representative to act or transfer of the Share in respect of which the proxy was appointed or the authorisation of the representative to act was given, provided that no intimation in writing (whether in electronic form or otherwise) of such death, insanity, revocation or transfer shall have been received by the Company at the Office, at least one hour before the commencement of the meeting or adjourned meeting at which the appointment of proxy is used or at which the representative acts; PROVIDED, HOWEVER, that where such intimation is given in electronic form it shall have been received by the Company at least 24 hours (or such lesser time as the Directors may specify) before the commencement of the meeting.

 

  107.2 The Directors may send, at the expense of the Company, by post, electronic mail or otherwise, to the Members forms for the appointment of a proxy (with or without stamped envelopes for their return) for use at any general meeting or at any class meeting, either in blank or nominating any one or more of the Directors or any other persons in the alternative.

DIRECTORS

 

108. The Board may determine the size of the Board from time to time at its absolute discretion.


109. The remuneration to be paid to the Directors shall be such remuneration as the Directors shall determine. Such remuneration shall be deemed to accrue from day to day. The Directors shall also be entitled to be paid their travelling, hotel and other expenses properly incurred by them in going to, attending and returning from meetings of the Directors, or any committee of the Directors, or general meetings of the Company, or otherwise in connection with the business of the Company, or to receive a fixed allowance in respect thereof as may be determined by the Board from time to time, or a combination partly of one such method and partly the other.

 

110. The Board may approve additional remuneration to any Director undertaking any special work or services for, or undertaking any special mission on behalf of, the Company other than her ordinary routine work as a Director. Any fees paid to a Director who is also counsel or solicitor to the Company, or otherwise serves it in a professional capacity shall be in addition to her remuneration as a Director.

DIRECTORS’ AND OFFICERS’ INTERESTS

 

111. A Director or an officer of the Company who is in any way, whether directly or indirectly, interested in a contract, transaction or arrangement or proposed contract, transaction or arrangement with the Company shall, in accordance with section 194 of the 1963 Act, declare the nature of her interest at the first opportunity either (a) at a meeting of the Board at which the question of entering into the contract, transaction or arrangement is first taken into consideration, if the Director or officer of the Company knows this interest then exists, or in any other case, at the first meeting of the Board after learning that she is or has become so interested or (b) by providing a general notice to the Directors declaring that she is a director or an officer of, or has an interest in, a person and is to be regarded as interested in any transaction or arrangement made with that person, and after giving such general notice it shall not be necessary to give special notice relating to any particular transaction.

 

112. A Director may hold any other office or place of profit under the Company (other than the office of its Auditors) in conjunction with her office of Director for such period and on such terms as to remuneration and otherwise as the Board may determine.

 

113. A Director may act by himself or her firm in a professional capacity for the Company (other than as its Auditors) and she or her firm shall be entitled to remuneration for professional services as if she were not a Director.

 

114. A Director may be or become a director, managing director, joint managing director, deputy managing director, executive director, manager or other officer or Member of any other company or otherwise interested in any company promoted by the Company or in which the Company may be interested as shareholder or otherwise, and no such Director shall be accountable to the Company for any remuneration or other benefits received by her as a director, managing director, joint managing director, deputy managing director, executive director, manager or other officer or Member of such other company; provided that she has declared the nature of her position with, or interest in, such company to the Board in accordance with Article 110.

 

115. No person shall be disqualified from the office of Director or from being an officer of the Company or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by or on behalf of the Company in which any Director or officer of the Company shall be in any way interested be or be liable to be avoided, nor shall any Director or officer of the Company so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or transaction by reason of such Director or officer of the Company holding office or of the fiduciary relation thereby established; provided that:


  115.1 she has declared the nature of her interest in such contract or transaction to the Board in accordance with Article 110; and

 

  115.2 the contract or transaction is approved by a majority of the disinterested Directors, notwithstanding the fact that the disinterested Directors may represent less than a quorum.

 

116. A Director may be counted in determining the presence of a quorum at a meeting of the Board which authorises or approves the contract, transaction or arrangement in which she is interested and she shall be at liberty to vote in respect of any contract, transaction or arrangement in which she is interested, provided that the nature of the interest of any Director in any such contract or transaction shall be disclosed by her in accordance with Article 110, at or prior to its consideration and any vote thereon.

 

117. For the purposes of Article 110:-

 

  117.1 a general notice given to the Directors that a Director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the Director has an interest in any such transaction of the nature and extent so specified;

 

  117.2 an interest of which a Director has no knowledge and of which it is unreasonable to expect her to have knowledge shall not be treated as an interest of her; and

 

  117.3 a copy of every declaration made and notice given under Article 110 shall be entered within three (3) days after the making or giving thereof in a book kept for this purpose. Such book shall be open for inspection without charge by any Director, Secretary, the Auditors or Member of the Company at the registered office and shall be produced at every general meeting of the Company and at any meeting of the Directors if any Director so requests in sufficient time to enable the book to be available at the meeting.

POWERS AND DUTIES OF DIRECTORS

 

118. The business of the Company shall be managed by the Directors, who may pay all expenses incurred in promoting and registering the Company and may exercise all such powers of the Company as are not, by the Companies Acts or by these Articles, required to be exercised by the Company in general meeting, subject, nevertheless, to any of these Articles and to the provisions of the Companies Acts. No resolution made by the Company in general meeting shall invalidate any prior act of the Directors that would have been valid if that resolution had not been made.

 

119. The Board shall have the power to appoint and remove executives in such terms as the Board sees fit and to give such titles and responsibilities to those executives as it sees fit.

 

120. The Company may exercise the powers conferred by Section 41 of the 1963 Act with regard to having an official seal for use abroad and such powers shall be vested in the Directors.

 

121. Subject as otherwise provided with these Articles, the Directors may exercise the voting powers conferred by shares of any other company held or owned by the Company in such manner in all respects as they think fit and in particular they may exercise their voting powers in favour of any resolution appointing the Directors or any of them as directors or officers of such other company or providing for the payment of remuneration or pensions to the directors or officers of such other company.


122. All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for money paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, by such person or persons and in such manner as the Directors shall from time to time by resolution determine.

 

123. The Directors may from time to time authorise such person or persons as they see fit to perform all acts, including without prejudice to the foregoing, to effect a transfer of any shares, bonds, or other evidences of indebtedness or obligations, subscription rights, warrants, and other securities in another body corporate in which the Company holds an interest and to issue the necessary powers of attorney for the same; and each such person is authorised on behalf of the Company to vote such securities, to appoint proxies with respect thereto, and to execute consents, waivers and releases with respect thereto, or to cause any such action to be taken.

 

124. The Board may exercise all powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds or such other securities whether outright or as security for any debt, liability or obligation of the Company or of any third party.

 

125. The Directors may procure the establishment and maintenance of or participate in, or contribute to any non-contributory or contributory pension or superannuation fund, scheme or arrangement or life assurance scheme or arrangement for the benefit of, and pay, provide for or procure the grant of donations, gratuities, pensions, allowances, benefits or emoluments to any persons (including Directors or other officers) who are or shall have been at any time in the employment or service of the Company or of any company which is or was a subsidiary of the Company or of the predecessor in business of the Company or any such subsidiary or holding company and the wives, widows, families, relatives or dependants of any such persons. The Directors may also procure the establishment and subsidy of or subscription to and support of any institutions, associations, clubs, funds or trusts calculated to be for the benefit of any such persons as aforesaid or otherwise to advance the interests and well being of the Company or of any such other company as aforesaid or its Members, and payments for or towards the issuance of any such persons as aforesaid and subscriptions or guarantees of money for charitable or benevolent objects or for any exhibition or for any public, general or useful object. Provided that any Director shall be entitled to retain any benefit received by her under this Article, subject only, where the Companies Acts require, to disclosure to the Members and the approval of the Company in general meeting.

 

126. The Board may from time to time provide for the management of the affairs of the Company in such manner as it shall think fit and the specific delegation provisions contained in the Articles shall not limit the general powers conferred by these Articles.

MINUTES

 

127. The Board shall cause minutes to be made in books kept for the purpose of all appointments of officers made by the Board, all resolutions and proceedings at meetings of the Company or the holders of any class of Shares, of the Directors and of committees of Directors, including the names of the Directors present at each meeting.

DELEGATION OF THE BOARD’S POWERS

 

128. The Board may delegate any of its powers (with power to sub-delegate) to any committee consisting of one or more Directors. The Board may also delegate to any Director such of its powers as it considers desirable to be exercised by her. Any such delegation may be made subject to any conditions the Board may impose, and either collaterally with or to the exclusion of its own powers and may be revoked or altered. Subject to any such conditions, the proceedings of a committee of the Board shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying.


129. The Board may by power of attorney or otherwise appoint any person to be the agent of the Company on such conditions as the Board may determine, provided that the delegation is not to the exclusion of its own powers and may be revoked by the Board at any time.

 

130. The Board may by power of attorney or otherwise appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Board, to be the attorney or authorised signatory of the Company for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board under these Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or other appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories as the Board may think fit and may also authorise any such attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in her.

EXECUTIVE OFFICERS

 

131. The Company shall have a chairman, who shall be a Director and shall be elected by the Board. In addition to the chairman, the Directors and the Secretary, the Company may have such officers as the Board may from time to time determine.

PROCEEDINGS OF DIRECTORS

 

132. Except as otherwise provided by these Articles, the Directors shall meet together for the despatch of business, convening, adjourning and otherwise regulating their meetings and procedures as they think fit. Questions arising at any meeting shall be decided by a majority of votes of the Directors present at a meeting at which there is a quorum. Each Director shall have one vote.

 

133. Regular meetings of the Board may be held at such times and places as may be provided for in resolutions adopted by the Board. No additional notice of a regularly scheduled meeting of the Board shall be required.

 

134. A Director may, and the Secretary on the requisition of a Director shall, at any time summon a meeting of the Directors by at least forty-eight (48) hours’ notice in writing to every Director which notice shall set forth the general nature of the business to be considered unless notice is waived by all the Directors either at, before or after the meeting is held and provided further notice is given in person, by telephone, cable, telex, telecopy or email the same shall be deemed to have been given on the day it is delivered to the Directors or transmitting organisation as the case may be. The accidental omission to give notice of a meeting of the Directors to, or the non-receipt of notice of a meeting by any person entitled to receive notice shall not invalidate the proceedings of that meeting.

 

135. The quorum necessary for the transaction of the business of the Board may be fixed by the Board and unless so fixed shall be a majority of the Directors in office.

 

136. The continuing Directors may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum of Directors, the continuing Directors or Director may act for the purpose of increasing the number of Directors to that number, or of summoning a general meeting of the Company, but for no other purpose.

 

137. The Directors may elect a Chairman of their Board and determine the period for which she is to hold office; but if no such Chairman is elected, or if at any meeting the Chairman is not present within five (5) minutes after the time appointed for holding the same, the Directors present may choose one of their number to be a Chairman of the meeting.


138. All acts done by any meeting of the Directors or of a committee of Directors shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any Director, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and qualified to be a Director.

 

139. Members of the Board or of any committee thereof may participate in a meeting of the Board or of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting. Unless otherwise determined by the Directors the meeting shall be deemed to be held at the place where the Chairman is at the start of the meeting.

 

140. A resolution in writing (in one or more counterparts), signed by all the Directors for the time being or all the members of a committee of Directors shall be as valid and effectual as if it had been passed at a meeting of the Directors or committee as the case may be duly convened and held.

RESIGNATION AND DISQUALIFICATION OF DIRECTORS

 

141. The office of a Director shall be vacated:

 

  141.1 if she resigns her office, on the date on which notice of her resignation is delivered to the Registered Office or tendered at a meeting of the Board or on such later date as may be specified in such notice; or

 

  141.2 on her being prohibited by law from being a Director; or

 

  141.3 on her ceasing to be a Director by virtue of any provision of the Companies Acts.

 

142. The Company may, by Ordinary Resolution, of which extended notice has been given in accordance with section 142 of the 1963 Act, remove any Director before the expiration of her period of office notwithstanding anything in these Articles or in any agreement between the Company and such Director. Such removal shall be without prejudice to any claim such Director may have for damages for breach of any contract of service between her and the Company.

APPOINTMENT OF DIRECTORS

 

143.

 

  143.1 Each Director must retire not later than the third annual general meeting following his last appointment or re-appointment in general meeting.

 

  143.2 In any event, at each annual general meeting of the Company a minimum number of Directors are subject to retirement by rotation and that number includes any Director retiring under Article 142.1 but does not include any Director who wishes to retire and who does not wish to offer himself for re-appointment. The minimum number is one-third of the Directors for the time being subject to retirement by rotation (calculated as aforesaid and subject also to the provisions of Article 148) or if the said number of Directors is not divisible by three, the number which is nearest to and less than one-third. If there is only one Director who is subject to retirement by rotation then he shall retire.


  143.3 The Directors, (including any Directors holding executive office pursuant to these Articles) to retire by rotation shall be those who have been longest in office since their last appointment or reappointment but as between persons who became or were last reappointed Directors on the same day those to retire shall be determined (unless they otherwise agree among themselves) by lot; and

 

  143.4 A Director who retires at an annual general meeting may be reappointed, if willing to act. If he is not reappointed (or deemed to be reappointed pursuant to these Articles) he shall retain office until the meeting appoints someone in his place or, if it does not do so, until the end of the meeting.

DEEMED REAPPOINTMENT

 

144. If the Company, at the meeting at which a Director retires by rotation, does not fill the vacancy, the retiring Director, if willing to act shall be deemed to have been re-appointed, unless at the meeting it is resolved not to fill the vacancy or a resolution for the reappointment of the Director is put to the meeting and lost.

NOMINATIONS OF DIRECTORS

 

145. Nominations of persons for election to the Board at a general meeting may only be made (a) pursuant to the Company’s notice of meeting pursuant to Article 70 at the recommendation of the Board, (b) by or at the direction of the Board or any authorised committee thereof or (c) by any Member who (i) complies with the notice procedures set forth in Articles 145 or 146, as applicable, (ii) was a Member at the time such notice is delivered to the Secretary and on the record date for the determination of Members entitled to vote at such general meeting and (iii) is present at the relevant general meeting, either in person or by proxy, to present her nomination, provided, however, that Members shall only be entitled to nominate persons for election to the Board at annual general meetings or at general meetings called specifically for the purpose of electing Directors.

 

146.

For nominations of persons for election to the Board to be properly brought before an annual general meeting by a Member, such annual general meeting must have been called for the purpose of, among other things, electing Directors and such Member must have given timely notice thereof in writing to the Secretary. To be timely, a Member’s notice shall be delivered to the Secretary at the registered office of the Company, or such other Address as the Secretary may designate, not less than ninety (90) days nor more than one hundred and fifty (150) days prior to the first anniversary of the date the Company’s proxy statement was first released to Members in connection with the prior year’s annual general meeting; provided, however, that in the event the date of the annual general meeting is changed by more than thirty (30) days from the first anniversary date of the prior year’s annual general meeting, notice by the Member to be timely must be so delivered not earlier than the one hundred and fiftieth (150 th ) day prior to such annual general meeting and not later than the later of the ninetieth (90 th ) day prior to such annual general meeting or the tenth (10 th ) day following the day on which public announcement of the date of such meeting is first made. Such Member’s notice shall set forth (a) as to each person whom the Member proposes to nominate for election or re-election as a Director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934 of the United States of America, as amended (the “ Exchange Act ”), or any successor provisions thereto, including such person’s written consent to being named in the proxy statement as a nominee and to serving as a Director of the Company if elected and (b) as to the Member giving the notice (i) the name and Address of such Member, as they appear on the Register of Members, (ii) the class and number of Shares that are owned beneficially


  and/or of record by such Member, (iii) a representation that the Member is a registered holder of Shares entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such nomination and (iv) a statement as to whether the Member intends or is part of a group that intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s outstanding share capital required to approve or elect the nominee and/or (xi) otherwise to solicit proxies from Members in support of such nomination. The Board may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a Director of the Company, including such evidence satisfactory to the Board that such nominee has no interests that would limit such nominee’s ability to fulfil her duties as a Director.

 

147.

For nominations of persons for election to the Board to be properly brought before a general meeting called for the purpose of the election of Directors, other than an annual general meeting by a Member, such Member must have given timely notice thereof in writing to the Secretary. To be timely, a Member’s notice shall be delivered to the Secretary at the registered office of the Company or such other Address as the Secretary may designate, not earlier than the one hundred and fiftieth (150 th ) day prior to such general meeting and not later of the ninetieth (90 th )day prior to such general meeting or the tenth (10 th ) day following the day on which public announcement is first made of the date of the general meeting and of the nominees proposed by the Board to be elected at such meeting. Such Member’s notice shall set forth the same information as is required by provisions (a) and (b) of Article 145.

 

148. Subject to the Companies Acts unless otherwise provided by the terms any agreement among Members or other agreement approved by the Board, only persons who are nominated in accordance with the procedures set forth in Articles 145 and 146 shall be eligible to serve as Directors of the Company. If the Chairman of a general meeting determines that a proposed nomination was not made in compliance with Articles 145 and 146, she shall declare to the meeting that nomination is defective and such defective nomination shall be disregarded. Notwithstanding the foregoing provisions of these Articles, if the Member (or a qualified representative of the Member) does not appear at the general meeting to present her nomination, such nomination shall be disregarded.

APPOINTMENT OF ADDITIONAL DIRECTORS

INCLUDING ALTERNATE DIRECTORS

149.

 

  149.1 Subject as provided in these Articles, the Company by ordinary resolution may appoint a person to be a Director either to fill a vacancy or as an additional Director and may also determine the rotation in which any additional Directors are to retire.

 

  149.2 Subject as provided in these Articles, the Directors may appoint a person who is willing to act to be a Director, either to fill a vacancy or as an additional Director, provided that the appointment does not cause the number of Directors to exceed any number fixed by or in accordance with these Articles as the maximum number of Directors. A Director so appointed shall hold office only until the next following annual general meeting and shall not be taken into account in determining the Directors who are to retire by rotation at the meeting. If not re-appointed at such annual general meeting, such Director shall vacate office at the conclusion thereof.

149.3

 


  (i) Any Director may appoint by writing under his hand any person (including another Director) to be his alternate, provided always that no such appointment of a person other than a Director as an alternate will be effective unless and until such appointment is approved by resolution of the Directors. An alternate will be entitled, subject to his giving to the Company an address to receive notices of all meetings of the Directors and of all meetings of Committees of which his appointer is a member, to receive notice of and attend and vote at any such meeting at which the Director appointing him is not personally present and, in the absence of his appointer, to perform all the functions, and exercise all the powers, rights, duties and authorities, of his appointer as a Director (other than the right to appoint an alternate hereunder), and shall be entitled to contract and to be interested in and to benefit from contracts and arrangements and to be repaid expenses and be indemnified upon and subject to the provisions of these Articles to the same extent as if he were a director.

 

  (ii) A person may act as alternate for more than one Director, and while he is so acting will be entitled to a separate vote for each Director he is representing and, if he is himself a Director, his vote or votes as an alternate will be in addition to his own vote. An alternate will be counted for the purpose of reckoning whether a quorum is present at any meeting attended by him at which he is entitled to vote, but where he is himself a Director or is the alternate of more than one Director he will only be counted once for such purpose. Save as otherwise provided in these Articles, an alternate will be deemed for all purposes to be a Director and will alone be responsible for his own acts and defaults and he will not be deemed to be the agent of his appointer. The remuneration of an alternate will be payable out of the remuneration paid to his appointer and will consist of such portion of the last-mentioned remuneration as may be agreed between the alternate and his appointer.

 

  (iii) A Director may revoke at any time the appointment of any alternate appointed by him. If a Director dies or ceases to hold the office of Director the appointment of his alternate will thereupon ipso facto terminate, but if a Director retires but is re-appointed or deemed to have been re-appointed at the meeting at which he retires, any appointment of an alternate made by him which was in force immediately prior to his retirement will continue after his re-appointment.

 

  (iv) Any appointment or revocation of any alternate by a Director shall be effected by notice in writing given under his hand to the Secretary or deposited at the Registered Office, or in any other manner approved by the Directors.

 

150. The Company may by Ordinary Resolution appoint any person to be a Director.

SECRETARY

 

151. The Secretary shall be appointed by the Board at such remuneration (if any) and on such terms as it may think fit and any Secretary so appointed may be removed by the Board.

 

152. The duties of the Secretary shall be those prescribed by the Companies Acts, together with such other duties as shall from time to time be prescribed by the Board, and in any case, shall include the making and keeping of records of the votes, doings and proceedings of all meetings of the Members and the Board of the Company, and committees, and the authentication of records of the Company.


153. A provision of the Companies Acts or these Articles requiring or authorising a thing to be done by or to a Director and the Secretary shall not be satisfied by its being done by or to the same person acting both as Director and as, or in the place of, the Secretary.

SEAL

 

154. The Company may, if the Board so determines, have a Seal (including any official seals kept pursuant to the Companies Acts) which shall only be used by the authority of the Board or of a committee of the Board authorised by the Board in that regard and every instrument to which the Seal has been affixed shall be signed by any person who shall be either a Director or the Secretary or Assistant Secretary or some other person authorised by the Board, either generally or specifically, for the purpose.

 

155. The Company may have for use in any place or places outside Ireland, a duplicate Seal or Seals each of which shall be a duplicate of the Seal of the Company except, in the case of a Seal for use in sealing documents creating or evidencing securities issued by the Company, for the addition on its face of the word “Securities” and if the Board so determines, with the addition on its face of the name of every place where it is to be used.

DIVIDENDS, DISTRIBUTIONS AND RESERVES

 

156. The Company in general meeting may declare dividends, but no dividends shall exceed the amount recommended by the Directors.

 

157. Subject to the Companies Acts, the Board may from time to time declare dividends (including interim dividends) and distributions on Shares of the Company outstanding and authorise payment of the same out of the funds of the Company lawfully available therefor.

 

158. The Board may, before declaring any dividends or distributions, set aside such sums as they think proper as a reserve or reserves which shall at the discretion of the Directors, be applicable for any purpose of the Company and pending such application may, at the like discretion, be employed in the business of the Company. The Directors may also, without placing the same to reserve, carry forward any profits which they may think it prudent not to divide.

 

159. No dividend, interim dividend or distribution shall be paid otherwise than in accordance with the provisions of Part IV of the 1983 Act.

 

160. Subject to the rights of persons, if any, entitled to Shares with special rights as to dividends or distributions, if dividends or distributions are to be declared on a class of Shares they shall be declared and paid according to the amounts paid or credited as paid on the Shares of such class outstanding on the record date for such dividend or distribution as determined in accordance with these Articles.

 

161. The Directors may deduct from any dividend payable to any Member all sums of money (if any) immediately payable by her to the Company in relation to the Shares of the Company.

 

162.

The Board or any general meeting declaring a dividend (upon the recommendation of the Board), may direct that any dividend or distribution be paid wholly or partly by the distribution of specific assets and in particular of paid up Shares, debentures, or debenture stock of any other company or in any one or more of such ways and where any difficulty arises in regard to such distribution, the Board may settle the same as they think expedient and in particular may issue fractional certificates and fix the value for distribution of such


  specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the footing of the value so fixed in order to adjust the rights of all Members and may vest any such specific assets in trustees as may seem expedient to the Board.

 

163. Any dividend, distribution, interest or other monies payable in cash in respect of Shares may be paid by cheque or warrant sent through the post, or sent by any electronic or other means of payment, directed to the registered Address of the holder or, in the case of joint holders, to the holder who is first named on the Register of Members or to such person and to such Address as such holder or joint holders may in writing direct. Every such cheque or warrant, electronic or other payment shall be made payable to the order of the person to whom it is sent and payment of the cheque or warrant shall be a good discharge to the Company. Any one of two or more joint holders may give effectual receipts for any dividends, bonuses, or other monies payable in respect of the Share held by them as joint holders. Any such dividend or other distribution may also be paid by any other method (including payment in a currency other than US$, electronic funds transfer, direct debit, bank transfer or by means of a relevant system) which the Directors consider appropriate and any Member who elects for such method of payment shall be deemed to have accepted all of the risks inherent therein. The debiting of the Company’s account in respect of the relevant amount shall be evidence of good discharge of the Company’s obligations in respect of any payment made by any such methods.

 

164. No dividend or distribution shall bear interest against the Company.

 

165. If the Directors so resolve, any dividend which has remained unclaimed for twelve years from the date of its declaration shall be forfeited and cease to remain owing by the Company. The payment by the Directors of any unclaimed dividend or other monies payable in respect of a Share into a separate account shall not constitute the Company a trustee in respect thereof.

CAPITALISATION

 

166. Without prejudice to any powers conferred on the Directors as aforesaid, and subject to the Directors’ authority to issue and allot Shares under Articles 8 and 9, the Directors may:

 

  166.1 resolve to capitalise an amount standing to the credit of reserves (including a share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution;

 

  166.2 appropriate the sum resolved to be capitalised to the Members in proportion to the nominal amount of Shares held by them respectively and apply that sum on their behalf in or towards paying up in full unissued Shares or debentures of a nominal amount equal to that sum, and allot the Shares or debentures, credited as fully paid, to the Members (or as the Board may direct) in those proportions, or partly in one way and partly in the other, but the share premium account, the capital redemption reserve and profits that are not available for distribution may, for the purposes of this Article 166.2, only be applied in paying up unissued Shares to be allotted to Members credited as fully paid;

 

  166.3 make any arrangements it thinks fit to resolve a difficulty arising in the distribution of a capitalised reserve and in particular, without limitation, where Shares or debentures become distributable in fractions the Board may deal with the fractions as it thinks fit;

 

  166.4 authorise a person to enter (on behalf of all the Members concerned) into an agreement with the Company providing for the allotment to the Members respectively, credited as fully paid, of Shares or debentures to which they may be entitled on the capitalisation and any such agreement made under this authority being effective and binding on all those Members; and


  166.5 generally do all acts and things required to give effect to the resolution.

ACCOUNTS

 

167. The Directors shall cause to be kept proper books of account, whether in the form of documents, electronic form or otherwise, that:

 

  167.1 correctly record and explain the transactions of the Company;

 

  167.2 will at any time enable the financial position of the Company to be determined with reasonable accuracy;

 

  167.3 will enable the Directors to ensure that any balance sheet, profit and loss account or income and expenditure account of the Company complies with the requirements of the Companies Acts;

 

  167.4 will record all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company; and

 

  167.5 will enable the accounts of the Company to be readily and properly audited.

 

168. Books of account shall be kept on a continuous and consistent basis and entries therein shall be made in a timely manner and be consistent from year to year. The Company may send by post, electronic mail or any other means of electronic communication a summary financial statement to its Members or persons nominated by any Member. The Company may meet, but shall be under no obligation to meet, any request from any of its Members to be sent additional copies of its full report and accounts or summary financial statement or other communications with its Members.

 

169. The books of account shall be kept at the registered office of the Company or, subject to the provisions of the Companies Acts, at such other place as the Directors think fit and shall be open at all reasonable times to the inspection of the Directors.

 

170. Proper books shall not be deemed to be kept as required by Articles 167 to 168, if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company’s affairs and to explain its transactions.

 

171. In accordance with the provisions of the Companies Acts, the Board may from time to time cause to be prepared and to be laid before the Company in general meeting profit and loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law.

 

172. A copy of every balance sheet (including every document required by law to be annexed thereto) which is to be laid before the annual general meeting of the Company together with a copy of the Directors’ report and Auditors’ report shall be sent by post, electronic mail or any other means of communication (electronic or otherwise), not less than twenty-one (21) clear days before the date of the annual general meeting, to every person entitled under the provisions of the Companies Acts to receive them; provided that in the case of those documents sent by electronic mail or any other means of electronic communication, such documents shall be sent with the consent of the recipient, to the Address of the recipient notified to the Company by the recipient for such purposes.


AUDIT

 

173. Auditors shall be appointed and their duties regulated in accordance with Sections 160 to 163 of the 1963 Act or any statutory amendment thereof, any other applicable law and such requirements not inconsistent with the Companies Acts as the Board may from time to time determine.

NOTICES

 

174. Any notice to be given, served, sent or delivered pursuant to these Articles shall be in writing (whether in electronic form or otherwise).

 

  174.1 A notice or document to be given, served, sent or delivered in pursuance of these Articles may be given to, served on or delivered to any Member by the Company:

 

  (a) by handing same to her authorised agent;

 

  (b) by leaving the same at her registered address;

 

  (c) by sending the same by the post in a pre-paid cover addressed to her at her registered address; or

 

  (d) by sending, with the consent of the Member to the extent required by law, the same by means of electronic mail or other means of electronic communication approved by the Directors, to the Address of the Member notified to the Company by the Member for such purpose (or if not so notified, then to the Address of the Member last known to the Company).

 

  174.2   For the purposes of these Articles and the Companies Act, a document shall be deemed to have been sent to a Member if a notice is given, served, sent or delivered to the Member and the notice specifies the website or hotlink or other electronic link at or through which the Member may obtain a copy of the relevant document.

 

  174.3   Where a notice or document is given, served or delivered pursuant to sub-paragraph 174.1(a) or 174.1(b) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the time the same was handed to the Member or her authorised agent, or left at her registered address (as the case may be).

 

  174.4   Where a notice or document is given, served or delivered pursuant to sub-paragraph 174.1(c) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of twenty-four (24) hours after the cover containing it was posted. In proving service or delivery it shall be sufficient to prove that such cover was properly addressed, stamped and posted.

 

  174.5   Where a notice or document is given, served or delivered pursuant to sub-paragraph 174.1(d) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of forty-eight (48) hours after despatch.

 

  174.6   Every legal personal representative, committee, receiver, curator bonis or other legal curator, assignee in bankruptcy, examiner or liquidator of a Member shall be bound by a notice given as aforesaid if sent to the last registered address of such Member, or, in the event of notice given or delivered pursuant to sub-paragraph 174.1(d), if sent to the address notified by the Company by the Member for such purpose notwithstanding that the Company may have notice of the death, lunacy, bankruptcy, liquidation or disability of such Member.


  174.7 Notwithstanding anything contained in this Article, the Company shall not be obliged to take account of or make any investigations as to the existence of any suspension or curtailment of postal services within or in relation to all or any part of any jurisdiction.

 

  174.8 Any requirement in these Articles for the consent of a Member in regard to the receipt by such Member of electronic mail or other means of electronic communications approved by the Directors, including the receipt of the Company’s audited accounts and the Directors’ and Auditor’s reports thereon, shall be deemed to have been satisfied where the Company has written to the Member informing her/him of its intention to use electronic communications for such purposes and the Member has not, within four (4) weeks of the issue of such notice, served an objection in writing on the Company to such proposal. Where a Member has given, or is deemed to have given, her/his consent to the receipt by such Member of electronic mail or other means of electronic communications approved by the Directors, she may revoke such consent at any time by requesting the Company to communicate with her in documented form; provided, however, that such revocation shall not take effect until five (5) days after written notice of the revocation is received by the Company.

 

  174.9 Without prejudice to the provisions of sub-paragraphs 174.1(a) and 174.1(b) of this Article, if at any time by reason of the suspension or curtailment of postal services in any territory, the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a public announcement (as defined below) and such notice shall be deemed to have been duly served on all Members entitled thereto at noon (New York time) on the day on which the said public announcement is made. In any such case the Company shall put a full copy of the notice of the general meeting on its website. A “public announcement” shall mean disclosure in a press release reported by a financial news service or in a document publicly filed by the Company with the U.S. Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

 

175. Notice may be given by the Company to the joint Members of a Share by giving the notice to the joint Member whose name stands first in the Register in respect of the Share and notice so given shall be sufficient notice to all the joint Members.

 

176.

 

  176.1 Every person who becomes entitled to a Share shall before her name is entered in the Register in respect of the Share, be bound by any notice in respect of that Share which has been duly given to a person from whom she derives her title.

 

  176.2 A notice may be given by the Company to the persons entitled to a Share in consequence of the death or bankruptcy of a Member by sending or delivering it, in any manner authorised by these Articles for the giving of notice to a Member, addressed to them at the Address, if any, supplied by them for that purpose. Until such an Address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not occurred.

 

177. The signature (whether electronic signature, an advanced electronic signature or otherwise) to any notice to be given by the Company may be written (in electronic form or otherwise) or printed.


178. A Member present, either in person or by proxy, at any meeting of the Company or the holders of any class of Shares in the Company shall be deemed to have received notice of the meeting and, where requisite, of the purposes for which it was called.

UNTRACED HOLDERS

 

179.

 

  179.1 The Company shall be entitled to sell at the best price reasonably obtainable any Share or stock of a Member or any Share or stock to which a person is entitled by transmission if and provided that:

 

  (a) for a period of twelve (12) years (not less than three (3) dividends having been declared and paid) no cheque or warrant sent by the Company through the post in a prepaid letter addressed to the Member or to the person entitled by transmission to the Share or stock at her Address on the Register or other last known Address given by the Member or the person entitled by transmission to which cheques and warrants are to be sent has been cashed and no communication has been received by the Company from the Member or the person entitled by transmission; and

 

  (b) at the expiration of the said period of twelve (12) years the Company has given notice by advertisement in a leading Dublin newspaper and a newspaper circulating in the area in which the Address referred to in paragraph (a) of this Article is located of its intention to sell such Share or stock; and

 

  (c) the Company has not during the further period of three (3) months after the date of the advertisement and prior to the exercise of the power of sale received any communication from the Member or person entitled by transmission.

 

  179.2 To give effect to any such sale the Company may appoint any person to execute as transferor an instrument of transfer of such Share or stock and such instrument of transfer shall be as effective as if it had been executed by the Member or person entitled by transmission to such Share or stock. The Company shall account to the Member or other person entitled to such Share or stock for the net proceeds of such sale by carrying all monies in respect thereof to a separate account which shall be a permanent debt of the Company and the Company shall be deemed to be a debtor and not a trustee in respect thereof for such Member or other person. Monies carried to such separate account may either be employed in the business of the Company or invested in such investments (other than Shares of the Company or its holding company if any) as the Directors may from time to time think fit.

DESTRUCTION OF DOCUMENTS

 

180. The Company may destroy:

 

  180.1 any dividend mandate or any variation or cancellation thereof or any notification of change of name or address, at any time after the expiry of two (2) years from the date such mandate variation, cancellation or notification was recorded by the Company;

 

  180.2 any instrument of transfer of Shares which has been registered, at any time after the expiry of six (6) years from the date of registration; and


  180.3 any other document on the basis of which any entry in the Register was made, at any time after the expiry of six (6) years from the date an entry in the Register was first made in respect of it;

 

  180.4 and it shall be presumed conclusively in favour of the Company that every share certificate (if any) so destroyed was a valid certificate duly and properly sealed and that every instrument of transfer so destroyed was a valid and effective instrument duly and properly registered and that every other document destroyed hereunder was a valid and effective document in accordance with the recorded particulars thereof in the books or records of the Company provided always that:

 

  (a) the foregoing provisions of this Article shall apply only to the destruction of a document in good faith and without express notice to the Company that the preservation of such document was relevant to a claim;

 

  (b) nothing contained in this Article shall be construed as imposing upon the Company any liability in respect of the destruction of any such document earlier than as aforesaid or in any case where the conditions of proviso (a) above are not fulfilled; and

 

  (c) references in this Article to the destruction of any document include references to its disposal in any manner.

WINDING UP

 

181. If the Company shall be wound up and the assets available for distribution among the Members as such shall be insufficient to repay the whole of the paid up or credited as paid up share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the capital paid up or credited as paid up at the commencement of the winding up on the Shares held by them respectively. And if in a winding up the assets available for distribution among the Members shall be more than sufficient to repay the whole of the share capital paid up or credited as paid up at the commencement of the winding up, the excess shall be distributed among the Members in proportion to the capital at the commencement of the winding up paid up or credited as paid up on the said Shares held by them respectively. Provided that this Article shall not affect the rights of the Members holding Shares issued upon special terms and conditions.

 

  181.1 In case of a sale by the liquidator under Section 260 of the 1963 Act, the liquidator may by the contract of sale agree so as to bind all the Members for the allotment to the Members directly of the proceeds of sale in proportion to their respective interests in the Company and may further by the contract limit a time at the expiration of which obligations or Shares not accepted or required to be sold shall be deemed to have been irrevocably refused and be at the disposal of the Company, but so that nothing herein contained shall be taken to diminish, prejudice or affect the rights of dissenting Members conferred by the said Section 260.

 

  181.2 The power of sale of the liquidator shall include a power to sell wholly or partially debentures, debenture stock, or other obligations of another company, either then already constituted or about to be constituted for the purpose of carrying out the sale.

 

182.

If the Company is wound up, the liquidator, with the sanction of a Special Resolution and any other sanction required by the Companies Acts, may divide among the Members in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not), and, for such purpose, may value any assets and determine how the division shall be carried out as between the Members or different classes of


  Members. The liquidator, with the like sanction, may vest the whole or any part of such assets in trustees upon such trusts for the benefit of the contributories as, with the like sanction, she determines, but so that no Member shall be compelled to accept any assets upon which there is a liability.

INDEMNITY

 

183.

 

  183.1 Subject to the provisions of and so far as may be admitted by the Companies Acts, every Director and Secretary shall be entitled to be indemnified by the Company against all costs, charges, losses, expenses and liabilities incurred by her in the execution and discharge of her duties or in relation thereto including any liability incurred by her in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by her as an officer or employee of the Company and in which judgement is given in her favour (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on her part) or in which she is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to her by the Court.

 

  183.2 As far as permissible under the Companies Acts, the Company shall indemnify any current or former executive of the Company (excluding any Directors or Secretary) or any person who is serving or has served at the request of the Company as a director, executive or trustee of another company, joint venture, trust or other enterprise against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by her in connection with any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the Company, to which she is, or she was, or is threatened to be made a party by reason of the fact that she is or was such a director, executive or trustee, provided always that the indemnity contained in this Article 183.2 shall not extend to any matter which would render it void pursuant to the Companies Acts.

 

  183.3 In the case of any threatened, pending or completed action, suit or proceeding by or in the right of the Company, the Company shall indemnify each person indicated in this Article 183 against expenses, including attorneys’ fees, actually and reasonably incurred in connection with the defence or the settlement thereof, except no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for fraud or dishonesty in the performance of her duty to the Company unless and only to the extent that the Court or the court in which such action or suit was brought shall determine upon application that despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court shall deem proper.

 

  183.4 As far as permissible under the Companies Acts, expenses, including attorneys’ fees, incurred in defending any action, suit or proceeding referred to in Articles of this Article 183 may be paid by the Company in advance of the final disposition of such action, suit or proceeding as authorised by the Board in the specific case upon receipt of an undertaking by or on behalf of the director, executive or trustee, or other indemnitee to repay such amount, unless it shall ultimately be determined that she is entitled to be indemnified by the Company as authorised by these Articles.


  183.5 It being the policy of the Company that indemnification of the persons specified in this Article shall be made to the fullest extent permitted by law, the indemnification provided by this Article shall not be deemed exclusive (a) of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Memorandum, Articles, any agreement, any insurance purchased by the Company, any vote of Members or disinterested Directors, or pursuant to the direction (however embodied) of any court of competent jurisdiction, or otherwise, both as to action in her official capacity and as to action in another capacity while holding such office, or (b) of the power of the Company to indemnify any person who is or was an employee or agent of the Company or of another company, joint venture, trust or other enterprise which she is serving or has served at the request of the Company, to the same extent and in the same situations and subject to the same determinations as are hereinabove set forth with respect to a director, executive or trustee. As used in this paragraph (b), references to the “Company” include all constituent companies in a consolidation or merger in which the Company or a predecessor to the Company by consolidation or merger was involved. The indemnification provided by this Article shall continue as to a person who has ceased to be a director, executive or trustee and shall inure to the benefit of the heirs, executors, and administrators of such a person.

 

  183.6 The Directors shall have power to purchase and maintain for any Director, the Secretary or other officers or employees of the Company insurance against any such liability as referred to in Section 200 of the 1963 Act or otherwise.

 

  183.7 The Company may additionally indemnify any employee or agent of the Company or any director, executive, employee or agent of any of its subsidiaries to the fullest extent permitted by law.

FINANCIAL YEAR

 

184. The financial year of the Company shall be as prescribed by the Board from time to time.

SHAREHOLDER RIGHTS PLAN

 

185. The Board is hereby expressly authorised to adopt any Shareholder Rights Plan, upon such terms and conditions as the Board deems expedient and in the best interests of the Company, subject to applicable law.


Names, Addresses and

Descriptions of Subscribers

Subscriber

  

Number of shares

taken by each

p.p Goodbody Subscriber One Limited

IFSC

North Wall Quay

Dublin

   1

Limited Liability Company

  

Signed: David Widger

  

p.p Goodbody Subscriber Two Limited

IFSC

North Wall Quay

Dublin

   1

Limited Liability Company

  

Signed: Mark Ward

  

Total Number of Shares Taken: 2

  
 

Dated 20 September 2012

  

Witness to the above signatures:

Charlene Connolly

Trainee Solicitor

A&L Goodbody

IFSC,

North Wall Quay,

Dublin 1

  

Exhibit 8.1

FORM OF OPINION OF CADWALADER, WICKERSHAM & TAFT LLP

                , 2012

Elan Corporation, plc

Treasury Building

Lower Grand Canal Street

Dublin 2, Ireland

Ladies and Gentlemen:

We have acted as tax counsel in connection with the separation of a substantial portion of the drug discovery business platform of Elan Corporation, plc, an Irish public limited company (“ Elan ”), pursuant to a “demerger” under Irish law in which Elan will contribute all of the shares of Neotope Biosciences Limited, an Irish private limited company, to Prothena Corporation plc, an Irish public limited company (“ Prothena ” and such transfer, the “ Prothena Transfer ”), in exchange for Prothena issuing directly to holders of Elan ordinary shares and Elan American Depositary Shares (collectively, the “ Elan Shareholders ”), on a pro rata basis, 100% of Prothena’s outstanding ordinary shares (such direct share issuance, the “ Distribution ”), and in which Elan Science One Limited, an Irish private limited company and a wholly owned subsidiary of Elan (“ ES1 ”), will acquire 18% of Prothena’s outstanding ordinary shares through a share subscription in exchange for a cash payment to Prothena, as described in the Demerger Agreement, dated as of November 8, 2012, between Elan and Prothena (the “ Demerger Agreement ”) (all capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Demerger Agreement).

In connection with the opinion expressed below, we have examined and relied upon, without independent investigation or verification, the accuracy and completeness of the facts, information, representations, covenants and agreements contained in (or depicted in) originals or copies, certified or otherwise identified to our satisfaction, of (i) the representation letter of Elan and Prothena with respect to the Prothena Transfer, Distribution and certain related transactions, addressed to us and dated as of the date hereof (the “ Representation Letter ”); (ii) the (a) Demerger Agreement, and (b) Subscription and Registration Rights Agreement, dated as of November 8, 2012, among Prothena, Elan and ES1, in each case, including any exhibits, attachments and amendments thereto (the documents described in (a)-(b) of this clause (ii), collectively, the “ Agreements ”, and the transactions to be consummated pursuant to the Agreements, collectively, the “ Restructuring Transactions ”); (iii) Form 10 of Prothena filed with the Securities and Exchange Commission (the “ SEC ”) on October 1, 2012, as amended or supplemented through the date hereof (the “ SEC Filing ”); (iv) Elan Corporation, plc Proposed Demerger of the Prothena Business to Prothena Corporation plc and Notice of Extraordinary General Meeting, dated as of November 13, 2012, as amended or supplemented through the date hereof; and (v) such other corporate records, agreements, documents and instruments (including


with respect to the Pre-Demerger Restructuring) as we have deemed necessary or appropriate to enable us to render the opinion set forth below, and we have assumed, with your permission, that all such facts, information, representations, covenants and agreements were initially and are currently true, correct and complete and will continue to be true, correct and complete through the closing date of the completion of the Restructuring Transactions (the “ Closing Date ”), without regard to any qualification as to knowledge or belief. Our opinion is expressly conditioned upon, among other things, the accuracy and completeness of the facts, information, representations, covenants and agreements set forth (or depicted) in the documents referred to above and the statements, representations, covenants and agreements made by Elan, Prothena and their Affiliates, including those set forth in the Representation Letter and the form of Tax Matters Agreement, all of which we have assumed, with your permission, were initially and are currently true, correct and complete and will continue to be true, correct and complete through the Closing Date. We have also made such other inquiries as we have deemed necessary or appropriate to enable us to render the opinion set forth below.

In our examination, we have assumed, with your permission, the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of all such latter documents. For purposes of this opinion, we have assumed, with your permission, that the transactions contemplated by the Agreements and the SEC Filing have been consummated or will be consummated, as applicable, in accordance therewith and as described (or depicted) therein and that no transaction or condition described (or depicted) therein and affecting this opinion will be waived or modified in any respect.

Our opinion is based upon the Internal Revenue Code of 1986, as amended (the “ Code ”), applicable Treasury regulations, rulings and decisions thereunder, and such other authorities as we have considered relevant, each as in effect on the date hereof, and as may be affected by amendments to the Code or the Treasury regulations thereunder or by subsequent judicial or administrative interpretation thereof, any of which may have retroactive effect. There can be no assurance that the opinion will be accepted by the Internal Revenue Service or, if challenged, by a court. We express no opinions other than as to the federal income tax law of the United States of America. This opinion does not address the various state, local or foreign tax consequences that may result from the transactions contemplated by the Agreements and the SEC Filing.

Based upon and subject to the foregoing and the assumptions and limitations set forth herein, it is our opinion that (i) the Prothena Transfer and Distribution should qualify as a reorganization pursuant to Section 368(a)(1)(D) of the Code, and (ii) the Distribution, as such, should qualify as a distribution of Prothena ordinary shares to Elan Shareholders pursuant to Section 355 of the Code.

We hereby consent to the filing of this opinion with the SEC as an exhibit to the SEC Filing. We also consent to the references to our firm in the SEC Filing under the headings “Questions and Answers about the Separation and Distribution”, “Terms of the Separation and Distribution and Related Transactions—U.S. Federal Income Tax Consequences”, “Risk Factors—Risks Relating to the Separation and Distribution”, and “The Separation and

 

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Distribution and Related Transactions—Material U.S. Federal Income Tax Consequences of the Separation and Distribution and Related Transactions”. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the General Rules and Regulations of the SEC.

This opinion is limited to the matters expressly stated herein and is not to be used, circulated, quoted or otherwise referred to for any other purpose without our express written permission. This opinion is rendered only as of the date hereof, and we expressly disclaim any obligation to update or modify this opinion as a consequence of any future changes in applicable laws or Treasury regulations or the facts bearing upon this opinion or the impact of any information, document, certificate, record, statement, representation, covenant or assumption relied upon herein that becomes incorrect or untrue, any of which could affect our conclusions.

Very truly yours,

CADWALADER, WICKERSHAM & TAFT LLP

 

 

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Exhibit 8.2

FORM OF OPINION OF KPMG LLP

[ ], 2012

Elan Corporation, plc

Treasury Building

Lower Grand Canal Street

Dublin 2, Ireland

Ladies and Gentlemen:

We have acted as a tax advisor to Elan Corporation, plc, an Irish public limited company (“ Elan ”), in connection with the separation of a substantial portion of the drug discovery business platform of Elan, pursuant to a “demerger” under Irish law in which Elan will contribute all of the shares of Neotope Biosciences Limited, an Irish private limited company, to Prothena Corporation plc, an Irish public limited company (“ Prothena ” and such transfer, the “ Prothena Transfer ”), in exchange for Prothena issuing directly to holders of Elan ordinary shares and Elan American Depositary Shares (collectively, the “ Elan Shareholders ”), on a pro rata basis, 100 percent of Prothena’s outstanding ordinary shares (such direct share issuance, the “ Distribution ”), and in which Elan Science One Limited, an Irish private limited company and a wholly owned subsidiary of Elan (“ ES1 ”), will acquire 18 percent of Prothena’s outstanding ordinary shares through a share subscription in exchange for a cash payment to Prothena, as described in the Demerger Agreement, dated as of November 8, 2012, between Elan and Prothena (the “ Demerger Agreement ”) (all capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Demerger Agreement).

In rendering our opinion set forth below, we have examined and relied upon, with your permission and without independent investigation or verification, the accuracy and completeness, of the facts, information, representations, covenants and agreements contained in the originals or copies, certified or otherwise identified to our satisfaction, of (i) the representation letter of Elan and Prothena with respect to the Prothena Transfer, Distribution and certain related transactions, addressed to us and dated as of the date hereof (the “ Representation Letter ”); (ii) the (a) Demerger Agreement, and (b) Subscription and Registration Rights Agreement, dated as of November 8, 2012, among Prothena, Elan and ES1, in each case, including any exhibits, attachments and amendments thereto (the documents described in (a)-(b) of this clause (ii), collectively, the “ Agreements ”, and the transactions to be consummated pursuant to the Agreements, collectively, the “ Restructuring Transactions ”); (iii) Form 10 of Prothena filed with the Securities and Exchange Commission (the “ SEC ”) on October 1, 2012, as amended or supplemented through the date hereof (the “ SEC Filing ”); (iv) Elan Corporation, plc Proposed Demerger of the Prothena Business to Prothena Corporation plc and Notice of Extraordinary General Meeting, dated as of November 13, 2012, as amended or supplemented through the date


hereof; and (v) such other corporate records, agreements, documents and instruments (including with respect to the Pre-Demerger Restructuring) as we have deemed necessary or appropriate to enable us to render the opinion set forth below. In addition, we have relied with your permission upon the accuracy and completeness, both initially and continuing as of the closing date of the completion of the Restructuring Transactions (the “ Closing Date ”), of certain facts, information, representations, covenants and agreements made by Elan, Prothena, and their Affiliates including those set forth in the Representation Letter and the form of Tax Matters Agreement. For the purpose of rendering our opinion, we have assumed with your permission that such facts, information, representations, covenants and agreements are, and will continue to be as of the Closing Date, true, correct and complete without regard to any qualification as to knowledge or belief. Our opinion assumes and is expressly conditioned on, among other things, the initial and continuing accuracy and completeness of the facts, information, representations, covenants and agreements set forth in the documents referred to above and the statements, representations, covenants and agreements made by Elan, Prothena, and their Affiliates including those set forth in the Representation Letter and the form of Tax Matters Agreement. We have also made such other inquires as we have deemed necessary or appropriate to enable us to render the opinion set forth below.

In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic, electronic or facsimile copies, and the authenticity of the originals of such documents. We have assumed that the transactions contemplated by the Agreements and the SEC Filing have been consummated or will be consummated as applicable in accordance with the Agreements and the SEC Filing, and that none of the terms and conditions contained therein have been or will be waived or modified in any respect prior to the Closing Date.

In rendering our opinion, we have considered applicable provisions of the United States Internal Revenue Code of 1986, as amended (the “ Code ”), Treasury regulations promulgated thereunder (the “ Regulations ”), pertinent judicial authorities, rulings of the Internal Revenue Service and such other authorities as we have considered relevant, in each case, in effect on the date hereof. It should be noted that such laws, Regulations, judicial decisions, administrative interpretations and other authorities are subject to change at any time and, in some circumstance, with retroactive effect. A change in any authorities upon which our opinion is based, or any variation or difference in any fact from those set forth or assumed herein, could affect our conclusions herein. Moreover, there can be no assurance that our opinion will be accepted by the Internal Revenue Service or, if challenged, by a court.

Based upon and subject to the foregoing and the assumptions and limitations set forth herein, it is our opinion that (i) the Prothena Transfer and Distribution should qualify as a reorganization pursuant to Section 368(a)(1)(D) of the Code, and (ii) the Distribution, as such, should qualify as a distribution of Prothena ordinary shares to Elan Shareholders pursuant to Section 355 of the Code.

This opinion is delivered to you in connection with the transactions referenced herein. Except as set forth above, we express no opinion to any party as to any tax consequences,

 

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whether federal, state, local or foreign, of the Restructuring Transactions or any other transaction contemplated by the Restructuring Transactions. We hereby consent to the filing of this opinion as an exhibit to the SEC Filing and to the use of our name under the heading “Questions and Answers about the Separation and Distribution”, “Terms of the Separation and Distribution and Related Transactions—U.S. Federal Income Tax Consequences”, “Risk Factors—Risks Relating to the Separation and Distribution”, and “The Separation and Distribution and Related Transactions—Material U.S. Federal Income Tax Consequences of the Separation and Distribution and Related Transactions” in the SEC Filing. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the General Rules and Regulations of the SEC.

This opinion is limited to the matters expressly stated herein and is not to be used, circulated, quoted or otherwise referred to for any other purpose without our express written permission. This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal developments or factual matters arising subsequent to the date hereof or the impact of any information, document, certificate, record, statement, representation, covenant or assumption relied upon herein that becomes incorrect or untrue.

Very truly yours,

KPMG LLP

 

 

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Exhibit 10.1

 

 

 

 

TAX MATTERS AGREEMENT

by and between

ELAN CORPORATION, PLC

AND

PROTHENA CORPORATION PLC,

Dated                     , 2012

 

 

 

 


TABLE OF CONTENTS

 

            

Page

 
ARTICLE I   
DEFINITIONS   

Section 1.01

  Definition of Terms      2   
ARTICLE II   
ALLOCATION OF TAXES   

Section 2.01

  Ordinary Course Taxes      7   

Section 2.02

  Transaction Taxes      7   

Section 2.03

  Transfer Taxes      8   

Section 2.04

  Entitlement to Tax Attributes      9   

Section 2.05

  Additional Costs      9   
ARTICLE III   
TAX RETURN FILING AND PAYMENT OBLIGATIONS   

Section 3.01

  Tax Return Preparation and Filing      9   

Section 3.02

  Treatment of Transactions and Reporting Obligations      10   

Section 3.03

  VAT      10   
ARTICLE IV   
TAX-FREE TREATMENT OF DISTRIBUTION & RELATED TRANSACTIONS   

Section 4.01

  Representations      10   

Section 4.02

  Covenants      11   
ARTICLE V   
TAX CONTESTS; INDEMNIFICATION; COOPERATION   

Section 5.01

  Notice      13   

Section 5.02

  Control of Tax Contests      13   

Section 5.03

  Indemnification Payments      13   

Section 5.04

  Interest on Late Payments      14   

Section 5.05

  Treatment of Indemnity Payments      14   

Section 5.06

  Cooperation      14   

 

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Section 5.07

  Confidentiality      15   
ARTICLE VI   
DISPUTE RESOLUTION   

Section 6.01

  Tax Disputes      15   
ARTICLE VII   
MISCELLANEOUS   

Section 7.01

  Authorization      16   

Section 7.02

  Expenses      16   

Section 7.03

  Entire Agreement      16   

Section 7.04

  Governing Law      16   

Section 7.05

  Notice      16   

Section 7.06

  Priority of Agreements      18   

Section 7.07

  Amendments and Waivers      18   

Section 7.08

  Termination      18   

Section 7.09

  No Third Party Beneficiaries      19   

Section 7.10

  Assignability      19   

Section 7.11

  Enforcement      19   

Section 7.12

  Survival      19   

Section 7.13

  Construction      19   

Section 7.14

  Severability      20   

Section 7.15

  Counterparts      20   

Section 7.16

  Successors      20   

 

-ii-


TAX MATTERS AGREEMENT

THIS TAX MATTERS AGREEMENT (this “ Agreement ”) is made and entered into as of [DATE] by and between Elan Corporation, plc, an Irish public limited company (“ Parent ”), and Prothena Corporation plc, an Irish public limited company (“ Prothena ”) (and Parent and Prothena, collectively, the “ Companies ”).

WHEREAS, the board of directors of Parent has determined that it would be appropriate and desirable to separate a substantial portion of the drug discovery business platform from Parent;

WHEREAS, the board of directors of Parent has approved and declared advisable the separation of a substantial portion of Parent’s drug discovery business platform pursuant to a “demerger” under Irish law in which Parent will contribute such drug discovery business platform to Prothena (such transfer, the “ Prothena Transfer ”) in exchange for Prothena issuing directly to holders of ordinary shares of Parent and American Depositary Shares (“ ADSs ”) of Parent, on a pro rata basis, Prothena ordinary shares representing 100% of Prothena’s outstanding ordinary shares (such direct share issuance, the “ Distribution ”);

WHEREAS, Parent and Prothena have entered into the Demerger Agreement pursuant to which Parent shall effect the Prothena Transfer and the Distribution;

WHEREAS, immediately following the Distribution, Elan Science One Limited, a wholly-owned subsidiary of Parent, will subscribe for 18% of Prothena’s outstanding ordinary shares in exchange for cash;

WHEREAS, the Companies intend that the Prothena Transfer and the Distribution (taken together) should not give rise to a chargeable gain for Parent in respect of the disposal by Parent of Neotope Biosciences, pursuant to Section 615 of the Taxes Consolidation Act, 1997 of Ireland (the “ TCA ”) and should be relieved from Irish stamp duty for which Prothena would otherwise be accountable for, pursuant to Section 80 of the Stamp Duties Consolidation Act, 1999 of Ireland (the “ SDCA ”);

WHEREAS, the Companies intend (and save in respect of any cash received in lieu of Prothena ordinary shares) that