8-K
false 0001971543 --12-31 0001971543 2023-11-13 2023-11-13

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

Current Report

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): November 13, 2023

 

 

Mural Oncology plc

(Exact name of Registrant as Specified in Its Charter)

 

 

 

Ireland   001-41837   98-1748617
(State or Other Jurisdiction
of Incorporation)
 

(Commission

File Number)

  (IRS Employer
Identification No.)
10 Earlsfort Terrace    
Dublin 2, D02 T380, Ireland     Not Applicable
(Address of Principal Executive Offices)     (Zip Code)

Registrant’s Telephone Number, Including Area Code: +353-1-905-8020

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):

 

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

 

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

 

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

 

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

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

 

Title of each class

 

Trading
Symbol(s)

 

Name of each exchange

on which registered

Ordinary Shares, nominal value $0.01   MURA   The Nasdaq Global Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  

 

 

 


Item 1.01

Entry into a Material Definitive Agreement.

Agreements with Alkermes

On November 15, 2023, Alkermes plc (“Alkermes”) completed the previously announced separation (the “Separation”) of its oncology business into Mural Oncology plc (“Mural”), a new, independent, publicly-traded company. The Separation was effected by means of a distribution of all of the outstanding ordinary shares of Mural to Alkermes’ shareholders (the “Distribution”), in which each of Alkermes’ shareholders received one ordinary share, nominal value $0.01 per share, of Mural for every ten ordinary shares, par value $0.01 per share, of Alkermes held by such shareholder as of the close of business on November 6, 2023, the record date for the Distribution. The effective time of the Distribution was 12:01 a.m. on November 15, 2023. As a result of the Separation and Distribution, Mural became an independent public company and will commence regular way trading under the symbol “MURA” on the Nasdaq Global Market on November 16, 2023.

In connection with the Separation, on November 13, 2023, Mural or Mural Oncology, Inc., a wholly-owned subsidiary of Mural (“Mural Subsidiary’), as applicable, entered into certain agreements with Alkermes or Alkermes, Inc., a wholly-owned subsidiary of Alkermes (“Alkermes Subsidiary”), as applicable, to provide a framework for Mural’s relationship with Alkermes following the Separation, including, among others, the following agreements:

 

   

Separation Agreement

 

   

Tax Matters Agreement

 

   

Employee Matters Agreement

 

   

Alkermes Transition Services Agreement

 

   

Mural Transition Services Agreement

A summary of each of the foregoing agreements can be found in the section entitled “Certain Relationships and Related Person Transactions—Relationships with Alkermes—Agreements with Alkermes” of the Information Statement, dated October 31, 2023, filed as Exhibit 99.1 to this Current Report on Form 8-K (the “Information Statement”), and is incorporated into this Item 1.01 by reference. In addition, the descriptions of the foregoing agreements are qualified in their entirety by reference to the complete terms and conditions of those agreements, which are attached as Exhibits 2.1, 10.1, 10.2, 10.3, and 10.4, respectively, to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference.

Lease Assumption Agreement

In connection with the Separation, Alkermes Subsidiary entered into an assignment and assumption of lease agreement (the “Lease Assumption Agreement”) with Mural Subsidiary, dated as of November 13, 2023, pursuant to which Alkermes Subsidiary assigned to Mural Subsidiary an operating lease for approximately 180,000 square feet of corporate office space, administrative areas and laboratories at 850 and 852 Winter Street in Waltham, Massachusetts, which includes 34,000 square feet of laboratory space (as amended, the “Winter Street Lease”). Under the terms of the Lease Assumption Agreement, Mural Subsidiary assumed all of Alkermes Subsidiary’s obligations under the Winter Street Lease.

A summary of the Winter Street Lease can be found in the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Contractual Obligations and commitments” in the Information Statement, and is incorporated into this Item 1.01 by reference. In addition, the descriptions of the Winter Street Lease and the Lease Assumption Agreement are qualified in their entirety by reference to the complete terms and conditions of such agreements, which are attached as Exhibits 10.8 and 10.9, respectively, to this Current Report on Form 8-K and incorporated into this Item 1.01 by reference.

 


Item 2.01.

Completion of Acquisition or Disposition of Assets.

The description of the Separation and Distribution included under Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 2.01 by reference.

 

Item 3.03.

Material Modification to Rights of Security Holders.

The description of the Constitution (as defined below) included under Item 5.03 of this Current Report on Form 8-K is incorporated into this Item 3.03 by reference.

 

Item 5.02.    

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Appointment of Executive Officers and Change in Principal Financial Officer and Principal Accounting Officer

In connection with the Separation, the following individuals were elected to the positions set forth in the table below:

 

Name

  

Position

Caroline Loew, Ph.D.

   Chief Executive Officer

Adam Cutler

   Chief Financial Officer

Vicki L. Goodman, M.D.

   Chief Medical Officer

In connection with the Separation, Dr. Caroline Loew resigned as Principal Financial Officer and Principal Accounting Officer, effective as of November 15, 2023. In connection with the Separation, Adam Cutler was appointed as Principal Financial Officer and Principal Accounting Officer, effective as of November 15, 2023.

Biographical information for each of the executive officers named above can be found in the Information Statement under the section entitled “Management—Directors and Executive Officers,” which is incorporated into this Item 5.02 by reference. None of Dr. Loew, Mr. Cutler or Dr. Goodman is, or has been since January 1, 2022, a participant in any transaction involving Mural, and is not a participant in any proposed transaction with Mural, in each case, required to be disclosed pursuant to Item 404(a) of Regulation S-K. There are no family relationships between Dr. Loew, Mr. Cutler or Dr. Goodman and any of the Company’s directors or executive officers.

Employment Agreements with Dr. Loew, Mr. Cutler and Dr. Goodman

On November 15, 2023, Mural Subsidiary entered into employment agreements with each of Dr. Loew, Mr. Cutler, and Dr. Goodman. A summary of the employment agreements with each of Dr. Loew, Mr. Cutler and Dr. Goodman can be found in the section entitled “Executive Compensation—Employment Agreements” of the Information Statement and is incorporated into this Item 5.02 by reference. In addition, the descriptions of the foregoing agreements are qualified in their entirety by reference to the complete terms and conditions of those agreements, which are attached as Exhibits 10.5, 10.6 and 10.7, respectively, to this Current Report on Form 8-K and incorporated into this Item 5.02 by reference.

Indemnification Agreements

In connection with the Separation, each of the executive officers named above and each of Mural’s directors entered into or will enter into a deed of indemnification with Mural and an indemnification agreement with Mural Subsidiary, substantially in the forms attached as 10.5, 10.6 and 10.7 to Mural’s Registration Statement on Form 10, filed with the Commission on October 10, 2023 (File No. 001-41837).

 


Item 5.03.

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The Memorandum and Articles of Association of Mural (the “Constitution”) was amended and restated, effective November 15, 2023. A description of the material provisions of the Constitution can be found in the Information Statement under the section entitled “Description of Mural’s Share Capital,” which is incorporated into this Item 5.03 by reference. The description set forth under this Item 5.03 is qualified in its entirety by reference to the full text of the Constitution, which is filed with this Current Report on Form 8-K as Exhibit 3.1.

 

Item 7.01.

Regulation FD Disclosure.

On November 15, 2023, Mural issued a press release announcing the completion of the Separation and the launch of its operations as an independent company. A copy of the press release is attached to this Current Report on Form 8-K as Exhibit 99.2 and is incorporated into this Item 7.01 by reference.

 

Item 9.01

Financial Statements and Exhibits

(d) Exhibits

 

Exhibit
No.

  

Description

  2.1*    Separation Agreement, dated as of November 13, 2023, by and between Alkermes plc and Mural Oncology plc.
  3.1    Amended and Restated Memorandum and Articles of Association of Mural Oncology plc.
10.1*    Tax Matters Agreement, dated as of November 13, 2023, by and between Alkermes plc and Mural Oncology plc.
10.2    Employee Matters Agreement, dated as of November 13, 2023, by and between Alkermes plc and Mural Oncology plc.
10.3*    Transition Services Agreement, dated as of November 13, 2023, by and between Alkermes, Inc. and Mural Oncology, Inc.
10.4*    Transition Services Agreement, dated as of November 13, 2023, by and between Mural Oncology, Inc. and Alkermes, Inc.
10.5+*    Employment Agreement, effective as of November 15, 2023, by and between Mural Oncology, Inc. and Adam Cutler
10.6+*    Employment Agreement, effective as of November 15, 2023, by and among Mural Oncology plc, Mural Oncology, Inc. and Dr. Caroline Loew (Incorporated by reference to Exhibit 10.10 to Mural Oncology plc’s Registration Statement on Form 10 filed with the SEC on October 10, 2023 (File No. 001-41837).
10.7+*    Employment Agreement, effective as of November 15, 2023, by and between Mural Oncology, Inc. and Vicki L. Goodman
10.8    Lease between Alkermes, Inc. and PDM Unit 850, LLC, dated as of April 22, 2009, as amended.
10.9    Assignment and Assumption of Lease, dated as of November 13, 2023, by and between Alkermes, Inc. and Mural Oncology, Inc.
99.1    Information Statement of Mural Oncology plc, dated October 31, 2023.
99.2    Press Release of Mural Oncology plc, dated November 15, 2023.
104    Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

*

Schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. Mural hereby undertakes to furnish copies of any of the omitted schedules and exhibits upon request by the U.S. Securities and Exchange Commission.

+

Management contract or compensatory plan or arrangement.

 


SIGNATURES

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

 

    Mural, Inc.
Dated: November 15, 2023     By:  

/s/ Caroline Loew

    Name:   Caroline Loew, Ph.D.
    Title:   Chief Executive Officer
EX-2.1

Exhibit 2.1

Execution Version

SEPARATION AGREEMENT

by and between

ALKERMES PLC

and

MURAL ONCOLOGY PLC

Dated as of November 13, 2023


SEPARATION AGREEMENT

TABLE OF CONTENTS

 

ARTICLE I DEFINITIONS AND INTERPRETATION

     2  

Section 1.1

  General      2  

Section 1.2

  References; Interpretation      16  

ARTICLE II THE SEPARATION

     18  

Section 2.1

  General      18  

Section 2.2

  Transfer of Assets; Assumption of Liabilities      18  

Section 2.3

  Treatment of Shared Contracts      20  

Section 2.4

  Intellectual Property Licenses      21  

Section 2.5

  Intercompany Accounts      22  

Section 2.6

  Payments Prior to the Distribution Effective Time      22  

Section 2.7

  Payments Following the Distribution Effective Time      22  

Section 2.8

  Limitation of Liability      22  

Section 2.9

  Transfers Not Effected at or Prior to the Distribution Effective Time; Transfers Deemed Effective as of the Distribution Effective Time      23  

Section 2.10

  Release of Guarantees      25  

Section 2.11

  Further Assurances      26  

Section 2.12

  Novation of Alkermes Retained Liabilities; Indemnification      27  

Section 2.13

  Novation of Mural Liabilities; Indemnification      28  

Section 2.14

  Disclaimer of Representations and Warranties      29  

Section 2.15

  Cash Management      30  

ARTICLE III CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTION

     30  

Section 3.1

  Transaction Agreements      30  

ARTICLE IV THE DISTRIBUTION

     30  

Section 4.1

  Distribution      30  

Section 4.2

  Fractional Shares      31  

Section 4.3

  Actions in Connection with the Distribution      31  

Section 4.4

  Sole and Absolute Discretion of Alkermes      32  

Section 4.5

  Conditions to Distribution      33  

ARTICLE V CERTAIN COVENANTS

     34  

Section 5.1

  Non-Solicit; Non-Hire      34  

Section 5.2

  No Right to Use Regulatory Information      35  

Section 5.3

  Use of Retained Names and Marks      35  

ARTICLE VI INDEMNIFICATION

     35  

Section 6.1

  Release of Pre-Distribution Claims      35  

Section 6.2

  Indemnification by Alkermes      38  

Section 6.3

  Indemnification by Mural      38  

Section 6.4

  Procedures for Indemnification      39  

 

-i-


Section 6.5

  Indemnification Obligations Net of Insurance Proceeds and Other Amounts      41  

Section 6.6

  Contribution      42  

Section 6.7

  Additional Matters; Survival of Indemnities      43  

ARTICLE VII PRESERVATION OF RECORDS; ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE

     44  

Section 7.1

  Preservation of Information      44  

Section 7.2

  Financial Statements and Accounting      44  

Section 7.3

  Provision of Information      45  

Section 7.4

  Limitations of Liability      47  

Section 7.5

  Witness Services; Cooperation      47  

Section 7.6

  Reimbursement; Other Matters      47  

Section 7.7

  Confidentiality      47  

Section 7.8

  Privilege Matters      49  

Section 7.9

  Conflicts Waiver      51  

Section 7.10

  Ownership of Information      51  

Section 7.11

  Other Agreements      52  

Section 7.12

  Data Protection      52  

ARTICLE VIII DISPUTE RESOLUTION

     54  

Section 8.1

  Negotiation      54  

Section 8.2

  Arbitration      54  

Section 8.3

  Continuity of Service and Performance      55  

ARTICLE IX INSURANCE MATTERS

     56  

Section 9.1

  Rights to Alkermes Policies      56  

Section 9.2

  Claims      57  

ARTICLE X MISCELLANEOUS

     57  

Section 10.1

  Complete Agreement; Construction; Enforceability      57  

Section 10.2

  Transaction Agreements      57  

Section 10.3

  Counterparts      58  

Section 10.4

  Survival of Agreements      58  

Section 10.5

  Fees, Costs and Expenses      58  

Section 10.6

  Notices      59  

Section 10.7

  Waivers      60  

Section 10.8

  Assignment      60  

Section 10.9

  Successors and Assigns      60  

Section 10.10

  Termination and Amendment      60  

Section 10.11

  Payment Terms      60  

Section 10.12

  Subsidiaries      61  

Section 10.13

  Third Party Beneficiaries      61  

Section 10.14

  Titles and Headings      61  

Section 10.15

  Schedules      61  

 

-ii-


Section 10.16

  Governing Law      62  

Section 10.17

  Severability      62  

Section 10.18

  Public Announcements      62  

Section 10.19

  Interpretation      62  

Section 10.20

  No Duplication; No Double Recovery      62  

Section 10.21

  No Admission of Liability      63  

 

   List of Schedules
Schedule 1.1(43)    Excluded Assets
Schedule 1.1(44)(i)    Excluded Liabilities - General
Schedule 1.1(44)(ii)    Excluded Liabilities – Distribution Disclosure Documents
Schedule 1.1(64)(ii)    Mural Assets - Intellectual Property
Schedule 1.1(64)(iii)    Mural Assets - Trademarks
Schedule 1.1(64)(ix)    Mural Assets - Contracts
Schedule 1.1(64)(xi)    Mural Assets - Governmental Entity Authorizations
Schedule 1.1(64)(xiii)    Mural Assets - Records
Schedule 1.1(64)(xiv)    Mural Assets - Leased Real Property
Schedule 1.1(64)(xv)    Alkermes Tangible Assets
Schedule 1.1(71)(vii)    Mural Liabilities - Other Liabilities
Schedule 1.1(73)    Mural Product Candidates
Schedule 1.1(85)    Plan of Reorganization
Schedule 1.1(97)    Shared Contracts
Schedule 2.5    Intercompany Accounts
Schedule 2.8(ii)    Limitation of Liability – Contracts
Schedule 2.9(d)    Transfers Not Effected at or Prior to the Distribution Effective Time
Schedule 7.12(b)    Separation Personal Data
Schedule 10.5(d)    Expenses

 

-iii-


SEPARATION AGREEMENT

This SEPARATION AGREEMENT (this “Agreement”), dated as of November 13, 2023, is entered into by and between Alkermes plc, an Irish public limited company (“Alkermes”), Mural Oncology plc, an Irish public limited company (“Mural”), and, solely with respect to Article II, Section 4.5 and Section 7.12, Mural Oncology, Inc., a Delaware corporation (“Mural US”). “Party” or “Parties” means Alkermes, Mural or Mural US, individually or collectively, as the case may be. Each capitalized term used and not elsewhere defined herein has the meaning set forth in Section 1.1.

W I T N E S S E T H:

WHEREAS, Alkermes, acting together with its Subsidiaries, currently conducts the Neuroscience Business and the Oncology Business;

WHEREAS, the Board of Directors of Alkermes (the “Board”) has determined that it is appropriate, desirable and in the best interests of Alkermes that its Oncology Business be separated from its Neuroscience Business and operated by a separate, publicly-traded company (the “Separation”), such that following the Separation (i) the Neuroscience Business shall be owned and conducted, directly or indirectly, by Alkermes and its Subsidiaries and (ii) the Oncology Business shall be owned and conducted, directly or indirectly, by Mural and its Subsidiaries;

WHEREAS, as part of, and to implement, the Separation, Alkermes shall, and shall cause its Subsidiaries to, implement the Plan of Reorganization, which shall include the contribution, assignment, transfer, conveyance and delivery of the Mural Assets and the Mural Cash Contribution from Alkermes or its Subsidiaries to Mural US in exchange for (i) the assumption by Mural US of the Mural Liabilities and (ii) the issuance by Mural US to Alkermes or its Subsidiaries, as applicable, of shares of Mural US Common Stock;

WHEREAS, Alkermes intends that, on the Distribution Date and subject to the terms and conditions of this Agreement, it will make a distribution in specie of the Oncology Business to the Record Holders, effected by the transfer of Alkermes’ entire legal and beneficial interest in the issued capital stock of Mural US to Mural in consideration for Mural issuing Mural Ordinary Shares pro rata to the Record Holders (such issuance, the “Distribution”) on the terms and conditions set forth in this Agreement;

WHEREAS, it is appropriate and desirable to set forth the principal corporate transactions required to effect the Separation, including those described in the Plan of Reorganization, and certain other agreements relating to the relationship of Alkermes and Mural and their respective Subsidiaries following the Distribution;

WHEREAS, (i) the Board has (x) determined that the Separation and the other transactions contemplated by this Agreement and the Ancillary Agreements have a valid business purpose, are in furtherance of and consistent with Alkermes’ business strategy and are in the best interests of Alkermes and (y) approved this Agreement and each of the Ancillary Agreements and (ii) the board of directors of Mural has approved this Agreement and each of the Ancillary Agreements;

 

1


WHEREAS, the Parties acknowledge that this Agreement and the Ancillary Agreements represent the integrated agreement of Alkermes and Mural relating to the Separation and the Distribution, are being entered into together and would not have been entered into independently;

WHEREAS, for U.S. federal income tax purposes, it is the intention of the Parties that the Separation and the Distribution, in relevant part and together with certain related transactions, will be tax-free under Sections 355 and 368(a)(1)(D) of the Code, except for cash received in lieu of fractional Mural Ordinary Shares; and

WHEREAS, this Agreement is intended to be, and is adopted as, as a “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g).

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.1 General. As used in this Agreement, the following terms shall have the following meanings:

(1) “Action” means any demand, action, claim, suit, countersuit, arbitration, inquiry, subpoena, case, litigation, proceeding or investigation (whether civil, criminal, administrative or investigative) by or before any court or grand jury, any Governmental Entity or any arbitration or mediation tribunal.

(2) “Administrator” shall have the meaning set forth in Section 8.2(a).

(3) “Affiliate” means, when used with respect to a specified Person and at a point in, or with respect to a period of, time, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person at such point in or during such period of time. For the purposes of this definition, “control”, when used with respect to any specified Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by Contract or otherwise. It is expressly agreed that no Party or member of its Group shall be deemed to be an Affiliate of the other Party or a member of such other Party’s Group solely by reason of having common shareholders or one or more directors in common or by reason of having been under common control of Alkermes prior to the Distribution Effective Time.

(4) “Agreement” shall have the meaning set forth in the Recitals.

(5) “Alkermes” shall have the meaning set forth in the Recitals.

(6) “Alkermes Claim” shall have the meaning set forth in Section 6.3.

(7) “Alkermes In-License” shall have the meaning set forth in Section 2.4(b).

 

2


(8) “Alkermes Ordinary Shares” means the ordinary shares of $0.01 par value per share of Alkermes.

(9) “Alkermes Designees” means any and all entities (including corporations, general or limited partnerships, trusts, joint ventures, unincorporated organizations, limited liability companies or other entities) designated by Alkermes and that will be members of the Alkermes Group as of immediately prior to the Distribution Effective Time. For clarity, members of the Alkermes Group party to any Conveyancing and Assumption Instrument shall be an Alkermes Designee for purposes of this Agreement.

(10) “Alkermes Group” means (a) prior to the Distribution Effective Time, Alkermes and each entity that will be a Subsidiary of Alkermes immediately following the Distribution Effective Time and (b) from and after the Distribution Effective Time, Alkermes and each entity that is a Subsidiary of Alkermes.

(11) “Alkermes Indemnitees” means the members of the Alkermes Group and their respective past, present and future directors, officers, employees and agents, in each case in their respective capacities as such, and each of the heirs, executors, administrators, successors and assigns of any of the foregoing.

(12) “Alkermes Released Liabilities” shall have the meaning set forth in Section 6.1(a)(i).

(13) “Alkermes Retained Assets” means (i) any and all Assets of Alkermes or any of its Subsidiaries that are not Mural Assets and, after the Distribution Effective Time, any and all Assets that are acquired or otherwise become Assets of any member of the Alkermes Group and (ii) any Assets that are held by the Mural Group or the Alkermes Group immediately prior to the Distribution Effective Time not exclusively related to the Oncology Business that were inadvertently omitted or assigned that, had the Parties given specific consideration to such Assets as of the date of this Agreement, would have otherwise been classified as an Alkermes Retained Asset based on the principles set forth in this Section 1.1(13); provided, that no Asset shall be an Alkermes Retained Asset solely as a result of this clause (ii) unless a claim with respect thereto is made by Alkermes on or prior to the date that is the second anniversary of the Distribution Date. For clarity, Alkermes Retained Assets shall include all Excluded Assets.

(14) “Alkermes Retained Liabilities” means (i) all Liabilities of Alkermes or any of its Subsidiaries that are not Mural Liabilities, and, after the Distribution Effective Time, all Liabilities of each member of the Alkermes Group and (ii) any and all other Liabilities of Alkermes or any of its Subsidiaries immediately prior to the Distribution Effective Time that were inadvertently omitted or assigned that, had the Parties given specific consideration to such Liabilities as of the date of this Agreement, would have otherwise been classified as an Alkermes Retained Liability based on the principles set forth in this Section 1.1(14); provided, that no Liability shall be an Alkermes Retained Liability solely as a result of this clause (ii) unless a claim with respect thereto is made by Alkermes or Mural on or prior to the date that is the second anniversary of the Distribution Date. For clarity, Alkermes Retained Liabilities shall include all Excluded Liabilities.

 

3


(15) “Alkermes Transition Services Agreement” means the Transition Services Agreement to be entered into by and between Alkermes, Inc. and Mural US under which Alkermes, Inc. will provide certain services to Mural US.

(16) “Ancillary Agreements” means the Transaction Agreements other than this Agreement, all Conveyancing and Assumption Instruments and any and all other agreements entered into by the Parties or members of their respective Groups (but as to which no Third Party is a party) in connection with the Separation or the other transactions contemplated by the Transaction Agreements.

(17) “Arbitrators” shall have the meaning set forth in Section 8.2(a).

(18) “Assets” means all rights, title and ownership interests in and to all rights, properties, claims, Contracts, businesses, or assets (including goodwill), wherever located (including in the possession of vendors or other Third Parties or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible or intangible, whether accrued, contingent or otherwise, in each case, whether or not recorded or reflected on the books and records or financial statements of any Person. Except as otherwise specifically set forth herein or in the Tax Matters Agreement, the rights and obligations of the Parties with respect to Taxes shall be governed by the Tax Matters Agreement and, therefore, Taxes (including any Tax items, attributes or rights to receive any Tax Refunds (as defined in the Tax Matters Agreement)) shall not be treated as Assets governed by this Agreement.

(19) “Assume” and “Assumption” shall have the respective meanings set forth in Section 2.2(a)(iii).

(20) “Board” shall have the meaning set forth in the Recitals.

(21) “Bankruptcy Code” shall have the meaning set forth in Section 2.4(e).

(22) “Business Day” means any day other than Saturday or Sunday and any other day on which commercial banking institutions located in New York, New York are required, or authorized by Law, to remain closed.

(23) “Claiming Party” shall have the meaning set forth in Section 6.4(b).

(24) “Code” shall have the meaning set forth in the Tax Matters Agreement.

(25) “Commission” means the U.S. Securities and Exchange Commission.

(26) “Confidential Information” means, with respect to a Party, all confidential or proprietary information to the extent concerning: (i) such Party or any of its Subsidiaries, (ii) the Oncology Business, any Mural Assets or any Mural Liabilities and (iii) the Neuroscience Business, any Alkermes Retained Assets or any Alkermes Retained Liabilities, in each case of clauses (i), (ii) and (iii) including any such information furnished pursuant to Article VII or otherwise pursuant to this Agreement or any Ancillary Agreement; provided, however, that “Confidential Information” shall not include any information that is (i) in the public domain or known to the public through no fault of the receiving Party or any of its Subsidiaries,

 

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(ii) lawfully acquired after the Distribution Effective Time by the receiving Party or any of its Subsidiaries from Third Parties not known to be subject to confidentiality obligations with respect to such information or (iii) independently developed by the receiving Party or any of its Subsidiaries after the Distribution Effective Time without reference to any Confidential Information of the disclosing Party or any of its Subsidiaries. For the avoidance of doubt, subject to the foregoing proviso, (x) any information that Mural or Mural US receives from any Third Party to a Third Party Agreement retained by any member of the Alkermes Group (or that is a Shared Contract) regarding Alkermes’ technology, products, business or objectives shall be deemed to be Confidential Information of Alkermes, and (y) any information that Alkermes receives from any Third Party to a Third Party Agreement assigned to any member of the Mural Group (or that is a Shared Contract) regarding Mural’s technology, products, business or objectives shall be deemed to be Confidential Information of Mural. All confidential or proprietary information to the extent concerning the Oncology Business, any Mural Assets or any Mural Liabilities is hereby deemed to be part of Mural’s, but not Alkermes’, Confidential Information. All confidential or proprietary information to the extent concerning the Neuroscience Business, any Alkermes Retained Assets or any Alkermes Retained Liabilities is hereby deemed to be part of Alkermes’, but not Mural’s, Confidential Information.

(27) “Consents” means any consents, waivers, notices, reports or other filings to be obtained from or made, including with respect to any Contract, or any registrations, licenses, permits, authorizations to be obtained from, or approvals from, or notification requirements to, any Third Parties, including any Governmental Entity.

(28) “Contract” means any agreement, contract, subcontract, obligation, binding understanding, note, indenture, instrument, option, lease, promise, arrangement, release, warranty, license, sublicense, insurance policy, benefit plan, purchase order or legally binding commitment or undertaking of any nature (whether written or oral and whether express or implied).

(29) “Control” means, with respect to any Intellectual Property, the right of a Party to grant a license, a sublicense or a similar grant of rights under such Intellectual Property without breaching an agreement with a Third Party or incurring payment obligations in connection with the grant or practice of such license.

(30) “Conveyancing and Assumption Instruments” means, collectively, the various Contracts (other than any Transaction Agreement) by and between or among any member(s) of the Alkermes Group, on the one hand, and any member(s) of the Mural Group, on the other hand, and, in certain cases, the Third Parties also party thereto, including, but not limited to, related local asset transfer agreements, intellectual property assignment agreements or novations and other documents entered into prior to the Distribution Effective Time and to be entered into, in each case to implement the Plan of Reorganization and/or effect the Transfer of Assets and the Assumption of Liabilities in the manner contemplated by the Transaction Agreements, in such form or forms as the applicable parties thereto agree.

(31) “Copyrights” shall have the meaning set forth in Section 1.1(56)(iii).

(32) “Direct Claim” shall have the meaning set forth in Section 6.4(a)(ii).

 

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(33) “Dispute Notice” shall have the meaning set forth in Section 8.1.

(34) “Disputes” shall have the meaning set forth in Section 8.1.

(35) “Distribution” shall have the meaning set forth in the Recitals.

(36) “Distribution Agent” means Computershare Trust Company, N.A.

(37) “Distribution Date” means the date, as shall be determined by the Board, on which the Distribution occurs.

(38) “Distribution Disclosure Documents” means the Form 10 and all exhibits thereto (including the Information Statement), any Current Reports on Form 8-K and the registration statement on Form S-8 related to securities to be offered under Mural’s employee incentive plans, in each case as filed or furnished by Mural with or to the Commission in connection with the Distribution and including any amendments or supplements thereto.

(39) “Distribution Effective Time” means 12:01 a.m., Eastern time, on the Distribution Date.

(40) “Distribution Ratio” means 0.1.

(41) “Employee Matters Agreement” means the Employee Matters Agreement to be entered into by and between Alkermes and Mural.

(42) “Exchange Act” means the Securities Exchange Act of 1934.

(43) “Excluded Assets” means: (i) the Assets listed or described on Schedule 1.1(43); (ii) all cash and cash equivalents, except to the extent expressly assigned to the Mural Group pursuant to Section 2.15; (iii) subject to the rights of the Mural Group pursuant to Article IX, all Policies binders and claims and rights thereunder and all prepaid insurance premiums (other than any insurance policies acquired prior to the Distribution Effective Time directly by and in the name of Mural or a member of the Mural Group); (iv) any and all work papers of Alkermes’ auditors, excluding the accounting records prepared in connection with the preparation of Mural’s financial information included in the Information Statement or any subsequent filings or financial periods through the Distribution Date, and any other Tax records (including accounting records, other than the accounting records prepared in connection with the preparation of the financial information included in the Information Statement or any subsequent filings or financial periods through the Distribution Date) of any Alkermes Group member (which will be addressed in the Tax Matters Agreement), excluding all Alkermes templates and form documents used in the operation of the Oncology Business; and (v) any and all Assets that are expressly contemplated by this Agreement or any Ancillary Agreement (or the Schedules hereto or thereto) as Assets which have been or are to be retained by, or Transferred to, any member of the Alkermes Group.

 

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(44) “Excluded Liabilities” means (i) the Liabilities listed or described on Schedule 1.1(44)(i); (ii) with respect to all information contained in the Distribution Disclosure Documents, any and all Liabilities relating to, arising out of or resulting from 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 statement therein not misleading, with respect to statements set forth on Schedule 1.1(44)(ii) as being made explicitly in Alkermes’ name in the Distribution Disclosure Documents; and (iii) any and all Liabilities to the extent expressly contemplated by this Agreement or by any Ancillary Agreement (or the Schedules hereto or thereto) as Liabilities to be Assumed or discharged by any member of the Alkermes Group.

(45) “Form 10” means the registration statement on Form 10 (File Number: 001-41837) filed by Mural with the Commission under the Exchange Act in connection with the Distribution, including any amendment or supplement thereto.

(46) “Governmental Entity” means any nation or government, any state, municipality or other political subdivision thereof and any entity, body, agency, commission, department, board, bureau or court, whether domestic, foreign, multinational, or supranational exercising executive, legislative, judicial, regulatory, self-regulatory or administrative functions of or pertaining to government, including Nasdaq and any similar self-regulatory body under applicable securities Laws.

(47) “Group” means (i) with respect to Alkermes, the Alkermes Group and (ii) with respect to Mural, the Mural Group, as the context requires.

(48) “Indemnifiable Losses” means any and all Liabilities, including damages, losses, obligations, penalties, judgments, settlements, claims, payments, fines and other costs and expenses (but excluding consequential, indirect, punitive, exemplary, remote, speculative or similar damages, except (i) to the extent paid to a Third Party or (ii) consequential or similar damages resulting from a breach of Article VII) of any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and the reasonable fees and expenses of attorneys, accountants, consultants and other professionals incurred in the investigation or defense thereof or the enforcement of rights hereunder.

(49) “Indemnifying Party” means, with respect to any Direct Claim or Third Party Claim, the Party which is or may be required pursuant to Article VI to provide indemnification pursuant to such claim.

(50) “Indemnitee” means, with respect to any Direct Claim or Third Party Claim, the Alkermes Indemnitee or Mural Indemnitee, as the case may be, that may be entitled to indemnification hereunder with respect to such claim.

(51) “Indemnity Payment” shall have the meaning set forth in Section 6.5(a).

(52) “Information Statement” means the Information Statement attached as Exhibit 99.1 to the Form 10, to be distributed or made available to the holders of Alkermes Ordinary Shares in connection with the Distribution, including any amendment or supplement thereto.

 

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(53) “Initial Mural Preferred Share” means one preferred share, with a par value of $0.01, of Mural, issued and outstanding as of immediately prior to the consummation of the Distribution.

(54) “Initial Share Capital” means all of the shares in the capital of Mural issued and outstanding as of immediately prior to the consummation of the Distribution, which consists of two Mural Ordinary Shares, 25,000 euro deferred shares, with a par value of €1.00 per share, and the Initial Mural Preferred Share, all of which are held by an Irish corporate services provider.

(55) “Insurance Proceeds” means those monies (i) received by an insured from a Third Party insurance carrier or (ii) paid by a Third Party insurance carrier on behalf of an insured, in either case net of any applicable deductible or retention.

(56) “Intellectual Property” means all intellectual property, whether registered or unregistered and whether granted, pending or expired, of every kind and description throughout the world, including all U.S. and non-U.S.:

(i) trademarks, trade dress, service marks, certification marks, common law trademarks and service marks, logos, slogans, designs, names, corporate names, and trade names, together with the goodwill symbolized by any of the foregoing (collectively, “Trademarks”);

(ii) patents and patent applications, and any and all related national or international counterparts thereto and utility models, including any provisionals, divisionals, continuations, continuations-in-part, reissues, reexaminations, substitutions and extensions thereof (including supplementary protection certificates) (collectively, “Patents”);

(iii) copyrights and copyrightable subject matter, excluding Know-How (collectively, “Copyrights”);

(iv) internet domain names, social media accounts and addresses and other similar designations of source or origin;

(v) rights in software and computer systems;

(vi) all applications and registrations for the foregoing;

(vii) trade secrets, and all other confidential or proprietary information, know-how, clinical data, non-clinical data, pre-clinical data, in vitro data, inventions, processes, formulae and methodologies, excluding Patents (collectively, “Know-How”); and

(viii) all rights and remedies against past, present, and future infringement, misappropriation, or other violation thereof.

(57) “Intercompany Account” means any receivable, payable or loan between any member of the Alkermes Group, on the one hand, and any member of the Mural Group, on the other hand, except for any such receivable, payable or loan that arises pursuant to this Agreement or any Ancillary Agreement.

 

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(58) “Know-How” shall have the meaning set forth in Section 1.1(56)(vii).

(59) “Known Counsel” shall have the meaning set forth in Section 7.9.

(60) “Law” means any applicable U.S. or non-U.S. federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, income tax treaty, order, requirement or rule of law (including common law) or other binding directives promulgated, issued, entered into or taken by any Governmental Entity.

(61) “Leased Real Property” shall have the meaning set forth in Section 1.1(64)(xiv).

(62) “Liabilities” means any and all indebtedness, liabilities, costs, expenses, interest and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, known or unknown, reserved or unreserved, or determined or determinable, including those arising under any Law, Action, or in connection with any dispute, whether asserted or unasserted, or order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity and those arising under any Contract or any fines, damages or equitable relief which may be imposed and including all costs and expenses related thereto. Except as otherwise specifically set forth herein or in the Tax Matters Agreement, the rights and obligations of the Parties with respect to Taxes shall be governed by the Tax Matters Agreement and, therefore, Taxes shall not be treated as Liabilities governed by this Agreement.

(63) “Mural” shall have the meaning set forth in the Recitals.

(64) “Mural Assets” means the following, but in each case excluding the Excluded Assets:

(i) all interests in the capital stock of, or any other equity interests in, the members of the Mural Group held, directly or indirectly, by Alkermes immediately prior to the Distribution Effective Time (other than the capital stock of Mural US);

(ii) all Intellectual Property that is exclusively related to the Oncology Business, including the Intellectual Property identified on Schedule 1.1(64)(ii);

(iii) all Trademarks that are exclusively related to the Oncology Business (hereafter, “Mural Trademarks”), including the Trademarks identified on Schedule 1.1(64)(iii);

(iv) all inventory of Mural Product Candidates, including the materials, components, and packaging materials required to manufacture and/or package the corresponding Mural Product Candidates;

(v) any and all Assets that are expressly assigned by this Agreement or any Ancillary Agreement (or the Schedules hereto or thereto) as Assets which have been or are to be retained by, or Transferred to, any member of the Mural Group, including the Mural Cash Contribution expressly assigned to Mural US pursuant to Section 2.15;

 

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(vi) any and all Assets reflected on either (a) the Mural Balance Sheet (including accounts receivable outstanding as of the Distribution Date but excluding cash and cash equivalents, the allocation of which shall be governed by Section 2.15) or (b) the accounting records supporting such balance sheet, subject to any dispositions of any of such Assets subsequent to the date of the Mural Balance Sheet; provided that the amounts set forth on the Mural Balance Sheet with respect to any Assets shall not be treated as minimum amounts or limitations on the amount of such Assets that are included in the definition of Mural Assets pursuant to this clause (vi);

(vii) any and all Assets acquired by or for any member of the Mural Group subsequent to the date of the Mural Balance Sheet which, had they been so acquired on or before such date and owned as of such date, would have been reflected on the Mural Balance Sheet if prepared on a consistent basis, subject to any dispositions of any of such Assets subsequent to the date of the Mural Balance Sheet, it being understood that the Mural Balance Sheet shall be used to determine the types of, and methodologies used to determine, those Assets that are included in the definition of Mural Assets pursuant to this clause (vii);

(viii) all rights, interests and claims of either Party or any of its Subsidiaries as of the Distribution Effective Time to the Mural Product Candidates, including all rights and claims of either Party or any of its Subsidiaries as of the Distribution Effective Time to all compound, discovery, development, in vitro and preclinical data; clinical study data; reports and analyses; and product registrations and applications (which shall include all United States Food and Drug Administration and other similar regulatory approvals and licenses related to, and all related applications and other information submitted for the purposes of or prepared in connection with clinical research for, a Mural Product Candidate), to the extent related to the Mural Product Candidates;

(ix) all Contracts to which either Party or any member of its Group is a party or by which it or any member of its Group or any of their respective Assets is bound, in each case, as of immediately prior to the Distribution Effective Time and including all schedules and addendums, amendments, statements of work, work orders or similar agreements (including those that are expired) under such Contract, exclusively related to the Oncology Business and any rights or claims arising thereunder, including the Contracts listed on Schedule 1.1(64)(ix);

(x) the portion of any Shared Contract that relates to the Oncology Business;

(xi) all transferable licenses, permits, registrations, applications, approvals, designations (including orphan drug designations and fast track designations) and authorizations of either Party or any of the members of its Group as of immediately prior to the Distribution Effective Time which have been issued by any Governmental Entity and which relate exclusively to, or are used exclusively in, the Oncology Business or the Mural Assets, and any rights or claims arising thereunder, including those listed on Schedule 1.1(64)(xi);

(xii) all rights, claims, credits, causes of action or rights of set-off against Persons other than members of the Alkermes Group relating exclusively to the Oncology Business or the Mural Assets, including the right to sue for past infringement arising before, on or after the Distribution Effective Time;

 

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(xiii) to the extent in the possession or control of any member of the Alkermes Group or the Mural Group immediately prior to the Distribution Effective Time (and other than Intellectual Property), whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape, digitally or any other form, or stored on remote servers accessed from the internet, (A) all business records to the extent exclusively related to the Mural Assets or Mural Liabilities; (B) all of the separate financial and property Tax records of the members of the Mural Group that do not form part of the general ledger of any member of the Alkermes Group; (C) all other books, records, ledgers, files, documents, correspondence, lists, plats, drawings, and photographs, including product literature, equipment test records, advertising and promotional materials, distribution lists, customer lists, supplier lists, studies, reports, operating, production and other manuals, manufacturing and quality control records and procedures, research and development files, regulatory filings, submissions and correspondence and other regulatory and compliance files, records and documents, and accounting and business books (including the accounting records prepared in connection with the preparation of Mural’s financial information included in the Information Statement or any subsequent filings or financial periods through the Distribution Date), records, files, documentation and materials, in all cases to the extent exclusively related to the Oncology Business; (D) copies of any Alkermes templates and form documents used in the operation of the Oncology Business; and (E) the information listed on Schedule 1.1(64)(xiii) (collectively, the “Mural Records”); provided, however, that: (x) Alkermes shall be entitled to retain a copy of any and all Mural Records; (y) Alkermes shall be entitled to retain any materials in clauses (A) and (C) that are not reasonably practicable to identify and extract subject to the right of access pursuant to Section 7.3, as determined in Alkermes’ commercially reasonable discretion; and (z) Alkermes shall be entitled to redact any portion of the Mural Records to the extent related to any matter other than the Oncology Business; provided, however, that such retained materials shall be deemed Confidential Information of Mural and subject to the provisions of Section 7.7;

(xiv) the facilities and other real property listed or described on Schedule 1.1(64)(xiv) (the “Leased Real Property”);

(xv) all tangible equipment (including information technology, equipment and machinery), infrastructure, wires, supplies and other tangible property that is owned by, leased to or licensed to Alkermes or any of its Subsidiaries immediately prior to the Distribution Effective Time and is either (x) located at the Leased Real Property (except for such property set forth on Schedule 1.1(64)(xv) which shall be retained by the Alkermes Group) or (y) exclusively related to the Oncology Business;

(xvi) any and all other Assets that relate exclusively to or are used exclusively in the Oncology Business or exclusively related to a Mural Asset that are held by the Mural Group or the Alkermes Group immediately prior to the Distribution Effective Time; and

 

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(xvii) any and all other Assets that were inadvertently omitted or assigned that, had the Parties given specific consideration to such Assets as of the date of this Agreement, would have otherwise been classified as Mural Assets based on the principles set forth in this Section 1.1(64); provided, that no Asset shall be a Mural Asset solely as a result of this clause (xvii) unless a claim with respect thereto is made by Mural on or prior to the date that is the second anniversary of the Distribution Date. Notwithstanding the foregoing or anything to the contrary herein, “Mural Asset” shall not include any rights or interests in or to any Intellectual Property except to the extent set forth in the foregoing clauses of this Section 1.1(64).

(65) “Mural Balance Sheet” means the amounts set forth in the “Pro Forma” column of the unaudited pro forma combined balance sheet of Mural, including the notes thereto, as of June 30, 2023, as prepared in accordance with generally accepted accounting principles in the United States and Rule 11-02 of Regulation S-X, and included in the Information Statement.

(66) “Mural Cash Contribution” means the contribution of cash from Alkermes or its Subsidiaries to Mural US, as set forth in the Plan of Reorganization.

(67) “Mural Claim” shall have the meaning set forth in Section 6.2.

(68) “Mural Designees” means any and all entities (including corporations, general or limited partnerships, trusts, joint ventures, unincorporated organizations, limited liability entities or other entities) designated by Mural and that will be members of the Mural Group as of immediately prior to the Distribution Effective Time.

(69) “Mural Group” means (a) Mural and any entity that is a Subsidiary of Mural or will be a Subsidiary of Mural immediately following the Distribution Effective Time and (b) on and after the Distribution Effective Time, Mural and any entity that is a Subsidiary of Mural. For clarity, members of the Mural Group party to any Conveyancing and Assumption Instrument shall be a Mural Designee for purposes of this Agreement.

(70) “Mural Indemnitees” means the members of the Mural Group and their respective past, present and future directors, officers, employees and agents, in each case in their respective capacities as such, each of the heirs, executors, administrators, successors and assigns of any of the foregoing.

(71) “Mural Liabilities” means, without duplication, but in each case excluding the Excluded Liabilities:

(i) any and all Liabilities to the extent relating to, arising out of or resulting from the conduct of the Oncology Business, as conducted at any time, including prior to, at or after the Distribution Effective Time (including any such Liability to the extent relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person’s authority) of the Mural Group or the Alkermes Group);

(ii) any and all Liabilities to the extent relating to, arising out of or resulting from the conduct of any business by any member of the Mural Group at any time after the Distribution Effective Time (including any such Liability to the extent relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person’s authority) of the Mural Group);

 

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(iii) any and all Liabilities to the extent relating to, arising out of or resulting from any Mural Asset, whether arising before, on or after the Distribution Effective Time;

(iv) any and all Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement (or the Schedules hereto or thereto) as Liabilities to be Assumed or retired or satisfied by any member of the Mural Group;

(v) any and all Liabilities reflected on the Mural Balance Sheet or the accounting records supporting such balance sheet and any and all Liabilities incurred by or for Mural or any member of the Mural Group or Alkermes Group subsequent to the date of the Mural Balance Sheet which, had they been so incurred on or before such date, would have been reflected on the Mural Balance Sheet if prepared on a consistent basis, subject to any discharge of any of such Liabilities subsequent to the date of the Mural Balance Sheet; it being understood that (A) the Mural Balance Sheet shall be used to determine the types of, and methodologies used to determine, those Liabilities that are included in the definition of Mural Liabilities pursuant to this clause (v); and (B) the amounts set forth on the Mural Balance Sheet with respect to any Liabilities shall not be treated as minimum amounts or limitations on the amount of such Liabilities that are included in the definition of Mural Liabilities pursuant to this clause (v);

(vi) any and all Liabilities to the extent relating to, arising out of or resulting from the development of Mural Product Candidates prior to the Distribution Effective Time by any member of the Mural Group or the Alkermes Group;

(vii) the Liabilities listed or described on Schedule 1.1(71)(vii);

(viii) any and all Liabilities relating to, arising out of or resulting from 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 statement therein not misleading, with respect to all information contained in the Distribution Disclosure Documents, except to the extent specifically enumerated in clause (ii) of the definition of “Excluded Liabilities”;

(ix) any and all Liabilities arising directly or indirectly from Actions to the extent relating to the Mural Assets, the Oncology Business or any Mural Liability, including in respect of any alleged tort, breach of Contract, violation or noncompliance with Law or any licenses, permits, registrations, approvals and authorizations, whether arising prior to, on or after the Distribution Date; and

(x) any and all other Liabilities that are held by the Mural Group or the Alkermes Group immediately prior to the Distribution Effective Time that were inadvertently omitted or assigned that, had the Parties given specific consideration to such Liabilities as of the date of this Agreement, would have otherwise been classified as a Mural Liability based on the principles set forth in this Section 1.1(71); provided, that no Liability shall be a Mural Liability solely as a result of this clause (x) unless a claim with respect thereto is made by Alkermes or Mural on or prior to the date that is the second anniversary of the Distribution Date.

 

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(72) “Mural Ordinary Shares” means the ordinary shares of $0.01 par value per share of Mural.

(73) “Mural Product Candidates” means the products and product candidates described on Schedule 1.1(73).

(74) “Mural Records” shall have the meaning set forth in Section 1.1(64)(xiii).

(75) “Mural Released Liabilities” shall have the meaning set forth in Section 6.1(a)(ii).

(76) “Mural Trademarks” shall have the meaning set forth in Section 1.1(64)(iii).

(77) “Mural Transition Services Agreement” means the Transition Services Agreement to be entered into by and between Alkermes, Inc. and Mural US under which Mural US will provide certain services to Alkermes, Inc.

(78) “Mural US” shall have the meaning set forth in the Recitals.

(79) “Mural US Common Stock” means the common stock, $0.01 par value per share, of Mural US.

(80) “Nasdaq” means the Nasdaq Stock Market LLC.

(81) “Neuroscience Business” means those businesses, operations and activities of Alkermes or any of its Subsidiaries (whether or not such businesses, operations or activities are or have been terminated, divested or discontinued) other than the Oncology Business and, after the Distribution Effective Time, those entities or businesses acquired or established by or for any member of the Alkermes Group.

(82) “Oncology Business” means the business, operations and activities conducted at any time prior to the Distribution Effective Time by or on behalf of any Party or any of its Subsidiaries to the extent relating to, arising out of, or resulting from the Mural Product Candidates (including the discovery, research, and development of such Mural Product Candidates worldwide).

(83) “Patents” shall have the meaning set forth in Section 1.1(56)(ii).

(84) “Person” means an individual, a general or limited partnership, a corporation, a trust, a joint venture, an unincorporated organization, a limited liability entity, any other entity and any Governmental Entity.

(85) “Plan of Reorganization” means the plan and structure set forth on Schedule 1.1(85), as such plan and structure shall be amended, updated or supplemented from time to time.

 

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(86) “Policies” means insurance policies and insurance contracts of any kind (other than life and benefits policies or contracts), including primary, excess and umbrella policies, commercial general liability policies, fiduciary liability, directors and officers liability, product liability, automobile, property and casualty, workers’ compensation and employee dishonesty insurance policies and bonds, together with the rights, benefits and privileges thereunder.

(87) “Prime Rate” means the “prime rate” as published in The Wall Street Journal, Eastern Edition.

(88) “Privilege” means all privileges, immunities or other protections from disclosure which may be asserted under applicable Law, including attorney-client privilege, business strategy privilege, joint defense privilege, common interest privilege and protection under the work-product doctrine.

(89) “Privileged Information” means information subject to Privilege.

(90) “Record Date” means November 6, 2023, as determined by the Board as the record date for determining the holders of record of Alkermes Ordinary Shares entitled to receive Mural Ordinary Shares in the Distribution.

(91) “Record Holders” means the holders of record of Alkermes Ordinary Shares (other than, for the avoidance of doubt, Alkermes) as of the Record Date.

(92) “Representatives” means with respect to any Person, any of such Person’s directors, officers, employees, agents, consultants, advisors, accountants, attorneys or other representatives.

(93) “Retained Names and Marks” shall have the meaning set forth in Section 5.3.

(94) “Securities Act” means the Securities Act of 1933.

(95) “Security Interest” means any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-entry, covenant, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever, excluding restrictions on transfer under securities Laws.

(96) “Separation” shall have the meaning set forth in the Recitals.

(97) “Shared Contract” means the Contracts listed or described on Schedule 1.1(97).

(98) “Shared Privileged Information” shall have the meaning set forth in Section 7.8(b).

(99) “Subsidiary” means with respect to any Person (i) an entity, fifty percent (50%) or more of the voting or capital stock of which is, as of the time in question, directly or indirectly owned by such Person and (ii) any other Person in which such Person, directly or indirectly, owns fifty percent (50%) or more of the equity or economic interest thereof or has the power to elect or direct the election of fifty percent (50%) or more of the members of the governing body of such Person.

 

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(100) “Tax” or “Taxes” has the meaning set forth in the Tax Matters Agreement.

(101) “Tax Contest” has the meaning as set forth in the Tax Matters Agreement.

(102) “Tax Matters Agreement” means the Tax Matters Agreement to be entered into by and between Alkermes and Mural.

(103) “Tax Returns” has the meaning set forth in the Tax Matters Agreement.

(104) “Third Party” means any Person other than the Parties or any of their respective Subsidiaries.

(105) “Third Party Agreements” means any Contract between or among a Party (or any member of its Group) and any Third Party (it being understood that to the extent that the rights and obligations of the Parties and the members of their respective Groups under any such Contracts constitute Mural Assets or Mural Liabilities, or Alkermes Retained Assets or Alkermes Retained Liabilities, such Contracts shall be assigned or retained pursuant to Article II).

(106) “Third Party Claim” shall have the meaning set forth in Section 6.4(b).

(107) “Third Party Proceeds” shall have the meaning set forth in Section 6.5(a).

(108) “Trademarks” shall have the meaning set forth in Section 1.1(56)(i).

(109) “Transaction Agreement” means any of this Agreement, the Employee Matters Agreement, the IP License Agreement, the Tax Matters Agreement and the Transition Services Agreements.

(110) “Transfer” has the meaning set forth in Section 2.2(a)(i).

(111) “Transition Services Agreements” means, collectively, the Mural Transition Services Agreement and the Alkermes Transition Services Agreement, and each, individually, a “Transition Services Agreement.”

Section 1.2 References; Interpretation.

(1) References in this Agreement to any gender include references to all genders, and terms defined in the singular shall have a comparable meaning when used in the plural and vice versa.

(2) Unless the context otherwise requires, the words “include”, “includes” and “including” when used in this Agreement shall be deemed to be followed by the phrase “without limitation.”

 

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(3) Unless the context otherwise requires, references in this Agreement to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement, as the same may be amended as provided herein.

(4) Unless the context otherwise requires, the words “hereof”, “hereby,” “herein” and “hereunder” and words of similar meaning when used in this Agreement refer to this Agreement in its entirety and not to any particular Article, Section or provision of this Agreement.

(5) The term “extent” in the phrase “to the extent” when used in this Agreement refers to the degree to which a subject or other thing extends, and such phrase does not mean simply “if.”

(6) When a reference is made to an agreement, instrument or other document, such reference shall include any exhibit, schedule or annex to such agreement, instrument or other document.

(7) References to a document being in “agreed form” shall mean that it is in a form agreed by the Parties and signed for purpose of identification by or on behalf of the Parties, with such alterations as may be agreed between the Parties from time to time.

(8) Unless the context otherwise requires, where either Party’s approval or consent is required hereunder, such Party’s approval or consent shall be a prior consent, shall be in writing (including email) and shall not be unreasonably denied, delayed or conditioned.

(9) The word “will” when used in this Agreement shall be construed to have the same meaning as the word “shall.”

(10) The words “written request” when used in this Agreement shall include email.

(11) Reference in this Agreement to any time shall be to Eastern time unless otherwise expressly provided herein.

(12) Unless the context requires otherwise, references in this Agreement to “Alkermes” shall also be deemed to refer to the applicable member of the Alkermes Group, references to “Mural” shall also be deemed to refer to the applicable member of the Mural Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by Alkermes or Mural shall be deemed to require Alkermes or Mural, as the case may be, to cause the applicable members of the Alkermes Group or the Mural Group, respectively, to take, or refrain from taking, any such action.

(13) The word “or” shall not be exclusive.

(14) References to any “statute” or “regulation” are to such statute or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, include any rules and regulations promulgated under such statute) and to any “section of any statute or regulation” include any successor to such section. References to any Governmental Entity include any successor to such Governmental Entity, and references to any Affiliate include any successor to such Affiliate.

 

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(15) Whenever the last day for the exercise of any right or the discharge of any duty under this Agreement falls on other than a Business Day, the Party having such right or duty shall have until the next Business Day to exercise such right or discharge such duty.

(16) Unless otherwise indicated, the word “day” shall be interpreted as a calendar day.

ARTICLE II

THE SEPARATION

Section 2.1 General. Pursuant and subject to the terms and conditions of this Agreement, the Parties shall use, and shall cause their respective Subsidiaries to use, commercially reasonable efforts to consummate the transactions contemplated hereby, a portion of which may have already been implemented prior to the date hereof.

Section 2.2 Transfer of Assets; Assumption of Liabilities.

(a) In accordance with the Plan of Reorganization and to the extent not previously effected pursuant to the steps of the Plan of Reorganization that have been completed prior to the date of this Agreement and unless otherwise provided in this Agreement or in any Ancillary Agreement:

(i) Alkermes shall, and shall cause its Subsidiaries to, contribute, assign, transfer, convey and deliver (“Transfer”) to Mural US or its designee, and Mural US or its designee shall assume and accept from Alkermes and its Subsidiaries, all of their direct or indirect right, title and interest in, to and under all Mural Assets; and

(ii) Mural US shall, and shall cause its designees to, Transfer to Alkermes, and Alkermes shall assume and accept from Mural US or its designees, all of Mural US’ or its designee’s direct or indirect right, title and interest in, to and under all Alkermes Retained Assets held by Mural US or a member of the Mural Group.

(iii) Without limiting the obligations of either Party under Article VI, effective at and from and after the Distribution Effective Time, (i) Alkermes hereby accepts, assumes (or, as applicable, retains) and shall perform, discharge and fulfill, in each case directly or indirectly and in accordance with their respective terms (“Assume”; and “Assumption” shall have the correlative meaning), all of the Alkermes Retained Liabilities and (ii) Mural US hereby Assumes, directly or indirectly, all of the Mural Liabilities, in each case regardless of (A) when or where such Liabilities arose or arise, (B) where or against whom such Liabilities are asserted or determined, (C) whether such Liabilities arise from or are alleged to arise from negligence, gross negligence, recklessness, violation of law, willful misconduct, bad faith, fraud or misrepresentation by any member of the Alkermes Group or the Mural Group, as the case may be, or any of their past or present respective directors, officers, employees, or agents, (D) which entity is named in any action associated with any Liability and (E) whether the facts on which such Liabilities are based occurred prior to, on or after the date hereof.

 

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(b) The Parties shall use their respective commercially reasonable efforts to obtain the Consents required to Transfer any Contracts, licenses, permits, authorizations and other Assets as contemplated by this Agreement. Notwithstanding anything herein to the contrary, no Contract or other Asset shall be Transferred if it would violate applicable Law or, in the case of a Contract, the rights of any Third Party to such Contract; provided, that Section 2.9, to the extent provided therein, shall apply to such Asset or Contract.

(c) It is understood and agreed by the Parties that certain of the Transfers or Assumptions referenced in Section 2.2(a) have heretofore occurred and, as a result, no additional Transfers or Assumptions by any member of the Alkermes Group or Mural Group, as applicable, shall be deemed to occur upon the execution of this Agreement with respect thereto. Moreover, to the extent that any member of the Alkermes Group or Mural Group, as applicable, is liable for any Alkermes Retained Liability or Mural Liability, respectively, by operation of Law immediately following any Transfer in accordance with this Agreement or any Conveyancing and Assumption Instruments, there shall be no need for any other member of the Alkermes Group or Mural Group, as applicable, to Assume such Liability in connection with the operation of Section 2.2(a) and, accordingly, no other member of such Group shall Assume such Liability in connection with Section 2.2(a).

(d) In connection with, and in furtherance of, the implementation of the Plan of Reorganization, the Transfers of Assets and the Assumptions of Liabilities contemplated by this Agreement, the Parties shall execute or cause to be executed, on or after the date hereof by the appropriate entities to the extent not executed prior to the date hereof, any Conveyancing and Assumption Instruments necessary to evidence the valid Transfer to the applicable Party or member of such Party’s Group of all right, title and interest in and to its accepted Assets and the valid and effective Assumption by the applicable Party or member of such Party’s Group of its respective Liabilities for Transfers and Assumptions to be effected pursuant to Delaware Law, Massachusetts Law or the Laws of one of the other states of the United States or, if not appropriate for a given Transfer or Assumption, and for Transfers or Assumptions to be effected pursuant to non-U.S. Laws, in such form as the Parties shall reasonably agree.

(e) Alkermes hereby waives compliance by itself and each and every member of the Alkermes Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Alkermes Retained Assets to Alkermes or any member of the Alkermes Group.

(f) Mural hereby waives compliance by itself and each and every member of the Mural Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Mural Assets to Mural US or any member of the Mural Group.

(g) Notwithstanding anything in this Section 2.2 to the contrary, no Alkermes Group member shall be required to undertake any action or arrangement contemplated by this Section 2.2 that would result in, or could reasonably be expected to result in, Tax treatment that is inconsistent with the conclusions set forth in the private letter ruling or opinion referenced in Section 4.5(e).

 

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Section 2.3 Treatment of Shared Contracts.

(a) Unless the Parties otherwise agree or the benefits of any Contract described in this Section 2.3 are expressly conveyed to the applicable Party pursuant to an Ancillary Agreement, in the case of a Shared Contract, the Parties shall use commercially reasonable efforts to cause such Shared Contract to be: (i) assigned in relevant part to a member of the Mural Group (or to a member of the Alkermes Group if the contracting party is a member of the Mural Group) if so assignable; (ii) appropriately amended, prior to, on or after the Distribution Effective Time; or (iii) replaced or otherwise addressed with suitable arrangements, in each case so that each Party or its respective Subsidiaries shall be entitled to the rights and benefits and shall assume the related portion of any obligations and Liabilities inuring to their respective businesses; provided, however, that in no event shall either Party or its respective Subsidiaries be required to assign or amend any Shared Contract in its entirety or to assign a portion of any Shared Contract that is not assignable or cannot be amended by its terms (including any terms imposing Consents or conditions on an assignment where such Consents or conditions have not been obtained or fulfilled). If any Shared Contract cannot be so partially assigned, or cannot be amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract and such Shared Contract is not replaced or otherwise addressed with suitable arrangements, Alkermes and Mural shall, and shall cause each member of their respective Groups to, take such other reasonable and permissible actions to cause (with the costs and expenses of any such actions following the Separation to be shared equally between the Parties): (A) the Assets associated with that portion of each Shared Contract that relates to the Oncology Business to be enjoyed by a member of the Mural Group; (B) the Liabilities associated with that portion of each Shared Contract that relates to the Oncology Business to be borne by a member of the Mural Group; (C) the Assets associated with that portion of each Shared Contract that relates to the Neuroscience Business to be enjoyed by a member of the Alkermes Group; and (D) the Liabilities associated with that portion of each Shared Contract that relates to the Neuroscience Business to be borne by a member of the Alkermes Group.

(b) Except for payments required in accordance with the performance of the applicable Shared Contract, nothing in this Section 2.3 shall obligate either Party or any member of its Group to make any payment, incur any Liability or offer or grant any accommodation for the benefit of the other Party or any member of the other Party’s Group, in each case, in order to effect any transaction (other than the pass-through of rewards and burdens of the applicable portions of the Shared Contracts in accordance with this Section 2.3) (except to the extent advanced, assumed or agreed in advance to be reimbursed by the other Party or any member of the other Party’s Group).

(c) Each of Alkermes and Mural shall, and shall cause the members of its Group to, (A) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as Assets owned by, and/or Liabilities of, as applicable, such Party as of the Distribution Effective Time and (B) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable Tax Law or good faith resolution of a Tax Contest).

 

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Section 2.4 Intellectual Property Licenses.

(a) License Grants.

(i) Subject to the terms and conditions of this Agreement, Alkermes hereby grants to Mural and its Affiliates a perpetual, irrevocable, royalty-free, non-exclusive and worldwide (sub)license under all Intellectual Property Controlled by Alkermes as of the Separation Date to make, have made, use, offer for sale, sell and import products comprising the Mural Product Candidates.

(ii) Subject to the terms and conditions of this Agreement, Mural hereby grants to Alkermes and its Affiliates a perpetual, irrevocable, royalty-free, non-exclusive and worldwide (sub)license under the Intellectual Property within the Mural Assets as of the Separation Date to make, have made, use, offer for sale, sell and import products (excluding products comprising the Mural Product Candidates) for any uses other than the diagnosis, prevention or treatment of cancer in humans and animals.

(iii) The foregoing (sub)license grants automatically extend, without any further action by a Party, to each person and entity that is an Affiliate of such Party as of the Effective Date or becomes an Affiliate of such Party thereafter, but only for so long as such person or entity remains an Affiliate of such Party, and the other Party shall be in direct privity under this Agreement with any such (sub)licensed Affiliate under this Agreement.

(b) Alkermes In-Licenses. Mural acknowledges that the rights granted herein to Mural under the Intellectual Property Controlled by Alkermes pursuant to a license, sublicense or similar agreement with a Third Party (each, an “Alkermes In-License”) are subject to the terms and conditions set forth in such Alkermes In-Licenses. Mural covenants not to breach any terms or conditions of any Alkermes In-Licenses pertaining to sublicensees thereunder and to perform and take such actions as may be required to allow Alkermes to comply with its obligations thereunder, including obligations relating to sublicensing, patent matters, confidentiality, reporting, audit rights and diligence. Mural further agrees to reimburse Alkermes (or to pay directly to the other party under the applicable Alkermes In-License, if Alkermes and such other party so agree) all amounts that become due and payable under the Alkermes In-Licenses on account of Mural’s exercise of the rights under the Alkermes In-Licenses that are sublicensed to Mural hereunder.

(c) Sublicense Rights. Each Party (but not its Affiliates) shall have the right to grant sublicenses to Third Parties under the license granted to it pursuant to Section 2.4(a) above. Sublicensees hereunder may grant further sublicenses. The sublicensing Party shall remain responsible for the compliance by each of its Affiliates and all sublicensees (whether direct or indirect) with all relevant restrictions and limitations and any other applicable terms and conditions in this Agreement.

(d) No Other Rights. Nothing in this Agreement shall be interpreted to grant either Party any rights under any intellectual property rights of the other Party that are not expressly granted herein, whether by implication, estoppel or otherwise.

 

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(e) License in Bankruptcy. All (sub)licenses granted under this Agreement by either Party to the other Party shall be deemed to be, for the purpose of Section 365(n) of the United States Bankruptcy Code, as amended (the “Bankruptcy Code”), licenses of rights to “intellectual property” as defined under Section 101(35A) of the Bankruptcy Code. The Parties agree that either Party, as (sub)licensee of such intellectual property rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code.

Section 2.5 Intercompany Accounts. Each Intercompany Account which exists and is reflected immediately prior to the Distribution Effective Time in any general ledger account or other records of Alkermes, Mural or any of their respective Affiliates, shall be: (a) closed as of the Distribution Effective Time and satisfied or settled within thirty (30) days following the Distribution Date by the relevant members of the Alkermes Group and the Mural Group by (i) one or a related series of distributions of or contributions to capital, (ii) payment by the relevant obligor to the relevant obligee or (iii) dividends or a combination of the foregoing, in each case as determined by Alkermes or (b) otherwise terminated effective as of the Distribution Effective Time. The parties hereby agree that the Intercompany Accounts shall be settled, as applicable, as described on Schedule 2.5. For the avoidance of doubt, the obligation to satisfy, settle or terminate Intercompany Accounts shall survive the Distribution Effective Time.

Section 2.6 Payments Prior to the Distribution Effective Time. With respect to any outstanding checks issued or payments initiated by Alkermes, Mural, or any of the members of their respective Groups prior to the Distribution Effective Time, such outstanding checks and payments shall be honored following the Distribution Effective Time by the Person or Group owning the account on which the check is drawn or from which the payment was initiated, respectively.

Section 2.7 Payments Following the Distribution Effective Time. As between Alkermes and Mural (and the members of their respective Groups), all payments made and reimbursements or other payments received after the Distribution Effective Time by either Party (or member of its Group) that relate to a business, Asset or Liability of the other Party (or member of its Group), shall be held by such Party in trust for the use and benefit of the Party entitled thereto and, promptly following receipt by such Party of any such payment or reimbursement, such Party shall pay over, or shall cause the applicable member of its Group to pay over, to the other Party the amount of such payment or reimbursement without right of set-off.

Section 2.8 Limitation of Liability. Except as provided in this Section 2.8 and in Article VI, neither Alkermes nor Mural nor any member of their respective Groups shall have any Liability to the other or any member of the other Party’s Group based upon, arising out of or resulting from any agreement, arrangement, course of dealing or understanding existing on or prior to the Distribution Effective Time other than pursuant to (i) this Agreement or any Ancillary Agreement, (ii) any Contract or arrangement listed or described on Schedule 2.8, (iii) any Third Party Agreement, or (iv) any other Contract or agreement entered into in connection with the consummation of the transactions contemplated by the Transaction Agreements, and any such Liability, whether or not in writing, that is not reflected in any of the foregoing, is hereby irrevocably cancelled, released and waived effective as of the Distribution Effective Time. No such terminated agreement, arrangement, course of dealing or understanding (including any provision thereof that purports to survive termination) shall be of any further force or effect after the Distribution Effective Time.

 

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Section 2.9 Transfers Not Effected at or Prior to the Distribution Effective Time; Transfers Deemed Effective as of the Distribution Effective Time.

(a) If and to the extent that the valid, complete and perfected Transfer to the Mural Group of any Mural Asset or Assumption by the Mural Group of any Mural Liability, in each case contemplated hereby, would be a violation of applicable Law or require any Consent in connection with the Separation that has not been obtained or made by the Distribution Effective Time then, unless the Parties mutually shall otherwise agree, the Transfer to the Mural Group of such Mural Assets or the Assumption by the Mural Group of such Mural Liabilities, as the case may be, shall be automatically deemed deferred and any such purported Transfer or Assumption shall be null and void until such time as all legal impediments are removed or such Consent has been obtained or made. Notwithstanding the foregoing, any such Mural Asset or Mural Liability shall continue to constitute a Mural Asset or Mural Liability, as applicable, for all other purposes of this Agreement.

(b) If and to the extent that the valid, complete and perfected Transfer to the Alkermes Group of any Alkermes Retained Asset or Assumption by the Alkermes Group of any Alkermes Retained Liability, in each case contemplated hereby, would be a violation of applicable Law or require any Consent in connection with the Separation that has not been obtained or made by the Distribution Effective Time then, unless the Parties mutually shall otherwise agree, the Transfer to the Alkermes Group of such Alkermes Retained Assets or the Assumption by the Alkermes Group of such Alkermes Retained Liabilities, as the case may be, shall be automatically deemed deferred and any such purported Transfer or Assumption shall be null and void until such time as all legal impediments are removed or such Consent has been obtained or made. Notwithstanding the foregoing, any such Alkermes Retained Assets or Alkermes Retained Liabilities shall continue to constitute Alkermes Retained Assets and Alkermes Retained Liabilities, as applicable, for all other purposes of this Agreement.

(c) With respect to Assets and Liabilities described in Section 2.9(a) and Section 2.9(b) or described on Schedule 2.9(d), taking into account any applicable restrictions or considerations relating to the contemplated Tax treatment of the transactions contemplated hereby, each of Alkermes and Mural shall, and shall cause the members of its respective Group to, (i) treat for all Tax purposes (A) the deferred Assets as assets having been Transferred to and owned by the Person entitled to such Assets not later than the Distribution Effective Time and (B) the deferred Liabilities as having been Assumed by the Person intended to be subject to such Liabilities not later than the Distribution Effective Time and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable Tax Law or good faith resolution of a Tax Contest).

(d) In the event that any Transfer of Assets or Assumption of Liabilities intended to be effected hereunder has not been consummated at or prior to the Distribution Effective Time, whether as a result of the provisions of Section 2.9(a) or Section 2.9(b), an agreement between the Parties and their respective Group members to delay such Transfer of Assets or Assumption of Liabilities as further described on Schedule 2.9(d), the inadvertent transfer or omission of an Asset or Liability as contemplated by the definition of “Alkermes Retained Asset,” “Alkermes Retained Liability,” “Mural Asset” or “Mural Liability” or for any other reason (other than with respect to Shared Contracts, which shall be governed solely by Section 2.3):

 

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(i) unless the Parties shall otherwise agree, the Parties and their respective Group members shall cooperate and use commercially reasonable efforts to seek to obtain, in accordance with applicable Law, any necessary Consents for the Transfer of all Assets and the Assumption of all Liabilities contemplated to be Transferred or Assumed, as applicable, pursuant to this Article II to the fullest extent permitted by applicable Law; provided, however, that, except to the extent expressly provided in this Agreement or any of the Ancillary Agreements or as otherwise agreed between Alkermes and Mural and described on Schedule 2.9(d), neither Alkermes nor Mural shall be obligated to make any payment, incur any Liability or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in any underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Third Party to obtain or make such Consent; and

(ii) except as described on Schedule 2.9(d), (A) the Party (or the applicable member of its Group) retaining such Asset shall thereafter hold (or shall cause such member in its Group to hold) such Asset in trust for the use and benefit of the Party entitled thereto (at the expense of the Party entitled thereto) and shall be treated as holding it as nominee for the Party entitled thereto, and (B) the Party intended to Assume such Liability shall, or shall cause the applicable member of its Group to, pay or reimburse the Party retaining such Liability for all amounts paid or incurred in connection with the retention of such Liability. To the extent the foregoing applies to any Contracts to be assigned for which any necessary Consents are not received prior to the Distribution Effective Time, the treatment of such Contracts shall, for the avoidance of doubt, be subject to Section 2.12 and Section 2.13, to the extent applicable. In addition, the Party (or the applicable member of its Group) retaining such Asset or Liability shall (or shall cause such member in its Group to) treat, insofar as reasonably possible and to the extent permitted by applicable Law, such Asset or 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 which such Asset is to be Transferred or by the Party Assuming such Liability in order to place such Party, insofar as reasonably possible and to the extent permitted by applicable Law, in the same position as if such Asset or Liability had been Transferred or Assumed as contemplated hereby, and so that all the benefits and burdens relating to such Asset or Liability, including possession, use, risk of loss, potential for income and gain, and dominion, control and command over such Asset or Liability, are to inure from and after the Distribution Effective Time to the applicable member or members of the Alkermes Group or the Mural Group entitled to the receipt of such Asset or required to Assume such Liability. In furtherance of the foregoing, the Parties agree that, as of the Distribution Effective Time, each Party shall be deemed to have acquired complete and sole beneficial ownership over all such Assets, together with all rights, powers and privileges incident thereto, and shall be deemed to have Assumed in accordance with the terms of this Agreement all such Liabilities, and all duties, obligations and responsibilities incident thereto, which such Party is entitled to acquire or required to Assume pursuant to the terms of the Transaction Agreements.

 

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(e) If and when the Consents or conditions, the absence or non-satisfaction of which caused the deferral of Transfer of any Asset or deferral of the Assumption of any Liability pursuant to Section 2.9(a) or Section 2.9(b), are obtained or satisfied, or, if and when the inadvertent transfer or omission of an Asset or Liability is discovered by the Parties or any other impediment (legal or otherwise) that caused the Parties to delay the Transfer of any Asset or the Assumption of any Liability has been remedied, the Transfer or Assumption of the applicable Asset or Liability shall be promptly effected without further consideration in accordance with and subject to the terms of this Agreement (including Section 2.2) or the applicable Ancillary Agreement, and shall, to the extent possible without the imposition of any undue cost on any Party, be deemed to have become effective as of the Distribution Effective Time.

(f) The Party (or the applicable member of its Group) retaining any Asset or Liability due to the deferral of the Transfer of such Asset or the deferral of the Assumption of such Liability pursuant to Section 2.9(a) or Section 2.9(b) or otherwise shall (i) not be obligated, in connection with the foregoing, to expend any money unless the necessary funds are advanced, assumed, or agreed in advance to be reimbursed by the Party (or the applicable member of its Group) entitled to such Asset or the Person intended to be subject to such Liability, other than reasonable attorneys’ fees and recording or similar or other incidental fees, all of which shall be promptly reimbursed by the Party (or the applicable member of its Group) entitled to such Asset or the Person intended to be subject to such Liability and (ii) be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken (or not taken) at the written direction of the other Party (or the applicable member of its Group) in connection with and relating to such retained Asset or Liability, as the case may be.

Section 2.10 Release of Guarantees. In addition to and without limiting the actions specifically provided for elsewhere in this Agreement and subject to the limitations expressly set forth in this Agreement:

(a) On or prior to the Distribution Effective Time, each of Alkermes and Mural shall, with the reasonable cooperation of the other Party and the applicable member(s) of such other Party’s Group, use its reasonable best efforts to (i) have any member(s) of the Mural Group removed as guarantor of or obligor for any Alkermes Retained Liability to the extent that they relate to Alkermes Retained Liabilities, including the removal of any Security Interest on or in any Mural Asset that may serve as collateral or security for any such Alkermes Retained Liability; and (ii) have any member(s) of the Alkermes Group removed as guarantor of or obligor for any Mural Liability to the extent that they relate to Mural Liabilities, including the removal of any Security Interest on or in any Alkermes Retained Asset that may serve as collateral or security for any such Mural Liability.

(b) To the extent required to obtain a release from a guarantee of:

(i) any member of the Mural Group, Alkermes shall execute a guarantee agreement in the form of the existing guarantee or such other form as is agreed to by the relevant parties to such guarantee agreement, which agreement shall include the removal of any Security Interest on or in any Mural Asset that may serve as collateral or security for any such Mural Liability, except to the extent that such existing guarantee contains representations, covenants or other terms or provisions either (A) with which Alkermes would be reasonably unable to comply or (B) which Alkermes would not reasonably be able to avoid breaching; and

 

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(ii) any member of the Alkermes Group, Mural shall execute a guarantee agreement in the form of the existing guarantee or such other form as is agreed to by the relevant parties to such guarantee agreement, which agreement shall include the removal of any Security Interest on or in any Alkermes Retained Asset that may serve as collateral or security for any such Alkermes Retained Liability, except to the extent that such existing guarantee contains representations, covenants or other terms or provisions either (A) with which Mural would be reasonably unable to comply or (B) which Mural would not reasonably be able to avoid breaching.

(c) If Alkermes or Mural is unable to obtain, or to cause to be obtained, any such required removal or release as set forth in clauses (a) and (b) of this Section 2.10, (i) the Party or the relevant member of its Group that has assumed the Liability with respect to such guarantee shall indemnify, defend and hold harmless the guarantor or obligor against or from any Liability arising from or relating thereto in accordance with the provisions of Article VI and shall, as agent or subcontractor for such guarantor or obligor, pay, perform and discharge fully all the obligations or other Liabilities of such guarantor or obligor thereunder; and (ii) each of Alkermes and Mural, on behalf of itself and the other members of its Group, agree not to renew or extend the term of, increase any obligations under, or transfer to a Third Party, any loan, guarantee, lease, contract or other obligation for which the other Party or a member of its Group is or may be liable unless all obligations of such other Party and the members of such other Party’s Group with respect thereto are thereupon terminated by documentation satisfactory in form and substance to such other Party, or unless such other Party agrees in writing to such renewal or extension of the term of, increase in obligations under, or transfer to a Third Party of, such loan, guarantee, lease, contract or other obligation.

Section 2.11 Further Assurances.

(a) In addition to and without limiting the actions specifically provided for elsewhere in this Agreement and subject to the limitations expressly set forth in this Agreement, including Section 2.9, each of the Parties shall cooperate with each other and shall use (and shall cause its respective Subsidiaries to use) commercially reasonable efforts, from and after the Distribution Effective Time, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary on its part under applicable Law or contractual obligations to consummate and make effective the transactions contemplated by this Agreement and the Ancillary Agreements as promptly as reasonably practicable.

(b) Without limiting the foregoing, from and after the Distribution Effective Time:

(i) each Party shall cooperate with the other Party to execute and deliver, and use commercially reasonable efforts to cause to be executed and delivered, all instruments, including instruments of Transfer or title, and to make all filings with, and to obtain all Consents, and to take or cause to be taken all such other actions as such Party may reasonably be requested to take by any other Party from time to time, as promptly as reasonably practicable, consistent with the terms of this Agreement and the Ancillary Agreements, in order to effectuate the provisions and purposes of this Agreement and the Ancillary Agreements and the Transfers of the applicable Assets and the assignment and Assumption of the applicable Liabilities and the other transactions contemplated hereby and thereby; and

 

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(ii) in the event that any Party (or member of such Party’s Group) receives any Assets (including the receipt of payments made pursuant to Contracts and proceeds from accounts receivable with respect to such Asset) or is liable for any Liability that is otherwise assigned to any Person that is a member of the other Group pursuant to this Agreement or the Ancillary Agreements, such Party agrees to promptly Transfer, or cause to be Transferred, without further consideration such Asset or Liability to the other Party so entitled thereto (or to a member of such other Party’s Group as designated by such other Party) and, prior to any such Transfer, such Asset or Liability, as the case may be, shall be held in accordance with the provisions of Section 2.9; provided that the provisions of this Section 2.11(b)(ii) are not intended to, and shall not, be deemed to constitute an authorization by any Party to permit the other to accept service of process on its behalf and no Party is or shall be deemed to be the agent of any other Party for service of process purposes.

(c) From and after the Distribution Effective Time, with respect to any Action where any Party hereto is a defendant, when and if requested by such Party, the other Party shall use commercially reasonable efforts to petition the applicable court to remove the requesting Party as a defendant to the extent that such Action relates solely to Assets or Liabilities that the other Party (or any member of such other Party’s Group) has been assigned pursuant to this Article II, and the other Party shall cooperate and assist in any required communication with any plaintiff or other related Third Party.

Section 2.12 Novation of Alkermes Retained Liabilities; Indemnification.

(a) Other than with respect to Shared Contracts, which shall be governed solely by Section 2.3, each of Alkermes and Mural, at the request of the other Party, shall use its commercially reasonable efforts to obtain, or to cause to be obtained, as soon as reasonably practicable, any Consent, substitution or amendment required to novate or assign all obligations and other Liabilities that constitute Alkermes Retained Liabilities, or to obtain in writing the unconditional release of all members of the Mural Group to such arrangements, so that, in any such case, the members of the Alkermes Group will be solely responsible for such Liabilities; provided, however, that except as expressly provided in any of the Ancillary Agreements, any Third Party Agreement, or as otherwise agreed between Alkermes and Mural, neither Alkermes nor Mural shall be obligated to make any payment, incur any Liability or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in any underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Third Party from whom any such Consent, substitution, amendment or release is requested.

 

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(b) If Alkermes or Mural, as applicable, is unable to obtain, or to cause to be obtained, any such required Consent, substitution, amendment or release with respect to any such Liability, the applicable member of the Mural Group shall from and after the Distribution Effective Time continue to be bound by such obligation or other Liability and, unless not permitted by the terms thereof or by Law, from and after the Distribution Effective Time, Alkermes shall or shall cause a member of the Alkermes Group to, as agent or subcontractor for such member of the Mural Group pay, perform and discharge fully such Liability to the extent that it does not constitute a Mural Liability. Mural shall cause each member of the Mural Group without further consideration to promptly pay and remit, or cause to be paid or remitted, to Alkermes or to another member of the Alkermes Group specified by Alkermes, all money, rights and other consideration received by Mural or any member of the Mural Group in respect of such performance (unless any such consideration is a Mural Asset). If and when any such Consent, substitution, amendment or release shall be obtained or the Liability shall otherwise become assignable or able to be novated, without payment of further consideration, Mural shall promptly assign, or cause to be assigned, such Liability to Alkermes or to another member of the Alkermes Group specified by Alkermes, and Alkermes shall, or shall cause such other member of the Alkermes Group to, Assume such Liability.

Section 2.13 Novation of Mural Liabilities; Indemnification.

(a) Other than with respect to Shared Contracts, which shall be governed solely by Section 2.3, each of Alkermes and Mural, at the request of the other Party, shall use its commercially reasonable efforts to obtain, or to cause to be obtained, as soon as reasonably practicable, any Consent, substitution or amendment required to novate or assign all obligations and other Liabilities that constitute Mural Liabilities, or to obtain in writing the unconditional release of all members of the Alkermes Group to such arrangements, so that, in any such case, the members of the Mural Group will be solely responsible for such Liabilities; provided, however, that except as expressly provided in any of the Ancillary Agreements, any Third Party Agreement, or as otherwise agreed between Alkermes and Mural, neither Alkermes nor Mural shall be obligated to make any payment, incur any Liability or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in any underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Third Party from whom any such Consent, substitution, amendment or release is requested.

(b) If Alkermes or Mural, as applicable, is unable to obtain, or to cause to be obtained, any such required Consent, substitution, amendment or release with respect to any such Liability, the applicable member of the Alkermes Group shall from and after the Distribution Effective Time continue to be bound by such obligation or other Liability and, unless not permitted by the terms thereof or by Law, from and after the Distribution Effective Time, Mural shall or shall cause a member of the Mural Group to, as agent or subcontractor for such member of the Alkermes Group pay, perform and discharge fully such Liability to the extent that it does not constitute an Alkermes Retained Liability. Alkermes shall cause each member of the Alkermes Group without further consideration to promptly pay and remit, or cause to be paid or remitted, to Mural or to another member of the Mural Group specified by Mural, all money, rights and other consideration received by Alkermes or any member of the Alkermes Group in respect of such performance (unless any such consideration is an Alkermes Retained Asset). If and when any such Consent, substitution, amendment or release shall be obtained or the Liability shall otherwise become assignable or able to be novated, without payment of further consideration, Alkermes shall promptly assign, or cause to be assigned, such Liability to Mural or to another member of the Mural Group specified by Mural, and Mural shall, or shall cause such other member of the Mural Group to, Assume such Liability.

 

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Section 2.14 Disclaimer of Representations and Warranties.

(a) EACH OF ALKERMES (ON BEHALF OF ITSELF AND EACH MEMBER OF THE ALKERMES GROUP) AND MURAL (ON BEHALF OF ITSELF AND EACH MEMBER OF THE MURAL GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, OR IN ANY ANCILLARY AGREEMENT, NO PARTY TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT, ANY ANCILLARY AGREEMENTS OR OTHERWISE, IS REPRESENTING OR WARRANTING IN ANY WAY, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, AS TO THE ASSETS, BUSINESSES OR LIABILITIES CONTRIBUTED, TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, AS TO NONINFRINGEMENT, VALIDITY OR ENFORCEABILITY OR ANY OTHER MATTER CONCERNING, ANY ASSETS OR BUSINESS OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN AS IS, WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST AND (II) ANY NECESSARY CONSENTS OR GOVERNMENTAL APPROVALS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.

(b) Each of Alkermes (on behalf of itself and each member of the Alkermes Group) and Mural (on behalf of itself and each member of the Mural Group) further understands and agrees that if the disclaimer of express or implied representations and warranties contained in Section 2.14(a) is held unenforceable or is unavailable for any reason under the Laws of any jurisdiction outside the United States or if, under the Laws of a jurisdiction outside the United States, both Alkermes or any member of the Alkermes Group, on the one hand, and Mural or any member of the Mural Group, on the other hand, are jointly or severally liable for any Alkermes Retained Liability or any Mural Liability, then the Parties intend that, notwithstanding any provision to the contrary under the Laws of such non-U.S. jurisdictions, the provisions of this Agreement and the Ancillary Agreements (including the disclaimer of all representations and warranties, allocation of Liabilities among the Parties and their respective Subsidiaries, releases, indemnification and contribution of Liabilities) shall prevail for any and all purposes among the Parties and their respective Subsidiaries.

 

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Section 2.15 Cash Management. From the date of this Agreement until the Distribution Effective Time, Alkermes and its Subsidiaries shall be entitled to use, retain or otherwise dispose of all cash generated by the Oncology Business and the Mural Assets in accordance with the ordinary course operation of Alkermes’ cash management systems. Prior to the Distribution Effective Time, in connection with the intended capitalization of the Mural Group, Alkermes shall cause the Mural Cash Contribution to be contributed to Mural US. All cash and cash equivalents held by any member of the Mural Group as of the Distribution Effective Time shall be a Mural Asset, and all cash and cash equivalents held by any member of the Alkermes Group as of the Distribution Effective Time shall be an Alkermes Retained Asset.

ARTICLE III

CERTAIN ACTIONS AT OR PRIOR TO THE DISTRIBUTION

Section 3.1 Transaction Agreements. At or prior to the Distribution Effective Time, Alkermes and Mural shall enter into, or (where applicable) shall cause a member or members of their respective Groups to enter into each Transaction Agreement (other than this Agreement).

ARTICLE IV

THE DISTRIBUTION

Section 4.1 Distribution.

(a) Subject to the terms and conditions of this Agreement (including the conditions set out in Section 4.5), Alkermes agrees that, on the Distribution Date and with effect from the Distribution Effective Time, it will take all necessary steps to effect the Distribution (including, without limitation, transferring its entire legal and beneficial interest in the issued capital stock of Mural US to Mural).

(b) Subject to the terms and conditions of this Agreement (including the conditions set out in Section 4.5), Mural agrees that the Mural Ordinary Shares (that are to be delivered in the Distribution) shall be credited as fully paid up and free from any liens, charges and encumbrances whatsoever and shall have the rights described in the Amended and Restated Memorandum and Articles of Association adopted pursuant to Section 4.3(f).

(c) Subject to the terms and conditions of this Agreement (including the conditions set out in Section 4.5), each Record Holder will be entitled to receive in the Distribution a number of whole Mural Ordinary Shares equal to the number of Alkermes Ordinary Shares held by such holder on the Record Date multiplied by the Distribution Ratio and rounded down to the nearest whole number, with any residual fractional interest dealt with in accordance with Section 4.2 below.

 

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(d) Subject to the conditions and other terms set forth in this Article IV, on or prior to the Distribution Date, Mural shall deliver to the Distribution Agent for the benefit of the Record Holders all of the Mural Ordinary Shares to be delivered in the Distribution and shall, to the extent permitted by applicable Law, cause the transfer agent for the Alkermes Ordinary Shares to instruct the Distribution Agent to distribute on the Distribution Date the appropriate number of Mural Ordinary Shares to each Record Holder or designated transferee or transferees of such Record Holder by way of registration in book-entry form. Mural will not issue paper share certificates. No action by any shareholder (or such shareholder’s designated transferee or transferees) shall be necessary to receive the applicable number of Mural Ordinary Shares (and, if applicable, cash in lieu of any fractional shares) to which such shareholder is entitled in the Distribution. The Distribution shall be effective at the Distribution Effective Time.

Section 4.2 Fractional Shares. Record Holders who, after aggregating the number of Mural Ordinary Shares (or fractions thereof) to which such shareholder would be entitled on the Record Date, would be entitled to receive a fraction of a Mural Ordinary Share in the Distribution, will be entitled to receive cash in lieu of such fractional share. Fractional Mural Ordinary Shares will not be issued by Mural in the Distribution. The Distribution Agent shall, as soon as practicable after the Distribution Date, (a) determine the number of whole and fractional Mural Ordinary Shares allocable to each such Record Holder, (b) aggregate all such fractional shares into whole shares and sell the whole shares obtained thereby in open market transactions at then prevailing trading prices on behalf of holders who would otherwise be entitled to fractional share interests, and (c) distribute to each such holder, or for the benefit of each such beneficial owner, such holder’s or owner’s pro rata share of the aggregate net cash proceeds of these sales, after making appropriate deductions for any amount required to be withheld for U.S. federal income tax purposes. Alkermes shall bear the cost of brokerage fees and transfer Taxes incurred in connection with these sales of fractional shares, which such sales shall occur as soon after the Distribution Date as practicable and as determined by the Distribution Agent. None of Alkermes, Mural or the Distribution Agent will guarantee any minimum sale price for the fractional Mural Ordinary Shares. Neither Alkermes nor Mural will pay any interest on the proceeds from the sale of fractional shares. The Distribution Agent will have the sole and absolute discretion to select the broker-dealers through which to sell the aggregated fractional shares and to determine when, how and at what price to sell such shares. Neither the Distribution Agent nor the selected broker-dealers will be Affiliates of Alkermes or Mural.

Section 4.3 Actions in Connection with the Distribution.

(a) Alkermes shall file any amendments or supplements to the Form 10 as may be necessary or advisable in order to cause the Form 10 to become and remain effective as required by the Commission or federal, state or other applicable securities Laws. Alkermes and Mural shall each use its reasonable best efforts to obtain all necessary approvals from the Commission with respect thereto as soon as practicable. Alkermes and Mural shall take all such action as may be necessary or appropriate under the securities or blue sky laws of states or other political subdivisions of the United States or of other non-U.S. jurisdictions in connection with the Distribution.

(b) Alkermes shall, as soon as is reasonably practicable after the Form 10 is declared effective and the Board has approved the Separation and Distribution, mail the Information Statement included in the Form 10, as well as any other information concerning Mural, its business, operations and management, the transactions contemplated herein and such other matters as Alkermes shall reasonably determine are necessary and as may be required by Law, to the Record Holders (or, in connection with the delivery of a notice of Internet availability of the Information Statement, post it on the Internet).

 

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(c) Mural shall use commercially reasonable efforts in preparing, filing with the Commission and causing to become effective, as soon as reasonably practicable (but in any case prior to the Distribution Effective Time), an effective registration statement or amendments thereof which are required in connection with the establishment of, or amendments to, any employee benefit or other plans of Mural.

(d) To the extent not already approved and effective, Mural shall use commercially reasonable efforts to have approved and made effective, the application for the original listing on Nasdaq of the Mural Ordinary Shares to be issued in the Distribution, subject to official notice of issuance.

(e) Alkermes shall, to the extent possible, give Nasdaq not less than ten (10) days’ advance notice of the Record Date in compliance with Rule 10b-17 under the Exchange Act.

(f) Alkermes and Mural shall take all such action as may be necessary or appropriate to provide for the adoption by Mural of the Amended and Restated Memorandum and Articles of Association in such form as may be reasonably determined by Alkermes and Mural.

(g) Alkermes shall enter into a distribution agent agreement with the Distribution Agent or otherwise provide instructions to the Distribution Agent regarding the Distribution.

(h) Immediately following the Distribution Effective Time, Mural shall acquire by surrender, for no consideration, the Initial Share Capital (with the exception of the Initial Mural Preferred Share) and, immediately following the issuance of a bonus preferred share (the “Bonus Share”) to the holder of the Initial Mural Preferred Share (which will occur as soon as practicable following the Distribution Effective Time), Mural shall acquire by surrender, for no consideration, the Initial Mural Preferred Share and the Bonus Share.

(i) Alkermes shall take all actions as may be necessary to approve the grants of adjusted equity awards by Alkermes (in respect of Alkermes Ordinary Shares) in connection with the Distribution in order to satisfy the requirements of Rule 16b-3 under the Exchange Act.

(j) Nothing in this Section 4.3 shall be deemed to shift or otherwise impose Liability for any portion of the Form 10 or Information Statement to Alkermes.

Section 4.4 Sole and Absolute Discretion of Alkermes. Alkermes, in its sole and absolute discretion, shall determine the Distribution Date, the Distribution Effective Time and all other terms of the Distribution, including the form, structure and terms of any transactions and/or offerings to effect the Distribution and the timing of and conditions to the consummation thereof. In addition, Alkermes may, in accordance with Section 10.10, at any time and from time to time until the completion of the Distribution decide to abandon the Distribution or modify or change the terms of the Distribution, including by accelerating or delaying the timing of the

 

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consummation of all or part of the Distribution. Without limiting the foregoing, Alkermes shall have the right not to complete the Distribution if, at any time prior to the Distribution Effective Time, the Board shall have determined, in its sole and absolute discretion, that the Distribution is not in the best interests of Alkermes, that another strategic alternative is in the best interests of Alkermes, or that it is not advisable at that time for the Oncology Business to separate from Alkermes.

Section 4.5 Conditions to Distribution. Subject to Section 4.4, the obligation of Alkermes to consummate the Distribution is subject to the prior or simultaneous satisfaction, or, to the extent permitted by applicable Law, waiver by Alkermes, in its sole and absolute discretion, of the following conditions. None of Mural, any other member of the Mural Group, or any Third Party shall have any right or claim to require the consummation of the Distribution, which shall be effected at the sole and absolute discretion of the Board. Any determination by Alkermes, and any subsequent amendment, revision, withdrawal or change thereto made by Alkermes prior to the Distribution and concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 4.5 shall be conclusive and binding on the Parties. The conditions are for the sole benefit of Alkermes and shall not give rise to or create any duty on the part of Alkermes or the Board to waive or not waive any such condition. Each Party shall use its commercially reasonable efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the following conditions:

(a) the steps in the Plan of Reorganization shall have been completed in all material respects;

(b) the Transfers of Assets and Assumptions of Liabilities described in Section 2.2 that are to be completed prior to the Distribution shall have been completed in accordance with the terms of this Agreement and each of Mural and Alkermes shall have executed and delivered, or caused to be executed and delivered, each of the Ancillary Agreements in connection therewith;

(c) the Commission shall have declared effective the Form 10, no stop order relating thereto will be in effect, no proceedings seeking any such stop order shall be pending before or threatened by the Commission, and the Information Statement shall have been mailed to the Record Holders or, in connection with the delivery of a notice of Internet availability of the Information Statement to the Record Holders, posted on the Internet;

(d) the Mural Ordinary Shares to be distributed shall have been approved and accepted for listing by Nasdaq, subject to official notice of distribution;

(e) the receipt and continuing validity of both a private letter ruling from the Internal Revenue Service and an opinion of Goodwin Procter LLP, both satisfactory to the Board, together confirming that the Separation and the Distribution, in relevant part and together with certain related transactions, are tax-free for U.S. federal income tax purposes under Sections 355 and 368(a)(1)(D) of the Code, except for cash received in lieu of fractional Mural Ordinary Shares;

 

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(f) the receipt from an independent appraisal firm acceptable to Alkermes of one or more opinions to the Alkermes Board and/or Mural Board confirming the solvency and financial viability of Alkermes and Mural after consummation of the Distribution, and such opinions shall be acceptable to Alkermes in form and substance in Alkermes’ sole discretion and such opinions shall not have been withdrawn or rescinded;

(g) all permits, registrations and Consents required under the securities or blue sky laws of states or other political subdivisions of the United States or of other non-U.S. jurisdictions in connection with the Distribution shall have been received;

(h) no order, injunction, or decree issued by any Governmental Entity of competent jurisdiction, or other legal restraint or prohibition preventing the consummation of the Distribution or any of the related transactions shall be pending, threatened, issued or in effect, and no other event outside the control of Alkermes shall have occurred or failed to occur that prevents the consummation of all or any portion of the Distribution;

(i) the Board shall have declared the Distribution and approved all related transactions (and such declaration or approval shall not have been withdrawn);

(j) each of Mural and Alkermes shall have executed and delivered, or caused to be executed and delivered, each of the other Transaction Agreements; and

(k) no events or developments shall have occurred or shall exist that, in the sole and absolute judgment of the Board, make it inadvisable to effect the Distribution or would result in the Distribution and related transactions not being in the best interest of Alkermes or its shareholders.

ARTICLE V

CERTAIN COVENANTS

Section 5.1 Non-Solicit; Non-Hire. Commencing on, and for a period of six (6) months following the Distribution Date, neither Party nor any of its Subsidiaries will: (a) without the prior written consent of the other Party, directly or indirectly, on their own behalf or in the service or on behalf of others, solicit, aid, induce or knowingly encourage any employee of the other Party to terminate or breach an employment, contractual or other relationship with the other Party (or any of its Subsidiaries), or (b) hire or otherwise employ any employee of the other Party (or any of its Subsidiaries); provided, however, that nothing in this Section 5.1 shall be deemed to prohibit (i) any general solicitation for employment through advertisements and search firms not specifically directed at employees of such other Party (or any of its Subsidiaries), provided that the soliciting Person has not directed, advised or knowingly encouraged such firm to approach any such employee, (ii) the solicitation or hiring of an individual whose employment was terminated by such other Party (or any of its Subsidiaries), (iii) the solicitation or hiring of an individual formerly employed by a Party (or any of its Subsidiaries) at any time after six (6) months following such individual’s termination of his or her employment with such other Party or (iv) the hiring by any Party of any individual (x) not solicited by such Party in breach of this Section 5.1 and (y) with the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), it being understood that the Party whose consent is requested may take into account, among other things, its own hiring needs and competitive considerations.

 

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Section 5.2 No Right to Use Regulatory Information. Except as the Parties may otherwise agree in writing (including in any Ancillary Agreement) or as would otherwise be permitted by Law: (a) no member of the Alkermes Group shall have a right of reference to or otherwise be entitled to use any regulatory filings or other regulatory information owned or controlled by any member of the Mural Group for any products or product candidates in the Oncology Business; and (b) no member of the Mural Group shall have a right of reference to or otherwise be entitled to use any regulatory filings or other regulatory information owned or controlled by any member of the Alkermes Group for any products or product candidates in the Neuroscience Business.

Section 5.3 Use of Retained Names and Marks. Mural hereby acknowledges that Alkermes or its Affiliates or its or their licensors own all right, title and interest in and to the Trademarks and all other identifiers of source or goodwill containing, incorporating or associated with Trademarks, excluding, on and after the Distribution Date, the Mural Trademarks (collectively, the “Retained Names and Marks”), and that any and all right of Mural to use the Retained Names and Marks shall terminate as of the Distribution Date and shall immediately revert to Alkermes or its Affiliates, along with any and all goodwill associated therewith. Mural further acknowledges that it has no rights in any of the Retained Names and Marks, and that it is not acquiring any rights, directly or indirectly, to use the Retained Names and Marks, except as expressly provided herein. Alkermes hereby acknowledges that, on and after the Distribution Date, Mural or its Affiliates or its or their licensors own all right, title and interest in and to the Mural Trademarks, and that any and all right of Alkermes to use the Mural Trademarks shall terminate as of the Distribution Date. Alkermes further acknowledges that, on and after the Distribution Date, it will have no rights in any of the Mural Trademarks.

ARTICLE VI

INDEMNIFICATION

Section 6.1 Release of Pre-Distribution Claims.

(a) Except (x) as provided in Section 6.1(b), (y) as may be otherwise expressly provided in this Agreement or in any Ancillary Agreement and (z) for any matter for which either Party is entitled to indemnification pursuant to this Article VI or under any Ancillary Agreement:

(i) Alkermes, for itself and each member of the Alkermes Group and, to the extent permitted by Law, all Persons who at any time prior to the Distribution Effective Time were directors, officers, agents or employees of any member of the Alkermes Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, does hereby remise, release and forever discharge Mural and the other members of the Mural Group and all Persons who at any time prior to the Distribution Effective Time were shareholders, directors, officers, agents or employees of any member of the Mural Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, from any and all

 

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(A) Alkermes Retained Liabilities and (B) Liabilities existing or arising: (1) in connection with the implementation of the Separation (including the Distribution); or (2) from actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to the Distribution Effective Time (whether or not such Liabilities cease being contingent, mature, become known, are asserted or foreseen, or accrue, in each case before, at or after the Distribution Effective Time), in each case to the extent relating to, arising out of or resulting from the Neuroscience Business, the Alkermes Retained Assets or the Alkermes Retained Liabilities, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, in each case, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Distribution Effective Time, including in connection with the Separation and any of the other transactions contemplated hereunder and under the Ancillary Agreements (such liabilities, the “Alkermes Released Liabilities”) and in any event shall not, and shall cause its respective Subsidiaries not to, bring any Action against any member of the Mural Group in respect of any Alkermes Released Liabilities. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to limit Alkermes, any member of the Alkermes Group, or their respective Affiliates from commencing any Actions against any Mural officer, director, agent or employee, or their respective heirs, executors, administrators, successors and assigns, with regard to matters arising from, or relating to criminal acts by any such officers, directors, agents or employees.

(ii) Mural, for itself and each member of the Mural Group and, to the extent permitted by Law, all Persons who at any time prior to the Distribution Effective Time were directors, officers, agents or employees of any member of the Mural Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, does hereby remise, release and forever discharge Alkermes and the other members of the Alkermes Group and all Persons who at any time prior to the Distribution Effective Time were shareholders, directors, officers, agents or employees of any member of the Alkermes Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, from any and all (A) Mural Liabilities and (B) Liabilities existing or arising: (1) in connection with the implementation of the Separation (including the Distribution); or (2) from actions, inactions, events, omissions, conditions, facts or circumstances occurring or existing prior to the Distribution Effective Time (whether or not such Liabilities cease being contingent, mature, become known, are asserted or foreseen, or accrue, in each case before, at or after the Distribution Effective Time), in each case to the extent relating to, arising out of or resulting from the Oncology Business, the Mural Assets or the Mural Liabilities, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, in each case, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Distribution Effective Time, including in connection with the Separation and any of the other transactions contemplated hereunder and under the Ancillary Agreements (such liabilities, the “Mural Released Liabilities”) and in any event shall not, and shall cause its respective Subsidiaries, if any, not to, bring any Action against any member of the Alkermes Group in respect of any Mural Released Liabilities; provided, however, that for purposes of this Section 6.1(a)(ii), the members of the Mural Group shall also release and discharge any officers or other employees of any member of the Alkermes Group, to the extent

 

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any such officers or employees served as directors or officers of any member of the Mural Group prior to the Distribution, from any and all Liabilities or responsibilities for any and all past actions or failures to take action, in each case in their respective capacities as directors or officers, as the case may be, of any such member of the Mural Group, prior to the Distribution Effective Time. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to limit Mural, any member of the Mural Group, or their respective Affiliates from commencing any Actions against any Alkermes officer, director, agent or employee, or their respective heirs, executors, administrators, successors and assigns, with regard to matters arising from, or relating to criminal acts by any such officers, directors, agents or employees.

(b) Nothing contained in this Agreement, including Section 6.1(a) or Section 2.8, shall impair or otherwise affect any right of any Party and, as applicable, a member of such Party’s Group, as well as their respective heirs, executors, administrators, successors and assigns, to enforce this Agreement, any Ancillary Agreement or any agreements, arrangements, commitments or understandings contemplated in this Agreement or in any Ancillary Agreement to continue in effect after the Distribution Effective Time. In addition, nothing contained in Section 6.1(a) shall:

(i) release any Person from any Liability Assumed, Transferred or expressly assigned to a Party or a member of such Party’s Group pursuant to or as contemplated by, or any other Liability of any member of such Group under, this Agreement or any Ancillary Agreement including (A) with respect to Alkermes, any Alkermes Retained Liability, (B) with respect to Mural, any Mural Liability, (C) any Liability expressly preserved pursuant to Section 2.8 and (D) any Liability that the Parties may have with respect to indemnification or contribution pursuant to this Agreement or any Ancillary Agreement or otherwise for Actions brought against the Parties by Third Parties, which Liability shall be governed by the provisions of this Agreement and, in particular, this Article VI and, if applicable, the appropriate provisions of the Ancillary Agreements;

(ii) release any Person from any Liability provided for in or resulting from any other Contract or understanding that is entered into after the Distribution Effective Time between any Party (and/or a member of such Party’s Group), on the one hand, and the other Party (and/or a member of such Party’s Group), on the other hand;

(iii) release any Person other than the Persons released in Section 6.1(a); or

(iv) release any employee of Mural from any Contract with any member of the Alkermes Group to the extent related to the Alkermes Retained Assets, Alkermes Retained Liabilities or Neuroscience Business.

In addition, nothing contained in Section 6.1(a) shall release Alkermes from indemnification or contribution with respect to any director, officer or employee of Mural who was a director, officer or employee of Alkermes or any of its Affiliates prior to the Distribution Effective Time, as the case may be, with respect to which he or she was entitled to such indemnification or contribution pursuant to an obligation existing immediately prior to the Distribution Effective Time; it being understood that if the underlying obligation giving rise to such Action is established by a court of competent jurisdiction to be a Mural Liability, Mural shall indemnify Alkermes for such Liability (including Alkermes’ costs to indemnify the director, officer or employee) in accordance with the provisions set forth in this Article VI.

 

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(c) Each Party shall not, and shall not permit any member of its Group to, make any claim for offset, or commence any Action, including any claim of contribution or any indemnification, against any other Party or any member of any other Party’s Group, or any other Person released pursuant to Section 6.1(a), with respect to any Liabilities released pursuant to Section 6.1(a). If any Person associated with a Party (including any director, officer or employee of a Party) initiates any Action with respect to claims released by this Section 6.1, the Party with which such Person is associated shall be responsible for the reasonable fees and expenses of counsel of the other Party and/or the members of such Party’s Group, as applicable, and such other Party shall be indemnified for all Liabilities incurred in connection with such Action in accordance with the provisions set forth in this Article VI.

(d) Each Party acknowledges that the foregoing releases include a release of any rights and benefits with respect to the Liabilities described therein that such Party and each member of such Party’s Group, and their respective successors and assigns, now has or in the future may have conferred upon them by virtue of any statute or common law principle which provides that a general release does not extend to claims which a Party does not know or suspect to exist in its favor at the time of executing the release. In this connection, each Party hereby acknowledges that it is aware that factual matters now unknown to it may have given or may hereafter give rise to Liabilities that are presently unknown, unanticipated and unsuspected, and it further agrees that the foregoing releases have been negotiated and agreed upon in light of that awareness.

Section 6.2 Indemnification by Alkermes. In addition to any other provisions of this Agreement requiring indemnification and except as otherwise specifically set forth in any provision of this Agreement or of any Ancillary Agreement, following the Distribution Effective Time, Alkermes shall and shall cause the other members of the Alkermes Group to indemnify, hold harmless and defend the Mural Indemnitees from and against any and all Indemnifiable Losses of the Mural Indemnitees to the extent relating to, arising out of, by reason of or otherwise in connection with (a) the Alkermes Retained Liabilities, including the failure of any member of the Alkermes Group or any other Person to pay, perform or otherwise discharge any Alkermes Retained Liability in accordance with its respective terms, whether arising prior to, on or after the Distribution Effective Time, or (b) any breach by Alkermes of any provision of this Agreement or any Ancillary Agreement unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made thereunder (each, a “Mural Claim”).

Section 6.3 Indemnification by Mural. In addition to any other provisions of this Agreement requiring indemnification and except as otherwise specifically set forth in any provision of this Agreement or of any Ancillary Agreement, following the Distribution Effective Time, Mural shall and shall cause the other members of the Mural Group to indemnify, hold harmless and defend the Alkermes Indemnitees from and against any and all Indemnifiable Losses of the Alkermes Indemnitees to the extent relating to, arising out of, by reason of or otherwise in connection with (a) the Mural Liabilities, including the failure of any member of the

 

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Mural Group or any other Person to pay, perform or otherwise discharge any Mural Liability in accordance with its respective terms, whether prior to, on or after the Distribution Effective Time, or (b) any breach by Mural of any provision of this Agreement or any Ancillary Agreement unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made thereunder (each, an “Alkermes Claim”).

Section 6.4 Procedures for Indemnification.

(a) Other than with respect to Third Party Claims, which shall be governed by Section 6.4(b):

(i) if a Mural Indemnitee has made a determination that it is or may be entitled to indemnification in respect of any Mural Claim, the Mural Indemnitee shall so notify Alkermes as promptly as reasonably practicable after becoming aware of the existence of such Mural Claim; and

(ii) if an Alkermes Indemnitee has made a determination that it is or may be entitled to indemnification in respect of any Alkermes Claim, the Alkermes Indemnitee shall so notify Mural as promptly as reasonably practicable after becoming aware of the existence of such Alkermes Claim (any such claim made pursuant to Section 6.4(a)(i) or this Section 6.4(a)(ii), a “Direct Claim”).

Each such notice shall be in writing and shall describe in reasonable detail the basis for the claim for indemnification hereunder and set forth, to the extent known, the estimated amount of Indemnifiable Losses for which indemnification may be sought hereunder relating to such claim (including, to the extent practicable, the method of computation thereof); provided, however, that the failure to provide such written notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure. The Indemnifying Party will have a period of thirty (30) days after receipt of any such notice under this Section 6.4(a) to respond to the claimant thereto. If the Indemnifying Party fails to respond within such period, the claim specified in such notice from the Indemnitee shall be conclusively determined to be an indemnifiable claim for which the Indemnifying Party shall be liable to the applicable Indemnitee(s) hereunder.

(b) If a claim or demand is made against an Indemnitee by any Third Party (a “Third Party Claim”) as to which such Indemnitee is or may be entitled to indemnification pursuant to this Agreement, Alkermes (on behalf of the Alkermes Indemnitees) or Mural (on behalf of the Mural Indemnitees), as applicable (such claimant, the “Claiming Party”), shall notify the Indemnifying Party of the Third Party Claim in writing and in reasonable detail describing the basis for any claim for indemnification hereunder, referring to the provisions of this Agreement or any Ancillary Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises and including copies of all Third Party written notices and documents received by the Claiming Party (and any or all of its Indemnitees) relating to the Third Party Claim promptly (and in any event within twenty (20) days) after receipt by such Indemnitee of written notice of the Third Party Claim; provided, however, that the failure to

 

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provide notice of any such Third Party Claim pursuant to this sentence shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure. Thereafter, the Claiming Party shall deliver to the Indemnifying Party, promptly (and in any event within five (5) Business Days) after the receipt thereof by the Claiming Party (or any of its Indemnitees), copies of any and all additional Third Party written notices and documents (including court papers) received by the Claiming Party (or any of its Indemnitees) relating to the Third Party Claim.

(c) Subject to the provisions of this Section 6.4(c), the Indemnifying Party has the right, exercisable by written notice to the Claiming Party within thirty (30) days after receipt of notice from the Claiming Party pursuant to Section 6.4(b), to assume and conduct the defense (including, subject to the conditions of this Section 6.4(c), settlement) of such Third Party Claim in accordance with the limits set forth in this Agreement with counsel selected by the Indemnifying Party and reasonably acceptable to the applicable Indemnitees. If the Indemnifying Party does not assume the defense of a Third Party Claim in accordance with this Section 6.4(c), the Indemnitee may defend the Third Party Claim. If the Indemnifying Party has assumed the defense of a Third Party Claim as provided in this Section 6.4(c), the Indemnifying Party shall not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense of the Third Party Claim; provided, however, that if (w) in the reasonable judgment of the Indemnitee, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and the applicable Indemnitee(s) in the defense of such Third Party Claim by the Indemnifying Party, (x) the party making such Third Party Claim is a Governmental Entity with regulatory or other authority over the Indemnitee or any of its material assets, (y) the Third Party Claim seeks injunctive or other non-monetary relief that, if granted, would reasonably be expected to have a material and adverse effect on the Indemnitee’s business or (z) the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim, the Indemnitee may assume its own defense, and the Indemnifying Party shall be liable for all reasonable costs or expenses paid or incurred in connection with such defense; provided that the Indemnifying Party shall not be responsible for the expenses of more than one counsel for all Indemnitees with respect to the same Third Party Claim or related Third Party Claims (plus one local counsel in any jurisdiction within which such Third Party Claim has been brought). The Indemnifying Party or the Indemnitee, as the case may be, has the right to participate in (but, subject to the prior sentence, not control), at its own expense, the defense of any Third Party Claim that the other Person is defending as provided in this Agreement. The Indemnifying Party, if it has assumed the defense of any Third Party Claim as provided in this Agreement, may not, without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed), consent to a settlement or compromise of, or the entry of any judgment arising from, any such Third Party Claim. The Indemnitee may consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party Claim, the defense of which has not been assumed by the Indemnifying Party, only with the prior written consent of the Indemnifying Party, not to be unreasonably withheld, conditioned or delayed.

 

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(d) The Claiming Party and the Indemnifying Party shall (and the Claiming Party shall cause the applicable Indemnitee(s) to) make reasonably available to each other and their respective agents and representatives all relevant records available to them that are necessary or appropriate for the defense of any Third Party Claim, subject to any bona fide claims of attorney-client privilege, and each of the Indemnifying Party and the Claiming Party shall use its reasonable efforts to assist, and to cause the employees and counsel of such party to assist, in the defense of such Third Party Claim. If a Party asserts its right to participate in the defense and investigation of any Third Party Claim, the Party controlling the defense and investigation of such Third Party Claim shall act in good faith and reasonably consult and cooperate with the Indemnitee or the Indemnifying Party, as the case may be, in connection with any appearances, briefs, arguments and proposals made or submitted by or on behalf of any party in connection with the Third Party Claim (including considering in good faith all reasonable additions, deletions or changes suggested by the Indemnitee or the Indemnifying Party, as the case may be, in connection with any filings made with any Governmental Entity or proposals to the Third Party claimant in connection therewith). With respect to any Third Party Claim that implicates both Parties in any material respect due to the allocation of Liabilities, responsibilities for management of defense and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, the Parties agree to use commercially reasonable efforts to cooperate fully and maintain a joint defense (in a manner that, to the extent reasonably practicable, will preserve for all Parties any Privilege with respect thereto). The Party that is not responsible for managing the defense of any such Third Party Claim shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may, if necessary or helpful, retain counsel to assist in the defense of such claims. Notwithstanding the foregoing, nothing in this Section 6.4(d) shall derogate from a Party’s right to control the defense of any Action in accordance with Section 6.4.

(e) Each of the Parties agrees that at all times from and after the Distribution Effective Time, if an Action is commenced by a Third Party naming two (2) or more Parties (or any member of such Parties’ respective Groups) as defendants and with respect to which one or more named Parties (or any member of such Party’s Group) is a nominal defendant and/or such Action is related solely to an Asset or Liability that the other Party has been assigned under this Agreement, any Ancillary Agreement or any Third Party Agreement, then the other Party or Parties shall use commercially reasonable efforts to cause such nominal defendant to be removed from such Action, as soon as reasonably practicable.

(f) The provisions of this Section 6.4 (other than this Section 6.4(f)) and Section 6.7 (other than Section 6.7(g)) shall not apply to Taxes (Taxes being governed by the Tax Matters Agreement).

Section 6.5 Indemnification Obligations Net of Insurance Proceeds and Other Amounts.

(a) Any recovery by any Party (including any of its Indemnitees) for any Indemnifiable Loss subject to indemnification pursuant to this Article VI shall be calculated (i) net of Insurance Proceeds actually received by such Party (or any of its Indemnitees) with respect to any Indemnifiable Loss and (ii) net of any proceeds actually received by such Party (or any of its Indemnitees) from any Third Party with respect to any such Liability corresponding to the Indemnifiable Loss (“Third Party Proceeds”), in the case of (i) and (ii) net of the costs of collection thereof and any increase in premium attributable thereto under applicable Third Party Policies. Accordingly, the amount which any Indemnifying Party is required to pay pursuant to

 

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this Article VI to any Indemnitee pursuant to this Article VI shall be reduced by any Insurance Proceeds or Third Party Proceeds theretofore actually recovered by or on behalf of the Indemnitee corresponding to the related Indemnifiable Loss. If an Indemnitee receives a payment required by this Agreement from an Indemnifying Party corresponding to any Indemnifiable Loss (an “Indemnity Payment”) and subsequently receives Insurance Proceeds or Third Party Proceeds, then the Indemnitee shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or Third Party Proceeds had been received, realized or recovered before the Indemnity Payment was made.

(b) The Parties hereby agree that an insurer or other Third Party that would otherwise be obligated to pay any amount shall not be relieved of the responsibility with respect thereto or have any subrogation rights with respect thereto by virtue of any provision contained in this Agreement or any Ancillary Agreement, and that no insurer or any other Third Party shall be entitled to a “windfall” (e.g., a benefit they would not otherwise be entitled to receive, or the reduction or elimination of an insurance coverage obligation that they would otherwise have, in the absence of the indemnification or release provisions) by virtue of any provision contained in this Agreement or any Ancillary Agreement. Each Party shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to collect or recover, or allow the Indemnifying Party to collect or recover, or cooperate with each other in collecting or recovering, any Insurance Proceeds that may be collectible or recoverable respecting the Liabilities for which indemnification may be available under this Article VI. Notwithstanding the foregoing, an Indemnifying Party may not delay making any indemnification payment required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Actions to collect or recover Insurance Proceeds, and an Indemnitee need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Ancillary Agreement.

Section 6.6 Contribution. If the indemnification provided for in this Article VI is unavailable for any reason to an Indemnitee (other than failure to provide notice with respect to any Third Party Claims in accordance with Section 6.4(b)) in respect of any Indemnifiable Loss, then the Indemnifying Party shall, in accordance with this Section 6.6, contribute to the Indemnifiable Losses incurred, paid or payable by such Indemnitee as a result of such Indemnifiable Loss in such proportion as is appropriate to reflect the relative fault of Mural and each other member of the Mural Group, on the one hand, and Alkermes and each other member of the Alkermes Group, on the other hand, in connection with the circumstances which resulted in such Indemnifiable Loss. Solely for purposes of determining relative fault pursuant to this Section 6.6: (i) any fault associated with information contained in the Distribution Disclosure Documents shall be deemed to be allocated to Mural and the other members of the Mural Group (other than as set forth in the definition of Excluded Liabilities); (ii) any fault associated with the conduct of the Neuroscience Business prior to the Distribution Effective Time shall be deemed to be allocated to Alkermes and the other members of the Alkermes Group, and no such fault shall be deemed to be the fault of Mural or any other member of the Mural Group; and (iii) any fault associated with the conduct of the Oncology Business prior to the Distribution Effective Time shall be deemed to be the fault of Mural and the other members of the Mural Group, and no such fault shall be deemed to be the fault of Alkermes or any other member of the Alkermes Group.

 

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Section 6.7 Additional Matters; Survival of Indemnities.

(a) The agreements contained in this Article VI shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnitee; and (ii) the knowledge by the Indemnitee of Indemnifiable Losses for which it might be entitled hereunder. The agreements contained in this Article VI shall survive the Distribution.

(b) The rights and obligations of each Party and their respective Indemnitees under this Article VI shall survive (i) the sale or other Transfer by any Party or its respective Subsidiaries of any Assets or businesses or the assignment by it of any Liabilities and (ii) any merger, consolidation, business combination, sale of all or substantially all of the Assets, restructuring, recapitalization, reorganization or similar transaction involving either Party or any of its Subsidiaries.

(c) Except to the extent set forth in any Ancillary Agreement, absent fraud or willful misconduct by an Indemnifying Party, the provisions of this Article VI shall be the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or losses resulting from any breach of this Agreement or any Ancillary Agreement and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the foregoing other than under this Article VI against any Indemnifying Party.

(d) Notwithstanding the foregoing, to the extent any Ancillary Agreement provides procedures for indemnification or contribution that differ from the provisions set forth in this Article VI, the terms of the Ancillary Agreement will govern.

(e) Any amounts payable pursuant to this Article VI shall be paid without duplication, and in no event shall any Party receive any payment in respect of an Indemnifiable Loss or receive contribution under different provisions of any Ancillary Agreement in respect of the same Liabilities.

(f) Any amount to be paid or reimbursed by an Indemnifying Party (or a member of such Party’s Group) to an Indemnitee pursuant to this Article VI shall be paid in accordance with the procedures set forth in Section 10.11.

(g) For all Tax purposes, the Parties agree to treat (i) any payment required by this Agreement (other than payments with respect to interest accruing after the Effective Time) by (x) Alkermes to Mural as a tax-free contribution by Alkermes to Mural with respect to Mural Ordinary Shares occurring immediately before the Effective Time or (y) Mural to Alkermes as a distribution by Mural to Alkermes with respect to Mural Ordinary Shares occurring immediately before the Effective Time, or as a payment of an assumed or retained Liability; and (ii) any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in either case except as otherwise required by a Final Determination (as such term is defined in the Tax Matters Agreement).

 

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ARTICLE VII

PRESERVATION OF RECORDS; ACCESS TO INFORMATION;

CONFIDENTIALITY; PRIVILEGE

Section 7.1 Preservation of Information.

(a) Except as otherwise required or agreed in writing, or as otherwise provided in any Ancillary Agreement, with regard to any information referenced in Section 7.3, each Party shall use its commercially reasonable efforts, at its sole cost and expense, to retain such information, until the latest of, as applicable, (i) the date on which such information is no longer required to be retained pursuant to Alkermes’ applicable record retention policy as in effect immediately prior to the Distribution, including pursuant to any “Litigation Hold” issued by Alkermes or any of its Subsidiaries prior to the Distribution, (ii) the concluding date of any period as may be required by any applicable Law, (iii) the concluding date of any period during which such information relates to a pending or threatened Action which is known to the members of the Alkermes Group or Mural Group, as applicable, in possession of such information at the time any retention obligation with regard to such information would otherwise expire, and (iv) the concluding date of any period during which the destruction of such information could interfere with a pending or threatened investigation by a Governmental Entity which is known to the members of the Alkermes Group or Mural Group, as applicable, in possession of such information at the time any retention obligation with regard to such information would otherwise expire; provided, that with respect to any pending or threatened Action arising after the Distribution, clause (iii) of this sentence applies only to the extent that whichever member of the Alkermes Group or Mural Group, as applicable, is in possession of such information has been notified in writing pursuant to a “Litigation Hold” by the other Party of the relevant pending or threatened Action. The Parties agree that upon written request from either Party that certain information relating to the Oncology Business, the Neuroscience Business or the transactions contemplated hereby be retained in connection with an Action, the other Party shall use reasonable efforts to preserve and not to destroy or dispose of such information without the consent of the requesting Party.

(b) Alkermes and Mural intend that any transfer of information that would otherwise be within the attorney-client or attorney work product privileges not operate as a waiver of any potentially applicable privilege.

Section 7.2 Financial Statements and Accounting.

(a) From the Distribution Effective Time until the completion of each Party’s audit for the fiscal year ending December 31, 2023, each Party agrees to provide reasonable assistance and, subject to Section 7.7, reasonable access to its properties, books and records, other information in its possession and control and personnel, and to use its commercially reasonable efforts to cooperate with the other Party’s requests, in each case to enable (i) such other Party to meet its timetable for dissemination of its earnings releases, financial statements and management’s assessment of the effectiveness of its disclosure controls and procedures and its internal control over financial reporting in accordance with Items 307 and 308, respectively, of Regulation S-K, (ii) such other Party’s accountants to timely complete their review of the quarterly financial statements and audit of the annual financial statements of such other Party,

 

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including, to the extent applicable to such Party, its auditor’s audit, if applicable, of its internal control over financial reporting and management’s assessment thereof in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 and the Commission’s and Public Company Accounting Oversight Board’s rules and auditing standards thereunder and (iii) such other Party to respond to any written request or official comment from a Governmental Entity, including in connection with responding to a comment letter from the Commission; provided, that, in connection with this clause (iii), each Party shall provide reasonable access on the terms set forth in this Section 7.2 for a period of three (3) years following the Distribution Date. For the avoidance of doubt, this Section 7.2(a) shall not limit in any manner the obligations of the Parties under any Ancillary Agreement.

(b) Nothing in this Article VII shall require any Party to violate any agreement with any Third Party regarding the confidentiality of information relating to that Third Party or its business (except as may be required by law); provided, however, that in the event that a Party is required under this Section 7.2 to disclose any such information, such Party shall use commercially reasonable efforts to seek to obtain such Third Party’s prior written consent to the disclosure of such information.

Section 7.3 Provision of Information. Other than in circumstances in which indemnification is sought pursuant to Article VI (in which event the provisions of such Article VI shall govern) or for matters related to provision of Tax records (in which event the provisions of the Tax Matters Agreement shall govern), and subject to appropriate restrictions for Privileged Information or Confidential Information:

(a) From and after the Distribution Effective Time, and subject to compliance with the terms of the Ancillary Agreements (including Section 4.1 of each of the Alkermes Transition Services Agreement and the Mural Transition Services Agreement), upon the prior written reasonable request by, and at the expense of, Mural for specific and identified: (i) information that relates to Mural or the Oncology Business, as the case may be, prior to the Distribution Effective Time; (ii) information that is necessary for Mural or a member of the Mural Group to comply with the terms of, or otherwise perform under, any Shared Contract or Ancillary Agreement to which Alkermes and/or Mural, or a member of their respective Groups, are parties; (iii) copies of Alkermes templates and form documents used in the operation of the Oncology Business; (iv) information that is otherwise required by Mural with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on Mural (including under applicable securities laws) by a Governmental Entity having jurisdiction over Mural; or (v) information that is otherwise for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, Action or other similar requirements, as applicable, Alkermes shall provide, as soon as reasonably practicable following the receipt of such request, appropriate access or, to the extent such information is reasonably practicable to identify and extract, copies of such information, templates or forms (or the originals thereof if Mural has a reasonable need for such originals) in the possession or control of Alkermes or any of its Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Mural or any of its Subsidiaries; provided, that, to the extent any originals are delivered to Mural pursuant to this Agreement, a Shared Contract or the Ancillary Agreements, Mural shall, at its own expense, return them to Alkermes within a reasonable time after the need to retain such originals has ceased; and

 

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provided further, that, in the event that Alkermes, in its sole and absolute discretion, determines that any such access or the provision of any such information, templates or forms (including information requested under Section 7.2) would violate any Law or Contract with a Third Party or waive any Privilege, Alkermes shall not be obligated to provide such information requested by Mural (provided, that Alkermes shall use commercially reasonable efforts to permit compliance with its obligations under this Section 7.3 in a manner that avoids any such consequence). Notwithstanding the foregoing, Alkermes shall not be obligated to provide any requested information pursuant to clause (iv) or (v) above following the date that is the fifth anniversary of the Distribution Date (or such later time or times as the Parties may agree).

(b) From and after the Distribution Effective Time, and subject to compliance with the terms of the Ancillary Agreements (including Section 4.1 of each of the Alkermes Transition Services Agreement and the Mural Transition Services Agreement), upon the prior written reasonable request by, and at the expense of, Alkermes for specific and identified information that: (i) relates to Alkermes or the Neuroscience Business, as the case may be, prior to the Distribution Effective Time; (ii) is necessary for Alkermes or a member of the Alkermes Group to comply with the terms of, or otherwise perform under, any Shared Contract or Ancillary Agreement to which Alkermes and/or Mural, or a member of their respective Groups, are parties; (iii) is otherwise required by Alkermes with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on Alkermes (including under applicable securities laws) by a Governmental Entity having jurisdiction over Alkermes; or (iv) is otherwise for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, Action or other similar requirements, as applicable, Mural shall provide, as soon as reasonably practicable following the receipt of such request, appropriate access or, to the extent such information is reasonably practicable to identify and extract, copies of such information (or the originals thereof if Alkermes has a reasonable need for such originals) in the possession or control of Mural or any of its Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Alkermes or any of its Subsidiaries; provided, that, to the extent any originals are delivered to Alkermes pursuant to this Agreement, a Shared Contract or the Ancillary Agreements, Alkermes shall, at its own expense, return them to Mural within a reasonable time after the need to retain such originals has ceased; and provided, further that, in the event that Mural, in its sole and absolute discretion, determines that any such access or the provision of any such information (including information requested under Section 7.2) would violate any Law or Contract with a Third Party or waive any Privilege, Mural shall not be obligated to provide such information requested by Alkermes (provided, that Mural shall use commercially reasonable efforts to permit compliance with its obligations under this Section 7.3 in a manner that avoids any such consequence). Notwithstanding the foregoing, Mural shall not be obligated to provide any requested information pursuant to clause (iii) or (iv) above following the date that is the fifth anniversary of the Distribution Date (or such later time or times as the Parties may agree).

(c) In connection with the provision of information under this Section 7.3, the providing Party shall be entitled to redact any portion of the information to the extent related to any matter other than the receiving Party’s business. Each of Alkermes and Mural agree to make their respective personnel available during regular business hours to discuss the information exchanged pursuant to this Section 7.3.

 

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Section 7.4 Limitations of Liability. Neither Party shall have any Liability to the other Party in the event that any information exchanged or provided pursuant to this Agreement is found to be inaccurate in the absence of gross negligence, bad faith or willful misconduct by the Party providing such information. Neither Party shall have any Liability to any other Party if any information is destroyed after commercially reasonable efforts by such Party to comply with the provisions of Section 7.1.

Section 7.5 Witness Services; Cooperation. At all times from and after the Distribution Effective Time, each of Alkermes and Mural shall use its commercially reasonable efforts to make available to the other Party, upon reasonable written request, its and its Subsidiaries’ officers, directors, employees and agents (taking into account the business demands of such individuals) as witnesses to the extent that (i) such Persons may reasonably be required to testify in connection with the prosecution or defense of any Action in which the requesting Party may from time to time be involved (except for claims, demands or Actions in which one or more members of one Group is adverse to one or more members of the other Group) and (ii) there is no conflict in the Action between the requesting Party and the other Party. Notwithstanding any provisions of Article VII to the contrary, after the Distribution Effective Time, each Party shall use commercially reasonable efforts to assist (or cause the other members of its Group to assist) the other with respect to any Action or potential Action upon the request of such other Party; provided, that any such expenses incurred in connection therewith shall be at such other Party’s sole expense.

Section 7.6 Reimbursement; Other Matters. Except to the extent otherwise contemplated by this Agreement or any Ancillary Agreement, a Party providing information, access to information or services to the other Party pursuant to this Article VII shall be entitled to receive from the recipient, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other out-of-pocket expenses (which shall not include the costs of salaries and benefits of employees of such Party or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service with respect to the foregoing), as may be reasonably incurred and properly paid under applicable Law in providing such information, access to such information or services.

Section 7.7 Confidentiality.

(a) Except as otherwise provided herein, in any Ancillary Agreement, or in any Contract between a Party or its Subsidiaries, on the one hand, and their respective employees, on the other hand, each of Alkermes and Mural shall hold, and shall cause the other members of their respective Groups and their respective Representatives to hold, in strict confidence, with at least the same degree of care that applies to Alkermes’ Confidential Information pursuant to policies and procedures in effect as of the Distribution Effective Time, and not disclose or release, or permit or cause to be disclosed or released, any Confidential Information of the other Party that is either in the first Party’s possession (including Confidential Information in its possession prior to the Distribution Effective Time) or furnished by the other Party or any member of its Group or their respective Representatives at any time pursuant to this Agreement or any Ancillary Agreement, and shall not use any such Confidential Information other than for such purposes as may be expressly permitted hereunder (including under

 

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Section 2.4) or under any Ancillary Agreement. If any Confidential Information is disclosed to any member of the other Party’s Group in connection with providing services to any member of such first Party’s Group under this Agreement or any Ancillary Agreement, then such disclosed Confidential Information shall be used by the applicable member of such other Party’s Group only as required to provide such services.

(b) Notwithstanding anything to the contrary in this Section 7.7, each Party may disclose, or may permit disclosure of, the other Party’s Confidential Information: (i) to its Representatives who have a need to know such information for non-commercial purposes and are informed of the obligation to hold such information confidential and in respect of whose failure to comply with such obligations, the first Party will be responsible or (ii) if any Party or any other member of its Group is required or requested to disclose any such Confidential Information by judicial or administrative process or by other requirements of Law or stock exchange rule or is advised by outside counsel in connection with an Action brought by a Governmental Entity that it is advisable to do so. Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made by a Third Party pursuant to clause (ii) above, each Party, as applicable, shall promptly notify (to the extent permissible by Law) the Party to whom the Confidential Information relates of the existence of such requirement or request and shall provide such affected Party a reasonable opportunity to seek an appropriate protective order or other remedy, which such Party (at the expense of the other Party) will cooperate in obtaining to the extent reasonably practicable. In the event that such appropriate protective order or other remedy is not obtained, the Party which faces the disclosure requirement shall furnish only that portion of the Confidential Information that is required to be disclosed and shall take commercially reasonable steps to ensure that confidential treatment is accorded such Confidential Information.

(c) Each of Alkermes and Mural shall inform their respective Representatives who have or have access to the other Party’s Confidential Information of their obligation to hold such information confidential in accordance with the provisions of this Agreement.

(d) Without limiting the foregoing, when any Confidential Information is no longer needed for the purposes contemplated by this Agreement or any Ancillary Agreement, each Party shall, at its option and as promptly as practicable after receiving a written request from the other Party, either (i) return to such other Party all such information in a tangible form (including all copies thereof and all notes, extracts or summaries based thereon) or (ii) certify to such other Party that the first Party has destroyed such information (and such copies thereof and such notes, extracts or summaries based thereon); provided, that such first Party’s Representatives may retain one (1) copy of such information to the extent required by applicable Law or professional standards, and shall not be required to destroy any such information located in back-up, archival electronic storage; and provided, further, that any such information so retained shall remain subject to the confidentiality and non-use provisions of this Agreement or any Ancillary Agreement.

 

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(e) Each Party acknowledges that it and its respective Subsidiaries may presently have and, following the Distribution Effective Time, may gain access to or possession of confidential or proprietary information of, or personal information relating to, Third Parties (i) that was received under confidentiality or non-disclosure agreements entered into between such Third Parties, on the one hand, and the other Party (or another member of its Group), on the other hand, prior to the Distribution Effective Time; or (ii) that, as between the two Parties, was originally collected by the other Party (or another member of its Group) and that may be subject to and protected by privacy, data protection or other applicable Laws. Each Party agrees that it shall hold, protect and use, and shall cause the other members of its Group and its and their respective Representatives to hold, protect and use, in strict confidence the confidential and proprietary information of, or personal information relating to, Third Parties in accordance with privacy, data protection or other applicable Laws and the terms of any agreements that were either entered into before the Distribution Effective Time or affirmative commitments or representations that were made before the Distribution Effective Time by, between or among the other Party (or other member(s) of its Group), on the one hand, and such Third Parties, on the other hand.

(f) For the avoidance of doubt and notwithstanding any other provision of this Section 7.7, (i) the sharing of Privileged Information shall be governed solely by Section 7.8, and (ii) information that is subject to any confidentiality provision or other disclosure restriction in any Ancillary Agreement shall be governed by the terms of such Ancillary Agreement.

Section 7.8 Privilege Matters.

(a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Distribution Effective Time have been and will be rendered for the benefit of Alkermes and its Subsidiaries, including, as applicable, the members of the Mural Group. Accordingly, with respect to such pre-Distribution services, the Parties agree as follows:

(i) (A) Alkermes shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the Neuroscience Business, whether or not the Privileged Information is in the possession or under the control of a member of the Alkermes Group or the Mural Group and (B) Alkermes shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Alkermes Retained Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Alkermes Group or the Mural Group;

(ii) (A) Mural shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the Oncology Business, whether or not the Privileged Information is in the possession or under the control of a member of the Mural Group or the Alkermes Group and (B) Mural shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Mural Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Mural Group or the Alkermes Group;

(iii) If Alkermes and Mural in good faith do not agree as to whether certain information is Privileged Information, or whether certain Privileged Information is subject to Section 7.8(a)(i) or Section 7.8(a)(ii), then the information shall be treated as Shared Privileged Information subject to Section 7.8(b);

 

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(iv) Mural agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Alkermes (or any member of its Group) may have a Privilege, without the written consent of Alkermes; and

(v) Alkermes agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Mural (or any member of its Group) may have a Privilege, without the written consent of Mural.

(b) The Parties agree that they shall have an equal right with respect to all Privileges related to legal and other professional services that have been and will be provided prior to the Distribution Effective Time not allocated pursuant to Section 7.8(a). With respect to such pre-Distribution services and related Privileged Information (“Shared Privileged Information”), the Parties agree as follows:

(i) Shared Privileged Information shall be subject to a shared Privilege among such Parties involved, or having an interest, in the claims, proceedings, litigation, disputes or other matters at issue;

(ii) No Party may (or cause or permit any member of its Group to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law with respect to Shared Privileged Information, without the written consent of the other Party, which shall not be unreasonably withheld, conditioned or delayed;

(iii) If a dispute arises between or among the Parties or their respective Group members regarding whether a Privilege should be waived to protect or advance the interest of any Party (or members of its Group) with respect to Shared Privileged Information, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party and members of its Group, and shall not unreasonably withhold consent to any request for waiver by the other Party, and each Party specifically agrees that it shall not withhold consent to waive for any purpose except in good faith to protect the legitimate interests of its Group; and

(iv) If, within fifteen (15) Business Days of a Party’s providing a written request to the other Party to waive a Privilege over Shared Privileged Information, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether the Privilege should be waived with respect to such Shared Privileged Information, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance the legitimate interests of its Group, the requesting Party shall provide the objecting Party fifteen (15) Business Days’ written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) Business Days of receipt of such notice to commence proceedings to enjoin such waiver or seek related relief, pursuant to Section 8.2(d) and under applicable Law, shall be deemed full and effective consent to such waiver. In the event proceedings are commenced as described above, the Parties agree that any such Privilege shall not be waived by either Party until the final determination of such dispute.

 

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(c) The Parties agree that Shared Privileged Information shall continue to be held subject to Privilege from disclosure to Third Parties even if adversity of interest may subsequently be discerned or arise between Parties or their respective Group members. Further, in the event a Party or any member of its Group becomes adverse to the other Party or any member of its Group, each Party agrees that it shall not (and shall not cause or permit any member of its Group to) seek to disqualify any law firms who have or have had access to Shared Privileged Information from continuing to represent members of the other Party’s Group, as applicable, solely by having, or having had access to such Shared Privileged Information.

(d) Nothing in this Section 7.8 shall be construed or interpreted to restrict the right or authority of the Parties to enter into any further written agreement concerning Privileged Information.

(e) The transfer of all information pursuant to this Agreement is made in reliance on the agreement of Alkermes or Mural as set forth in Section 7.7 and this Section 7.8, to maintain the confidentiality of Privileged Information, and to assert and maintain any applicable Privilege according to the terms of this Section 7.8. The access to information being granted pursuant to Section 7.2 and Section 7.3, the agreement to provide witnesses and individuals pursuant to Section 7.5, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 and the transfer of Privileged Information between the Parties and the members of their respective Groups pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.

Section 7.9 Conflicts Waiver. Each of the Parties acknowledges, on behalf of itself and each other member of its Group, notwithstanding anything to the contrary contained herein, that each of Alkermes and Mural has retained Goodwin Procter LLP and Arthur Cox LLP (collectively, the “Known Counsel”) to act as its counsel in connection with this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby. Following the Separation, it is expected that Alkermes and Mural will continue to retain Known Counsel in connection with this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, among other matters. Alkermes and Mural hereby agree on behalf of each such Party and each member of its respective Group that Known Counsel may continue to represent any member of the Alkermes Group and the Mural Group, respectively, with respect to such matters. Each of Alkermes and Mural, on behalf of itself and each other member of its Group, agrees to take, and to cause their respective then-Affiliates to take, all steps necessary to implement the intent of this Section 7.9. Each of Alkermes and Mural, on behalf of itself and each other member of its Group, further agrees that each Known Counsel and its respective partners and employees are third party beneficiaries of this Section 7.9.

Section 7.10 Ownership of Information. Any information owned by one Party or any of its Subsidiaries that is provided to a requesting Party pursuant to this Article VII shall be deemed to remain the property of the providing Party. Unless expressly set forth herein, nothing contained in this Agreement shall be construed as granting a license or other rights to any Party with respect to any such information, whether by implication, estoppel or otherwise.

 

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Section 7.11 Other Agreements. The rights and obligations granted under this Article VII are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information set forth in any Ancillary Agreement.

Section 7.12 Data Protection.

(a) The Parties acknowledge and agree that each Party is a Controller with respect to Personal Data included within the Mural Assets transferred between the Parties pursuant to this Agreement (“Separation Personal Data”). Each Party shall comply with its obligations under Data Protection Laws with respect to its Processing of Separation Personal Data received under this Agreement, including ensuring that all necessary transparency information has been provided to the Data Subjects of Separation Personal Data, and all necessary authorizations have been obtained from such Data Subjects to enable its Processing of Separation Personal Data.

(b) The Parties acknowledge that Mural US will Process Separation Personal Data received from Alkermes, in the United States of America, which is a country not deemed adequate for the international transfer of Personal Data by applicable data protection authorities. The details of such Separation Personal Data transferred are as set forth on Schedule 7.12(b).

(c) With respect to the international transfers of Separation Personal Data pursuant to this Agreement, Alkermes and Mural US shall:

(i) comply with the provisions of the EU Controller to Controller Standard Contractual Clauses (or EU SCCs) which are incorporated into this Agreement by reference and are varied as follows for this purpose: (A) for the purposes of Annex I of the EU SCCs, the list of parties section shall be deemed completed with the details of Alkermes (as data exporter) and Mural US (as data importer) and contact information provided by the Parties from time to time pursuant to this Agreement. the “description of transfers” section shall be deemed completed with the details as set forth in Section 7.12(b) of this Agreement, the frequency of the transfer “one-off transfers for the purposes of the Separation”, and the competent supervisory authority is the Irish Data Protection Commission; (B) Annex II (Security Measures) shall be deemed completed with details of the security measures as set forth in Section 7.12(b) of this Agreement; (C) Clause 7 (Docking Clause), which is optional, is included; (D) Clause 11 (Redress) contains an optional clause which is excluded; (E) Clause 13 (Supervision) provides for three alternative options and the first option shall apply; (F) Clause 17 (Governing law) shall be the laws of Ireland; and (G) Clause 18 (Choice of forum and jurisdiction) is amended so that the courts which have jurisdiction are the courts of the EU Member State referenced by Clause 17 (Governing law) as amended above.

 

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(ii) comply with the provisions of the UK IDTA with respect to Separation Personal Data subject to the UK GDPR. The UK IDTA is incorporated into this Agreement by reference and varied as follows for this purpose: (A) Table 1 of the UK IDTA, the date to be included is the date of this Agreement and the details/key contact information of the Parties are as set forth in Section 7.12(c)(i) of this Agreement; (B) Table 2 of the UK IDTA, information about the version of the EU Standard Contractual Clauses, modules and selected clauses which the UK IDTA is appended to shall reference the EU SCCs as varied by Section 7.12(c)(i) of this Agreement; (C) Table 3 of the UK IDTA, Annexes I and II shall be deemed completed with the information corresponding to those annexes as set forth in Section 7.12(c)(i) of this Agreement and as otherwise agreed between the Parties from time to time; (D) Table 4 of the UK IDTA, both the Importer and the Exporter (each as defined therein) may end the UK IDTA in accordance with its terms; and (E) Part 2 Mandatory Clauses of the UK IDTA shall be deemed completed with the following provision “Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the UK Information Commissioner’s Office and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on February 2, 2022, as it is revised under Section 18 of those Mandatory Clauses.”

(d) Definitions. As used in this Section 7.12, the following terms shall have the following meanings:

(i) “Controller” means a party which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.

(ii) “Data Protection Laws” means all Laws and regulations relating to data protection and privacy as applicable to the Parties and/or to the processing of Personal Data under the Agreement, including without limitation, the GDPR, the UK GDPR, the UK Data Protection Act 2018, and any associated implementing legislation and regulations, in each case, as in force and applicable, and as amended, supplemented or replaced from time to time.

(iii) “Data Subject” means an identified or identifiable natural person to whom Personal Data relates.

(iv) “EU Controller to Controller Standard Contractual Clauses” or “EU SCCs” means the Annex to the European Commission’s decision of June 4, 2021 on Standard Contractual Clauses for the transfer of personal data to third countries which do not ensure an adequate level of data protection pursuant to the GDPR with “Module 1” selected (which covers transfers of Personal Data from a Controller to a Processor).

(v) “GDPR” means the EU General Data Protection Regulation 2016/679.

(vi) “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

(vii) “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Related terms such as “Process” and “Processed” shall have corresponding meanings.

 

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(viii) “Separation Personal Data” shall have the meaning ascribed to it in Section 7.12(a).

(ix) “UK GDPR” means the GDPR in such form as incorporated into the laws of the United Kingdom.

(x) “UK IDTA” means the UK International Data Transfer Addendum to the EU Standard Contractual Clauses (version B.1.0) issued by the UK Information Commissioner and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on February 2, 2022 (as it is revised under its Section 18) to facilitate the international transfer of Personal Data in compliance with the UK GDPR.

ARTICLE VIII

DISPUTE RESOLUTION

Section 8.1 Negotiation. A Party seeking resolution of (i) a controversy, dispute or Action arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity or breach of this Agreement or the Ancillary Agreements or otherwise arising out of, or in any way related to, this Agreement or the Ancillary Agreements or the transactions contemplated hereby or thereby, including any Action based on contract, tort, statute or constitution, or (ii) a claim with respect to the inadvertent transfer or omission of an Asset or Liability as contemplated by the definition of “Alkermes Retained Asset,” “Alkermes Retained Liability,” “Mural Asset” or “Mural Liability,” respectively (collectively, “Disputes”), shall provide written notice of such Dispute to the other Party, specifying the terms of such Dispute in reasonable detail (“Dispute Notice”). The appropriate executives of the Parties who have authority to settle the Dispute (or such other individuals designated by the respective executives) shall attempt to resolve the Dispute through good faith negotiation for a reasonable period of time; provided, that such reasonable period shall not, unless otherwise agreed by the Parties in writing, exceed thirty (30) days from the time of receipt by a Party of the Dispute Notice. If the Dispute has not been resolved within fifteen (15) days after receipt of the Dispute Notice, the respective Chief Executive Officers or their respective designees (with full settlement authority) of Alkermes and Mural shall meet in person (or where necessary, by phone) at a mutually acceptable time and, if applicable, place, and thereafter as often as they reasonably deem necessary, to attempt in good faith to resolve the Dispute. Any contractual time period or deadline under this Agreement or any Ancillary Agreement to which such Dispute relates occurring after the Dispute Notice is received shall be tolled from the date in which a dispute is initiated until the conclusion of the arbitration process as outlined in this Article VIII.

Section 8.2 Arbitration.

 

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(a) Claims. Any Dispute that is not resolved pursuant to Section 8.1 within thirty (30) days after receipt of a Dispute Notice, unless such thirty (30) day period is otherwise extended by agreement of the Parties in writing, shall be resolved by final and binding arbitration before a panel of three (3) neutral arbitrators with relevant industry experience (the “Arbitrators”). One (1) Arbitrator shall be chosen by Alkermes and one (1) Arbitrator shall be chosen by Mural within forty-five (45) days of receipt of a Dispute Notice, unless such forty-five (45) day period is otherwise extended by agreement of the Parties in writing. The third (3rd) Arbitrator shall be chosen by mutual agreement of the Arbitrator chosen by Alkermes and the Arbitrator chosen by Mural within fifteen (15) days of the date that the last of such Arbitrators was appointed. The arbitration shall be administered by the International Chamber of Commerce (the “Administrator”) in accordance with its then existing arbitrator rules or procedures regarding commercial or business disputes. The arbitration shall be held in Boston, Massachusetts. The Arbitrators shall complete the arbitration hearing within ninety (90) days after selection of the third (3rd) Arbitrator, subject to extension by written agreement executed by both Parties.

(b) Arbitrators’ Award. The Arbitrators shall, within fifteen (15) days after the conclusion of the arbitration hearing, issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The decision or award rendered by the Arbitrators shall be final, binding, conclusive and non-appealable, and judgment may be entered upon it in accordance with the Laws of the State of Delaware or any other court of competent jurisdiction. The Arbitrators shall be authorized to award compensatory damages, but shall not be authorized (i) to award non-economic damages, such as for emotional distress, pain and suffering or loss of consortium, (ii) to award punitive damages, or (iii) to reform, modify or materially change this Agreement or the Ancillary Agreements; provided, however, that the limitations described in the foregoing clauses (i) and (ii) shall not apply if such damages are statutorily imposed.

(c) Costs. Each Party shall bear its own attorney’s fees, costs and disbursements arising out of the arbitration and the costs of the Arbitrator selected by it, and shall pay an equal share of the fees and costs of the third (3rd) Arbitrator and Administrator; provided, however, that the Arbitrators shall be authorized to determine whether a Party is the prevailing Party, and if so, to award to that prevailing Party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrators.

(d) Injunctive or Other Equity Relief. Nothing contained in this Agreement shall deny any Party the right to seek temporary injunctive relief in the context of a bona fide emergency or prospective irreparable harm in order to maintain the status quo while an arbitration initiated pursuant to Article VIII is pending; provided, however, that any other relief not expressly permitted under this Section 8.2(d) must be pursued in accordance with Section 8.2(a), with all remedies being cumulative to the extent allowed by applicable Law. The Parties further agree that irreparable harm would occur, and thus need not be established, in an action to enforce the confidentiality obligations of Section 7.7 or to resolve a privilege dispute under Section 7.8(b)(iv), and that such action may be brought pursuant to this Section 8.2(d). The Parties further agree that any action brought under this Section 8.2(d) shall be brought exclusively in the courts within the State of Delaware set forth in Section 10.16, and that such courts shall have personal jurisdiction over the Parties in such action.

Section 8.3 Continuity of Service and Performance. Unless otherwise agreed in writing, the Parties shall continue to provide service and honor all other commitments under this Agreement, any Shared Contract and each Ancillary Agreement during a Dispute with respect to all matters not subject to such Dispute.

 

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ARTICLE IX

INSURANCE MATTERS

Section 9.1 Rights to Alkermes Policies.

(a) Mural acknowledges and agrees that, from and after the Distribution Effective Time, except as expressly provided in this Agreement or any Ancillary Agreement, neither Mural nor any member of the Mural Group shall have any rights to or under any Policies of Alkermes, other than any insurance Policies acquired prior to the Distribution Effective Time, including any renewal or tail period thereof, directly by and in the name of Mural or a member of the Mural Group or as expressly provided in Section 6.5 or this Article IX. For the avoidance of doubt, Mural acknowledges and agrees that the Mural Group and not any member of the Alkermes Group shall be responsible for establishing any and all insurance programs covering the Mural Group for its activities after the Distribution Effective Time as may be required to comply with the Mural Group’s contractual obligations and such other insurance Policies required by Law or as necessary or appropriate to operate the Oncology Business, including with respect to general liability, product liability, workers’ compensation, directors’ and officers’ liability and fiduciary liability.

(b) The Parties acknowledge that, as of the Distribution Date, Alkermes’ director and officer liability insurance policies will continue to provide insurance coverage for directors and officers of Mural who served as directors or officers of Alkermes or any of its Subsidiaries prior to the Distribution Effective Time, but such coverage shall only extend to acts occurring prior to the Distribution Effective Time that would have been covered by Alkermes’ director and officer liability insurance policy if such individual remained a director or officer of Alkermes. Such coverage shall also extend to employees with respect to securities law claims only. Alkermes agrees not to terminate or amend this coverage in a manner materially adverse to these individuals.

(c) This Agreement shall not be considered as an attempted assignment of any insurance Policy or as a contract of insurance and shall not be construed to waive any right or remedy of any member of the Alkermes Group in respect of any of the Alkermes insurance Policies and programs or any other contract or policy of insurance. Except as set forth in Section 9.1(b), the Alkermes Group may, at any time, without liability or obligation to any member of the Mural Group, amend, commute, terminate, buy-out, extinguish liability under or otherwise modify any insurance Policies (and claims of the Mural Group pursuant to this Article IX shall be subject to any such amendments, commutations, terminations, buy-outs, extinguishments and modifications).

(d) No member of the Alkermes Group shall have any obligation to secure extended reporting for any claims under any of the Alkermes Group’s claims-made or occurrence-reported liability policies for any acts or omissions by any member of the Mural Group occurring prior to the Distribution Effective Time.

 

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Section 9.2 Claims. Nothing in this Article IX will be construed to limit or otherwise alter in any way the indemnity obligations of the Parties, including (i) with respect to the Mural Group, Mural Liabilities, (ii) with respect to the Alkermes Group, Alkermes Retained Liabilities and (iii) those created by this Agreement, by operation of law or otherwise. The Parties acknowledge that Alkermes has used its commercially reasonable efforts to structure its director and officer insurance Policies consistent with such indemnity obligations.

ARTICLE X

MISCELLANEOUS

Section 10.1 Complete Agreement; Construction; Enforceability.

(a) This Agreement, including the Exhibits and Schedules, and the Ancillary Agreements shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, course of dealings and writings with respect to such subject matter. In the event of any inconsistency between this Agreement and any Schedule hereto, the Schedule shall prevail unless the relevant term or provision in the body of this Agreement expressly provides that the term or provision in it is to take precedence over the term or provision in the Schedule. In the event and to the extent that there shall be a conflict or inconsistency between the provisions of this Agreement and the provisions of any Ancillary Agreement, this Agreement shall control (except with respect to the Tax Matters Agreement, the IP License Agreement and the Employee Matters Agreement, in which case such Ancillary Agreement shall control). Except as expressly set forth in this Agreement or any Ancillary Agreement: (i) all matters to the extent relating to Taxes and Tax Returns of the Parties and their respective Subsidiaries shall be governed exclusively by the Tax Matters Agreement; and (ii) for the avoidance of doubt, in the event of any conflict between this Agreement or any Ancillary Agreement, on the one hand, and the Tax Matters Agreement, on the other hand, with respect to such matters, the terms and conditions of the Tax Matters Agreement shall govern.

(b) Alkermes represents on behalf of itself and each other member of the Alkermes Group, and Mural represents on behalf of itself and each other member of the Mural Group, as follows:

(i) each such Person has the requisite corporate or other power and authority and has taken all corporate or other action necessary in order to execute, deliver and perform this Agreement and each Ancillary Agreement to which it is a party and to consummate the transactions contemplated hereby and thereby; and

(ii) this Agreement and each Ancillary Agreement to which it is a party has been (or, in the case of any Ancillary Agreement, will be on or prior to the Distribution Date) duly executed and delivered by it and constitutes, or will constitute, a valid and binding agreement of it enforceable in accordance with its terms.

Section 10.2 Transaction Agreements. Except as expressly set forth herein, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the other Transaction Agreements.

 

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Section 10.3 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to each of the Parties. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

Section 10.4 Survival of Agreements. Except as otherwise contemplated by this Agreement or any Ancillary Agreement, all covenants and agreements of the Parties (including the representations and warranties of the Parties set forth in Section 10.1 hereof) contained in this Agreement and each Ancillary Agreement shall survive the Distribution Effective Time and remain in full force and effect in accordance with their applicable terms.

Section 10.5 Fees, Costs and Expenses.

(a) Except as otherwise agreed to in writing by the Parties, all out-of-pocket fees, costs and expenses incurred at or prior to the Distribution Effective Time in connection with, and as required by, the preparation, execution, delivery and implementation of this Agreement and any Ancillary Agreement, the Distribution Disclosure Documents and the consummation of the transactions contemplated hereby and thereby, including the Separation, shall be borne and paid by Alkermes.

(b) Except as otherwise expressly provided in this Agreement (including this Section 10.5) or any Ancillary Agreement, as otherwise agreed to in writing by the Parties, each Party shall bear its own out-of-pocket fees, costs and expenses incurred or accrued after the Distribution Effective Time; provided, however, that, except as otherwise expressly provided in this Agreement, any fees, costs and expenses incurred in obtaining any Consents or novation from a Third Party in connection with the Transfer to or Assumption by a Party or its Subsidiary of any Assets or Liabilities in connection with the Separation shall be borne by the Party or its Subsidiary to which such Assets are being Transferred or which is Assuming such Liabilities; and provided, further that Alkermes shall bear the expense of all recordation of Intellectual Property Transferred at or prior to the Distribution Effective Time pursuant to this Agreement, whether such recordation occurs prior to or after the Distribution Effective Time.

(c) With respect to any post-Distribution expenses incurred pursuant to a request for further assurances granted under Section 2.11, the Parties agree that any and all fees, costs and expenses incurred by either Party shall be borne and paid by the requesting Party; it being understood that no Party shall be obliged to incur any Third Party accounting, consulting, advisor, banking or legal fees, costs or expenses, and the requesting Party shall not be obligated to pay such fees, costs or expenses, unless such fee, cost or expense shall have had the prior written approval of the requesting Party.

(d) Notwithstanding the foregoing, each Party shall be responsible for paying its own fees, costs and expenses for which it is designated as the responsible party on Schedule 10.5(d).

 

58


Section 10.6 Notices. All notices, requests, claims, demands and other communications under this Agreement and, to the extent applicable and unless otherwise provided therein, under each of the Ancillary Agreements shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by email with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.6):

To Alkermes:

Alkermes plc

c/o Alkermes, Inc.

900 Winter Street

Waltham, Massachusetts 02451

Attn: David Gaffin

Email:

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

Goodwin Procter LLP

100 Northern Avenue

Boston, Massachusetts 02210

Attn: Robert E. Puopolo

Blake Liggio

Caitlin Tompkins

Email: rpuopolo@goodwinlaw.com

bliggio@goodwinlaw.com

ctompkins@goodwinlaw.com

To Mural:

Mural Oncology plc

c/o Mural Oncology, Inc.

852 Winter Street

Waltham, Massachusetts 02451

Attn: Maiken Keson-Brookes

Email:

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

Goodwin Procter LLP

100 Northern Avenue

Boston, Massachusetts 02210

Attn: Robert E. Puopolo

Blake Liggio

Caitlin Tompkins

 

59


  Email:

rpuopolo@goodwinlaw.com

bliggio@goodwinlaw.com

ctompkins@goodwinlaw.com

Section 10.7 Waivers. The delay or failure of either Party to exercise or enforce any of its rights under this Agreement will not constitute, or be deemed to be, a waiver of those rights, nor will any single or partial exercise of any such rights preclude any other or further exercise thereof or the exercise of any other right. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party against which it is being enforced.

Section 10.8 Assignment. No Party may assign any rights or delegate any obligations arising under this Agreement, in whole or in part, directly or indirectly, without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), and any attempt to so assign any rights or delegate any obligations arising under this Agreement without such consent shall be void. Notwithstanding the foregoing, no such consent shall be required for any such assignment or delegation (i) with respect to Alkermes, to a Subsidiary of Alkermes (so long as such Subsidiary remains a Subsidiary of Alkermes), (ii) with respect to Mural, to a Subsidiary of Mural (so long as such Subsidiary remains a Subsidiary of Mural) or (iii) to a bona fide Third Party in connection with a merger, reorganization, consolidation or the sale of all or substantially all the assets of a Party so long as the resulting, surviving or transferee entity assumes all the obligations of the assigning Party by operation of Law or pursuant to an agreement in form and substance reasonably satisfactory to the non-assigning Party; provided, however, that in the case of each of the preceding clauses (i) and (ii), no assignment permitted by this Section 10.8 shall release the assigning Party from liability for the full performance of its obligations under this Agreement.

Section 10.9 Successors and Assigns. The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors (whether by merger, acquisition of assets or otherwise) and permitted assigns.

Section 10.10 Termination and Amendment. This Agreement (including Article VI hereof) may be terminated, modified or amended, and the Distribution may be amended, modified or abandoned, at any time prior to the Distribution Effective Time by and in the sole and absolute discretion of Alkermes without the approval of Mural or the shareholders of Alkermes. In the event of such termination, no Party shall have any liability of any kind to the other Party or any other Person by reason of such termination. After the Distribution Effective Time, this Agreement may not be terminated, modified or amended except by an agreement in writing signed by Alkermes and Mural.

Section 10.11 Payment Terms.

(a) Except as set forth in Article VI or as otherwise expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount to be paid or reimbursed by a Party (and/or a member of such Party’s Group) to the other Party (and/or a member of such other Party’s Group) under this Agreement shall be paid or reimbursed hereunder within sixty (60) days after presentation of an invoice or a written demand therefor, in either case setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.

 

60


(b) Except as set forth in Article VI or as expressly provided to the contrary in this Agreement or in any Ancillary Agreement, any amount not paid when due pursuant to this Agreement (and any amount billed or otherwise invoiced or demanded and properly payable that is not paid within sixty (60) days of such bill, invoice or other demand) shall bear interest at a rate per annum equal to the Prime Rate, from time to time in effect, plus two percent (2%), calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment.

(c) Without the consent of the Party receiving any payment under this Agreement specifying otherwise, all payments to be made by either Alkermes or Mural under this Agreement shall be made in U.S. dollars. Except as expressly provided herein, any amount which is not expressed in U.S. dollars shall be converted into U.S. dollars by using the exchange rate published on Bloomberg at 5:00 p.m., Eastern time, on the day before the relevant date, or in The Wall Street Journal, Eastern Edition, on such date if not so published on Bloomberg. Except as expressly provided herein, in the event that any indemnification payment required to be made hereunder or under any Ancillary Agreement may be denominated in a currency other than U.S. dollars, the amount of such payment shall be converted into U.S. dollars on the date notice of the claim is given to the Indemnifying Party.

Section 10.12 Subsidiaries. Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any entity that becomes a Subsidiary of such Party at or after the Distribution Effective Time, in each case to the extent such Subsidiary remains a Subsidiary of the applicable Party.

Section 10.13 Third Party Beneficiaries. Except (i) as provided in Article VI relating to Indemnitees and for the releases under Section 6.1 of any Person as provided therein and (ii) as specifically provided in Section 7.9 hereof or in any Ancillary Agreement, this Agreement is solely for the benefit of the Parties and shall not be deemed to confer upon any Person other than the Parties any remedy, claim, liability, reimbursement, cause of Action or other right beyond any that exist without reference to this Agreement.

Section 10.14 Titles and Headings. Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

Section 10.15 Schedules.

(a) The Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.

(b) Subject to the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed), each Party shall be entitled to update the Schedules from and after the date hereof until the Distribution Effective Time.

 

61


Section 10.16 Governing Law. This Agreement will be governed by, construed and interpreted in accordance with the Laws of the State of Delaware, without reference to principles of conflicts of Laws. Subject to Section 8.2, each Party irrevocably consents to the exclusive jurisdiction, forum and venue of the Delaware Court of Chancery (and if the Delaware Court of Chancery shall be unavailable, any Delaware State court or the federal court sitting in the State of Delaware) over any and all claims, disputes, controversies or disagreements between the Parties under or related to this Agreement or any of the transactions contemplated hereby, including their execution, performance or enforcement, whether in contract, tort or otherwise. Each of the Parties hereby agrees that it shall not assert, and shall hereby waive, any claim or right or defense that it is not subject to the jurisdiction of such courts, that the venue is improper, that the forum is inconvenient or any similar objection, claim or argument.

Section 10.17 Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

Section 10.18 Public Announcements. From and after the Distribution Effective Time, Alkermes and Mural shall consult with each other before issuing, and each shall give the other the opportunity to review and comment upon, that portion of any press release or other public statement, including a statement made to its investors, that relates to the transactions contemplated by this Agreement or the Ancillary Agreements, and shall not issue any such press release or make any such public statement prior to such consultation, except (a) as may be required by applicable Law, court process or obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system; (b) for disclosures made that are substantially identical to disclosure contained in any Distribution Disclosure Document or any prior written public statement not made in violation of this Section 10.18; or (c) with respect to a Party, for disclosure concerning the ordinary course operation of such Party’s business (other than any Dispute), notwithstanding that the disclosure may relate to arrangements under the Transition Services Agreements (including the exhibits and schedules thereto).

Section 10.19 Interpretation. The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.

Section 10.20 No Duplication; No Double Recovery. Nothing in this Agreement or any Ancillary Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances (including with respect to the rights, entitlements, obligations and recoveries that may arise out of one or more of Section 6.2, Section 6.3, Section 6.4, Section 6.5 and Section 6.6).

 

62


Section 10.21 No Admission of Liability. The allocation of Assets and Liabilities herein (including on the Schedules hereto) is solely for the purpose of allocating such Assets and Liabilities between Alkermes and Mural and is not intended as an admission of liability or responsibility for any alleged Liabilities vis-à-vis any Third Party.

[Signature Page Follows]

 

63


IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

 

ALKERMES PLC
By:  

/s/ Richie Paul

  Name: Richie Paul
  Title: Board Designated Signatory
MURAL ONCOLOGY PLC
By:  

/s/ Caroline Loew

  Name: Caroline Loew, Ph.D.
  Title: Director and Secretary
Solely with respect to Article II, Section 4.5 and Section 7.12:
MURAL ONCOLOGY, INC.
By:  

/s/ Caroline Loew

  Name: Caroline Loew, Ph.D.
  Title: President

 

[Signature Page to Separation Agreement]

EX-3.1

Exhibit 3.1

Companies Act 2014

A PUBLIC LIMITED COMPANY

 

 

CONSTITUTION

of

MURAL ONCOLOGY PUBLIC LIMITED COMPANY

(Amended by Special Resolution dated 26 October 2023)

 

 

Incorporated 31 May 2017

 

 

 


Companies Act 2014

A PUBLIC LIMITED COMPANY

MEMORANDUM OF ASSOCIATION

of

MURAL ONCOLOGY PUBLIC LIMITED COMPANY

 

1.

The name of the Company is Mural Oncology public limited company.

 

2.

The registered office of the Company shall be at 10 Earlsfort Terrace, Dublin 2, Ireland or at such other place as the Board may from time to time decide.

 

3.

The Company is a public limited company deemed to be a PLC to which Part 17 of the Companies Act 2014 applies.

 

4.

The objects for which the Company is established are:

 

  4.1

 

  (a)

To carry on all or any of the businesses of manufacturers, buyers, sellers, and distributing agents of and dealers in all kinds of patent, pharmaceutical, medicinal, and medicated preparations, patent medicines, drugs, herbs, and of and in pharmaceutical, medicinal, proprietary and industrial preparations, compounds, and articles of all kinds; and to manufacture, make up, prepare, buy, sell, and deal in all articles, substances, and things commonly or conveniently used in or for making up, preparing, or packing any of the products in which the Company is authorised to deal, or which may be required by customers of or persons having dealings with the Company.

 

  (b)

To establish, maintain and operate laboratories for the purpose of carrying on chemical, physical and other research in medicine, chemistry, industry or other unrelated or related fields.

 

  (c)

To carry on the business of a holding company and to co-ordinate the administration, finances and activities of any subsidiary companies or associated companies, to do all lawful acts and things whatever that are necessary or convenient in carrying on the business of such a holding company and in particular to carry on in all its branches the business of a management services company, to act as managers and to direct or coordinate the management of other companies or of the business, property and estates of any company or person and to undertake and carry out all such services in connection therewith as may be deemed expedient by the Company’s Board and to exercise its powers as a shareholder of other companies.

 

  4.2

To acquire and hold shares, stocks, debenture stock, bonds, mortgages, obligations and securities and interests of any kind issued or guaranteed by any company, corporation or undertaking of whatever nature and wherever constituted or carrying on business, whether in Ireland or elsewhere, and to vary, transpose, dispose of or otherwise deal with, from time to time as may be considered expedient, any of the Company’s investments for the time being.


  4.3

To acquire any such shares and other securities as are mentioned in the preceding paragraph by subscription, syndicate participation, tender, purchase, exchange or otherwise and to subscribe for the same, either conditionally or otherwise, and to guarantee the subscription thereof and to exercise and enforce all rights and powers conferred by or incident to the ownership thereof.

 

  4.4

To lease, acquire by purchase or otherwise and hold, sell, dispose of and deal in real property and in personal property of all kinds wheresoever situated.

 

  4.5

To enter into any guarantee, contract of indemnity or suretyship and to assure, support or secure with or without consideration or benefit the performance of any obligations of any person or persons and to guarantee the fidelity of individuals filling or about to fill situations of trust or confidence.

 

  4.6

To acquire or undertake the whole or any part of the business, property and liabilities of any person carrying on any business that the Company is authorised to carry on.

 

  4.7

To apply for, register, purchase, lease, acquire, hold, use, control, licence, sell, assign or dispose of patents, patent rights, copyrights, trade marks, formulae, licences, inventions, processes, distinctive marks and similar rights.

 

  4.8

To enter into partnership or into any arrangement for sharing of profits, union of interests, co-operation, joint venture, reciprocal concession or otherwise with any person carrying on or engaged in or about to carry on or engage in any business or transaction that the Company is authorised to carry on or engage in or any business or transaction capable of being conducted so as to benefit the Company.

 

  4.9

To take or otherwise acquire and hold securities in any other body corporate having objects altogether or in part similar to those of the Company or carrying on any business capable of being conducted so as to benefit the Company.

 

  4.10

To lend money to any employee or to any person having dealings with the Company or with whom the Company proposes to have dealings or to any other body corporate any of whose shares are held by the Company.

 

  4.11

To apply for, secure or acquire by grant, legislative enactment, assignment, transfer, purchase or otherwise and to exercise, carry out and enjoy any charter, licence, power, authority, franchise, concession, right or privilege, that any government or authority or any body corporate or other public body may be empowered to grant, and to pay for, aid in and contribute toward carrying it into effect and to assume any liabilities or obligations incidental thereto and to enter into any arrangements with any governments or authorities, supreme, municipal, local or otherwise, that may seem conducive to the Company’s objects or any of them.

 

  4.12

To perform any duty or duties imposed on the Company by or under any enactment and to exercise any power conferred on the Company by or under any enactment.

 

  4.13

To incorporate or cause to be incorporated any one or more subsidiaries of the Company (within the meaning of the Companies Act 2014) for the purpose of carrying on any business.


  4.14

To establish and support or aid in the establishment and support of associations, institutions, funds or trusts for the benefit of employees, directors and/or consultants or former employees, directors and/or consultants of the Company or its predecessors or any of its subsidiary or associated companies, or the dependants or connections of such employees, directors and/or consultants or former employees, directors and/or consultants and grant gratuities, pensions and allowances, including the establishment of share option schemes, enabling employees, directors and/or consultants of the Company or other persons aforesaid to become shareholders in the Company, or otherwise to participate in the profits of the Company upon such terms and in such manner as the Company thinks fit, and to make payments towards insurance or for any object similar to those set forth in this paragraph.

 

  4.15

To establish and contribute to any scheme for the purchase by trustees of Shares in the Company to be held for the benefit of the Company’s employees or the employees of any of its subsidiary or associated companies and to lend or otherwise provide money to the trustees of such schemes or the Company’s employees or the employees of any of its subsidiary or associated companies to enable them to purchase Shares of the Company.

 

  4.16

To grant bonuses to any person or persons who are or have been in the employment of the Company or any of its subsidiary or associated companies or any person or persons who are or have been directors of, or consultants to, the Company or any of its subsidiary or associated companies.

 

  4.17

To establish any scheme or otherwise to provide for the purchase by or on behalf of customers of the Company of shares in the Company.

 

  4.18

To subscribe or guarantee money for charitable, benevolent or educational objects or for any exhibition or for any public, general or useful objects.

 

  4.19

To promote any company for the purpose of acquiring or taking over any of the property and liabilities of the Company or for any other purpose that may benefit the Company.

 

  4.20

To purchase, lease, take in exchange, hire or otherwise acquire any personal property and any rights or privileges that the Company considers necessary or convenient for the purposes of its business.

 

  4.21

To construct, maintain, alter, renovate and demolish any buildings or works necessary or convenient for its objects.

 

  4.22

To construct, improve, maintain, work, manage, carry out or control any roads, ways, tramways, branches or sidings, bridges, reservoirs, watercourses, wharves, factories, warehouses, electric works, shops, stores and other works and conveniences that may advance the interests of the Company and contribute to, subsidise or otherwise assist or take part in the construction, improvement, maintenance, working, management and carrying out of control thereof.

 

  4.23

To raise and assist in raising money for, and aid by way of bonus, loan, promise, endorsement, guarantee or otherwise, any person and guarantee the performance or fulfilment of any contracts or obligations of any person, and in particular guarantee the payment of the principal of and interest on the debt obligations of any such person.

 

  4.24

To guarantee, support, secure, whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property and assets (both present and future) and uncalled capital of the Company, or by both such methods, the performance of the 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 the Companies Act 2014, or a subsidiary as therein defined of any such holding company or otherwise associated by the Company in business.

 

  4.25

To borrow or secure the payment of money in such manner as the Company shall think fit, and in particular by the issue of debentures, debenture stocks, bonds, obligations and securities of all kinds, either perpetual or terminable and either redeemable or otherwise and to secure the repayment of any money borrowed, raised or owing by trust deed, mortgage, charge, or lien upon the whole or any part of the Company’s property or assets (whether present or future) including its uncalled capital, and also by a similar trust deed, mortgage, charge or lien to secure and guarantee the performance by the Company of any obligation or liability it may undertake.

 

  4.26

To engage in currency exchange, interest rate and/or commodity or index linked transactions (whether in connection with or incidental to any other contract, undertaking or business entered into or carried on by the Company or whether as an independent object or activity) including, but not limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars, commodity or index linked swaps and any other foreign exchange, interest rate or commodity or index linked arrangements and such other instruments as are similar to or derive from any of the foregoing whether for the purpose of making a profit or avoiding a loss or managing a currency or interest rate exposure or any other purpose and to enter into any contract for and to exercise and enforce all rights and powers conferred by or incidental, directly or indirectly, to such transactions or termination of any such transactions.

 

  4.27

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 of 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.

 

  4.28

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

 

  4.29

To sell, lease, exchange or otherwise dispose of the undertaking of the Company or any part thereof as an entirety or substantially as an entirety for such consideration as the Company thinks fit.

 

  4.30

To sell, improve, manage, develop, exchange, lease, dispose of, turn to account or otherwise deal with the property of the Company in the ordinary course of its business.

 

  4.31

To adopt such means of making known the products of the Company as may seem expedient, and in particular by advertising, by purchase and exhibition of works of art or interest, by publication of books and periodicals and by granting prizes and rewards and making donations.

 

  4.32

To cause the Company to be registered and recognised in any foreign jurisdiction, and designate persons therein according to the laws of that foreign jurisdiction or to represent the Company and to accept service for and on behalf of the Company of any process or suit.


  4.33

To allot and issue fully-paid shares of the Company in payment or part payment of any property purchased or otherwise acquired by the Company or for any past services performed for the Company.

 

  4.34

To distribute among the Members of the Company in cash, kind, specie or otherwise as may be resolved, by way of dividend, bonus or in any other manner considered advisable, any property of the Company, but not so as to decrease the capital of the Company unless the distribution is made for the purpose of enabling the Company to be dissolved or the distribution, apart from this paragraph, would be otherwise lawful.

 

  4.35

To promote freedom of contract, and to resist, insure against, counteract and discourage interference therewith, to join any lawful federation, union or association or do any other lawful act or thing with a view to preventing or resisting directly or indirectly any interruption of or interference with the Company’s or any other trade or business or providing or safeguarding against the same, or resisting strike, movement or organisation, which may be thought detrimental to the interests or opposing any of the Company or its employees and to subscribe to any association or fund for any such purposes.

 

  4.36

To make or receive gifts by way of capital contribution or otherwise.

 

  4.37

To establish agencies and branches.

 

  4.38

To take or hold mortgages, hypothecations, liens and charges to secure payment of the purchase price, or of any unpaid balance of the purchase price, of any part of the property of the Company of whatsoever kind sold by the Company, or for any money due to the Company from purchasers and others and to sell or otherwise dispose of any such mortgage, hypothec, lien or charge.

 

  4.39

To pay all costs and expenses of or incidental to the incorporation and organization of the Company.

 

  4.40

To invest and deal with the monies of the Company not immediately required for the objects of the Company in such manner as may be determined.

 

  4.41

To do any of the things authorised by this memorandum as principals, agents, contractors, trustees or otherwise, and either alone or in conjunction with others.

 

  4.42

To do all such other things as are incidental or conducive to the attainment of the objects and the exercise of the powers of the Company.

The objects set forth in any sub-clause of this clause shall be regarded as independent objects and shall not, except, where the context expressly so requires, be in any way limited or restricted by reference to or inference from the terms of any other sub-clause, or by the name of the Company. None of such sub-clauses or the objects therein specified or the powers thereby conferred shall be deemed subsidiary or auxiliary merely to the objects mentioned in the first sub-clause of this clause, but the Company shall have full power to exercise all or any of the powers conferred by any part of this clause in any part of the world notwithstanding that the business, property or acts proposed to be transacted, acquired or performed do not fall within the objects of the first sub-clause of this clause.


5.

The liability of each Member is limited to the amount from time to time unpaid on such Member’s Shares.

 

6.

The authorised share capital of the Company is €25,000 and US$ 5,000,000 divided into 25,000 ordinary shares of €1.00 each, 450,000,000 ordinary shares of US$0.01 each and 50,000,000 undesignated preferred shares of US$0.01 each.

 

7.

The shares forming the capital, increased or reduced, may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended articles of association and regulations of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s articles of association for the time being.

 

8.

Capitalised terms that are not defined in this memorandum of association bear the same meaning as those given in the articles of association of the Company.


Companies Act 2014

A PUBLIC LIMITED COMPANY

ARTICLES OF ASSOCIATION

of

MURAL ONCOLOGY PUBLIC LIMITED COMPANY

(amended by Special Resolution dated 26 October 2023 )

PRELIMINARY

 

1.

The provisions set out in these articles of association shall constitute the whole of the regulations applicable to the Company and no “optional provision” as defined by section 1007(2) of the Companies Acts (with the exception of sections 83 and 84) shall apply to the Company.

 

2.

 

  2.1

In these Articles:

Address” includes, without limitation, any number or address used for the purposes of communication by way of electronic mail or other electronic communication;

Adoption Date” means 26 October 2023;

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 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;

Available Director Positions” shall have the meaning given to such term in Article 155.2;

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 Act 2014, all statutory instruments which are to be read as one with, or construed or read together as one with, the Companies Acts and every statutory modification and re-enactment thereof for the time being in force;

Company” means the above-named company;


contested election” shall have the meaning given to such term in Article 155.2;

Court” means the Irish High Court;

Director Nominees” shall have the meaning given to such term in Article 155.2;

Directors” means the directors for the time being of the Company;

dividend” includes interim dividends and bonus dividends;

Dividend Periods” shall have the meaning given to such term in Article 17.2;

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;

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 102;

IAS Regulation” means Regulation (EC) No. 1606/2002 of the European Parliament and of the Council of 19 July 2002 on the application of international accounting standards;

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 Companies Acts;

Ordinary Resolution” means an ordinary resolution of the Company’s Members within the meaning of the Companies Acts;

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 the Companies Acts;

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 as secretary of the Company and includes any Assistant Secretary and any person appointed by the Board to perform any or all of 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; and

Special Resolution” means a special resolution of the Company’s Members within the meaning the Companies Acts.

 

  2.2

In the Articles:

 

  (a)

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

 

  (b)

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;

 

  (c)

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

 

  (d)

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

 

  (e)

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;

 

  (f)

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;

 

  (g)

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

 

  (h)

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.

The authorised share capital of the Company is €25,000 and US$5,000,000 divided into 25,000 deferred shares of €1.00 each, 450,000,000 ordinary shares of US$0.01 each and 50,000,000 undesignated preferred shares of US$0.01 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 does not make specific provision, as the Board may from time to time determine.


5.

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 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 the Companies Acts, 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.

 

6.

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.

 

7.

Subject to the provisions of the Companies Acts and the other provisions of this Article 7, the Company may:

 

  7.1

pursuant the Companies Acts, 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;

 

  7.2

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;

 

  7.3

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 the Companies Acts, 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 the Companies Acts) and may reissue any such Shares as shares of any class or classes or cancel them; or

 

  7.4

pursuant to the Companies Acts, 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 the Companies Acts.

 

8.

The Company may issue bearer instruments in accordance with the Companies Acts.

 

9.

Without prejudice to any special rights previously conferred on the holders of any existing Shares or class of Shares or to the authority conferred on the Directors pursuant to Article 17 to issue the preferred shares, any Share in the Company may be issued with such preferred or deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise, as the Company may from time to time by Ordinary Resolution determine.


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.

 

11.

The Directors are, for the purposes of section 1021 of the Companies Acts, generally and unconditionally authorised to exercise all powers of the Company to allot and issue relevant securities (as defined by the said section 1021) 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 the Companies Acts and held as treasury shares and this authority shall expire five years from the Adoption Date. The Company may before the expiry of such authority make an offer or agreement which would or might require relevant securities to be allotted after such expiry and the Directors may allot relevant securities in pursuance of such an offer or agreement notwithstanding that the authority hereby conferred has expired.

 

12.

The Directors are hereby empowered pursuant to sections 1022 and 1023 of the Companies Acts to allot equity securities within the meaning of the said section 1023 of the Companies Acts for cash pursuant to the authority conferred by Article 11 as if section 1022 of the said Companies Acts did not apply to any such allotment and this authority shall expire five years from the Adoption Date. The Company may before the expiry of such authority make an offer or agreement which would or might require equity securities to be allotted for cash after such expiry and the Directors may allot equity securities for cash in pursuance of such an offer or agreement as if the power conferred by this Article 12 had not expired.

ORDINARY SHARES

 

13.

The holders of the ordinary shares shall be:

 

  13.1

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

 

  13.2

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

 

  13.3

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 his/her name in the Register of Members, both in accordance with the relevant provisions of these Articles.

The rights attaching to the ordinary shares may be subject to the terms of issue of any series or class of preferred share allotted by the Directors from time to time in accordance with Article 17.

 

14.

Unless the Board specifically elects to treat such acquisition as a purchase for the purposes of the Companies Acts, 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 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 the Companies Acts.


15.

All ordinary shares shall rank pari passu with each other in all respects.

DEFERRED SHARES

 

16.

The deferred shares (i) do not convey on the holder the right to be paid a dividend or to receive notice of or to attend, vote or speak at any meeting of Members in respect of those Shares, and (ii) confer the right, on a return of capital, on a winding up or otherwise, only to repayment of the nominal amount paid up on the Deferred Shares and only after repayment in full of the ordinary shares and any preferred shares.

PREFERRED SHARES

 

17.

The Directors are authorised to issue all or any of the authorised but unissued preferred shares from time to time in one or more classes or series, and to fix for each such class or series such voting powers (full or limited or without voting powers), designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions thereof as are stated and expressed, or in any resolution or resolutions providing for the issue of such class or series adopted by the Board as hereinafter provided, including, without limitation, and subject to the Memorandum and Articles and applicable law, the authority to provide that any such class or series may be:

 

  17.1

redeemable at the option of the Company, or the Members, or both, with the manner of the redemption to be set by the Board, and redeemable at such time or times, including upon a fixed date, and at such price or prices;

 

  17.2

entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such conditions at such times and in respect of such dividend periods (the “Dividend Periods”), and payable in preference to, or in such relation to, the dividends payable on any other class or classes of shares or any other series;

 

  17.3

entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Company; or

 

  17.4

convertible into, or exchangeable for, shares of any other class or classes of shares, or of any other series of the same or any other class or classes of shares, of the Company at such price or prices or at such rates of exchange and with such adjustments as the Directors determine,

which rights and restrictions may be as stated in such resolution or resolutions of the Directors as determined by them in accordance with this Article 17. The Board may at any time before the allotment of any preferred share by further resolution in any way amend the designations, preferences, rights, qualifications, limitations or restrictions, or vary or revoke the designations of such preferred shares.

Notwithstanding the fixing of the number of preferred shares constituting a particular series upon the issuance thereof, the Board at any time thereafter may authorise the issuance of additional preferred shares of the same series subject always to the Companies Acts, the Memorandum and these Articles.

The rights conferred upon a Member holding any pre-existing shares in the share capital of the Company shall be deemed not to be varied by the creation, issue and allotment of preferred shares in accordance with this Article 17.


18.

No dividend shall be declared and set apart for payment on any series of preferred shares in respect of any Dividend Period unless there shall likewise be or have been paid, or declared and set apart for payment, on all preferred shares of each other series entitled to cumulative dividends at the time outstanding that rank senior or equally as to dividends with the series in question, dividends rateably in accordance with the sums which would be payable on the said preferred shares through the end of the last preceding Dividend Period if all dividends were declared and paid in full.

 

19.

If, upon the winding up of the Company, the assets of the Company distributable among the holders of any one or more series of preferred shares which (i) are entitled to a preference over the holders of the ordinary shares upon such winding up, and (ii) rank equally in connection with any such distribution, shall be insufficient to pay in full the preferential amount to which the holders of such preferred shares shall be entitled, then such assets, or the proceeds thereof, shall be distributed among the holders of each such series of the preferred shares rateably in accordance with the sums which would be payable on such distribution if all sums payable were discharged in full.

ISSUE OF WARRANTS

 

20.

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

 

21.

Unless otherwise provided for by the Board or the rights attaching to or by the terms of issue of any particular Shares, or to the extent required by any stock exchange, depository, or any operator of any clearance or settlement system, no person whose name is entered as a Member in the Register of Members shall be entitled to receive a share certificate for all his/her Shares of each class held by him/her (nor on transferring a part of holding, to a certificate for the balance).

 

22.

Any share certificate, if issued, shall specify the number of Shares in respect of which it is issued and the amount paid thereon or the fact that they are fully paid, as the case may be, and may otherwise be in such form as shall be determined by the Board. Such certificates may be under Seal. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. The name and address of the person to whom the Shares represented thereby are issued, with the number of Shares and date of issue, shall be entered in the Register of Members of the Company. All certificates surrendered to the Company for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of Shares shall have been surrendered and cancelled. The Board may authorise certificates to be issued with the seal and authorised signature(s) affixed by some method or system of mechanical process. In respect of a Share or Shares held jointly by several persons, the Company shall not be bound to issue a certificate or certificates to each such person, and the issue and delivery of a certificate or certificates to one of several joint holders shall be sufficient delivery to all such holders.

 

23.

If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating such evidence, as the Board may prescribe, and, in the case of defacement or wearing out, upon delivery of the old certificate.


REGISTER OF MEMBERS

 

24.

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

 

25.

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.

 

26.

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 of 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.

 

27.

The Company shall not be bound to register more than four persons as joint holders of any Share. 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

 

28.

All transfers of Shares may be effected by an instrument of transfer in the usual common form or in such other form as the Board may approve. All instruments of transfer must be left at the registered office or at such other place as the Board may appoint and all such instruments of transfer shall be retained by the Company.

 

29.

 

  29.1

The instrument of transfer shall be executed by or on behalf of the transferor. 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) by or on behalf of the transferor provided that in the case of execution by facsimile signature by or on behalf of a transferor, the Board shall have previously been provided with a list of specimen signatures of the authorised signatories of such transferor and the Board shall be reasonably satisfied that such facsimile signature corresponds to one of those specimen signatures.

 

  29.2

The instrument of transfer of any Share may be executed for and on behalf of the transferor by the Secretary or an Assistant Secretary, and the Secretary or Assistant Secretary 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 by the transferor or the Secretary or Assistant Secretary as agent for the transferor, be deemed to be a proper instrument of transfer for the purposes of the Companies Acts. 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.


  29.3

The Company, at its absolute discretion, 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 its behalf or on behalf of its subsidiary (as the case may be), 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) claim a first and permanent lien on the Shares on which stamp duty has been paid by the Company or its subsidiary for the amount of stamp duty paid. The Company’s lien shall extend to all dividends paid on those Shares.

 

  29.4

Notwithstanding the provisions of these Articles and subject to any regulations made under section 1086 of the Companies Acts, title to any Shares in the Company may also be evidenced and transferred without a written instrument in accordance with section 1086 of the Companies Acts, 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.

 

30.

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:

 

  30.1

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;

 

  30.2

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

 

  30.3

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

 

  30.4

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;

 

  30.5

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

 

  30.6

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.


31.

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.

 

32.

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 he/she is or may be suffering from mental disorder or is otherwise incapable of managing his/her affairs or under other legal disability.

 

33.

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 21, a new certificate may be issued without charge to the transferee in respect of the Shares transferred to him/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 him/her without charge. The Company shall also retain the instrument(s) of transfer.

REDEMPTION AND REPURCHASE OF SHARES

 

34.

Subject to the provisions of the Companies Acts and these Articles, the Company may, pursuant to the Companies Acts, 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 Members 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.

 

35.

Subject to the Companies Acts, the Company may, without prejudice to any relevant special rights attached to any class of Shares pursuant to the Companies Acts, 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 by the Companies Acts) and may reissue any such Shares as Shares of any class or classes.

 

36.

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.

 

37.

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 him/her the purchase or redemption monies or consideration in respect thereof.

VARIATION OF RIGHTS OF SHARES

 

38.

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.

 

39.

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 (i) for any class of Shares of which there is more than one holder, the necessary quorum shall be two or more persons holding or representing by proxy at least a majority of the issued Shares of the class and (ii) where there is only one holder of Shares in a particular class of Shares, the necessary quorum shall be the sole holder of Shares in that class.


40.

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

 

41.

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.

 

42.

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.

 

43.

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 he/she shall not be bound to see to the application of the purchase monies nor shall his/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.

 

44.

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.

 

45.

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:

 

  45.1

the death of such Member;

 

  45.2

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

 

  45.3

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 his/her estate; or


  45.4

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):

 

  45.5

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

 

  45.6

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;

 

  45.7

the Company may recover as a debt due from such Member or his/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

 

  45.8

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 his/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 45 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, his/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

 

46.

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 his/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.


47.

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

 

48.

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.

 

49.

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

 

50.

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.

 

51.

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.

 

52.

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.

 

53.

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 him/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

 

54.

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 him/her requiring payment of so much of the call or instalment as is unpaid together with any interest which may have accrued.

 

55.

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.

 

56.

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.

 

57.

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.


58.

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 he/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 his/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.

 

59.

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 him/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 his/her liability shall cease if and when the Company shall have received payment in full of all such monies in respect of the Shares.

 

60.

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.

 

61.

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.

 

62.

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

 

63.

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

 

64.

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 he/she was a sole holder, shall be the only persons recognised by the Company as having any title to his/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 him/her solely or jointly with other persons.


65.

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/herself as holder of the Share or to make such transfer of the Share to such other person nominated by him/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 his/her death or bankruptcy as the case may be.

 

66.

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

 

67.

Subject to Article 68, 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 he/she would be entitled if he/she were the registered holder of the Share, except that he/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/herself 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.

 

68.

The Board may at any time give notice requiring a person entitled by transmission to a Share to elect either to be registered himself/herself 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.

AMENDMENT OF MEMORANDUM OF ASSOCIATION;

CHANGE OF LOCATION OF REGISTERED OFFICE; AND

ALTERATION OF CAPITAL

 

69.

The Company may by Ordinary Resolution:

 

  69.1

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

 

  69.2

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

 

  69.3

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

 

  69.4

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 the Companies Acts, 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;


  69.5

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

 

  69.6

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

 

70.

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

 

  70.1

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;

 

  70.2

by Special Resolution reduce its company capital (including its share capital and any capital redemption reserve or share premium account) in any way it thinks expedient and, without prejudice to the generality of the foregoing, may

 

  (a)

extinguish or reduce the liability on any of its shares in respect of share capital not paid up;

 

  (b)

either with or without extinguishing or reducing liability on any of its shares, cancel any paid up company capital which is lost or unrepresented by available assets; and

 

  (c)

either with or without extinguishing or reducing liability on any of its shares, pay off any paid up company capital which is in excess of the wants of the Company,

and 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

 

  70.3

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

 

71.

Whenever as a result of an alteration or reorganisation of the share capital of the Company any Members would become entitled to fractions of a Share, the Directors may, on behalf of those Members, sell the Shares representing the fractions for the best price reasonably obtainable to any person and distribute the proceeds of sale in due proportion among those Members, and the Directors may authorise any person to execute an instrument of transfer of the Shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall his/her title to the Shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.

CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE

 

72.

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 the Companies Acts, 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.

 

73.

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.

 

74.

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

 

75.

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

 

76.

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, the Companies Acts, 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.

 

77.

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 the Companies Acts, all general meetings may be held outside of Ireland.

 

78.

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

 

79.

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 76 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

 

80.

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 of the meeting 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.


81.

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.

 

82.

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.

 

83.

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 him/her and that any proxy need not be a Member of the Company.

 

84.

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.

 

85.

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

 

86.

All business shall be deemed special that is transacted at an extraordinary general meeting, and also that is transacted at an annual general meeting, with the exception of:

 

  (a)

the consideration of the Company’s statutory financial statements and the report of the directors and the report of the statutory auditors on those statements and that report;

 

  (b)

the review by the members of the Company’s affairs;

 

  (c)

the declaration of a dividend (if any) of an amount not exceeding the amount recommended by the directors;

 

  (d)

the authorisation of the directors to approve the remuneration of the statutory auditors; and

 

  (e)

the election and re-election of directors.

 

87.

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


88.

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.

 

89.

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.

 

90.

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

 

91.

The Chairperson, if any, of the Board, or, if the Chairperson is not or will not be present or is unwilling to act, such Director, officer or other person as the Board shall designate, shall preside as Chairperson at every general meeting of the Company.

 

92.

The Chairperson 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.

 

93.

 

  93.1

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, the Companies Acts;

 

  (d)

it is proposed pursuant to, and in accordance with the procedures and requirements of, Articles 101 or 102; or

 

  (e)

the Chairperson of the meeting in his/her absolute discretion decides that the resolution may properly be regarded as within the scope of the meeting.

 

  93.2

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


  93.3

If the Chairperson 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 his/her ruling. Any ruling by the Chairperson of the meeting in relation to a resolution or an amendment to a resolution shall be final and conclusive.

 

94.

Except (i) 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 or (ii) as otherwise required by Article 155, 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.

 

95.

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

 

96.

A poll demanded on the election of the Chairperson 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 Chairperson 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.

 

97.

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 his/her votes or cast all the votes he/she uses in the same way.

 

98.

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.

 

99.

The Board may, and at any general meeting the Chairperson of such meeting may, make such arrangement and impose any requirement or restriction the Board or he/she considers appropriate concerning the conduct of general meetings, including without prejudice to the generality of the foregoing, measures concerning security, health and safety and any such arrangements, requirements and/or restrictions shall bind all members. The Board and, at any general meeting, the Chairperson of such meeting are entitled to refuse entry to, or remove, a person who refuses to comply with any such arrangements, requirements and/or restrictions.

 

100.

Subject to the Companies Acts, 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 Companies Acts. Any such resolution shall be served on the Company.

NOMINATIONS OF DIRECTORS

 

101.

Nominations of persons for election to the Board (other than Directors to be nominated by any series of preferred shares, voting separately as a class) at a general meeting may only be made (a) pursuant to the Company’s notice of meeting pursuant to Article 80 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 102 or 103, 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 his/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.

 

102.

 

  102.1

For nominations of persons for election to the Board (other than Directors to be nominated by any series of preferred shares, voting separately as a class) 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 one hundred and twenty (120) days nor more than one hundred and eighty (180) 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 eightieth (180th) day prior to such annual general meeting and not later than the later of the one hundred and twentieth (120th) day prior to such annual general meeting or the tenth (10th) 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 a contested election, or that 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 and signed 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, age, business address and residence address of such Member, as they appear on the Register of Members, (ii) the principal occupation or employment of the nominee, (iii) the class and number of Shares that are owned beneficially and/or of record by such Member, (iv) 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, (v) a statement that the Member intends or is part of a group that intends to deliver a proxy statement and/or form of proxy to holders of at least sixty-seven percent (67%) of the voting power of the Company’s outstanding share capital entitled to vote on the election of directors, (vi) a representation as to whether or not the Member intends or is part of a group that intends to solicit proxies in support of director nominees other than the Company’s director nominees in accordance with Rule 14a-19 promulgated under the Exchange Act, (vii) a description of all arrangements or understandings between or among the Member and each nominee and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the Member or concerning the nominee’s potential service on the Board, (viii) a questionnaire with respect to the background and qualifications of the nominee completed by the nominee in the form provided by the Company, and (ix) any other information reasonably requested by the Company in connection with the solicitation of proxies for election of directors in a contested election. 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 conflict or otherwise limit such nominee’s ability to fulfil his/her duties as a Director. Notwithstanding the foregoing, if any change occurs with respect to the Member’s plans to solicit proxies in accordance with its statements pursuant to sub-paragraph 102.1(b) of this Article, such Member shall inform the Company of this change by delivering a notice to the Secretary at the registered office of the Company, or such other Address as the Secretary may designate, no later than two (2) business days after the occurrence of such change.

 

  102.2

Notwithstanding, and in addition to, the foregoing provisions of this Article 102, a Member who has submitted a nomination for a person to serve on the Board shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder, including, but not limited to, Rule 14a-19 of the Exchange Act, with respect to the matters set forth in these Articles. If a Member fails to comply with any applicable requirements of the Exchange Act, including but not limited to Rule 14a-19 promulgated thereunder, such Member’s proposed nomination shall be deemed to have not been made in compliance with these Articles and shall be disregarded.

 

  102.3

Further notwithstanding the foregoing provisions of these Articles, unless otherwise required by law, (i) no Member shall solicit proxies in support of director nominees other than the Company’s director nominees unless such Member has complied with this Article 102 and Rule 14a-19 promulgated under the Exchange Act in connection with the solicitation of such proxies, including the provision to the Company of notices required thereunder in a timely manner, and (ii) if any Member (A) provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act, (B) subsequently fails to comply with the requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) promulgated under the Exchange Act, including the provision to the Company of notices required thereunder in a timely manner, and (C) no other Member has provided notice pursuant to, and in compliance with, Rule 14a-19 under the Exchange Act that it intends to solicit proxies in support of the election of such proposed nominee in accordance with Rule 14a-19(b) under the Exchange Act, then the Company shall disregard such nomination and no vote on the election of such proposed nominee shall occur. Upon request by the Company, if any Member provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act, such Member shall deliver to the Company, no later than five (5) business days prior to the applicable meeting date, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act.

 

103.

For nominations of persons for election to the Board (other than directors to be nominated by any series of preferred shares, voting separately as a class) 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 eightieth (180th) day prior to such general meeting and not later of the one hundred and twentieth (120th) day prior to such general meeting or the tenth (10th) 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 sub-paragraphs (a) and (b) of Article 102.1.


104.

Subject to the Companies Acts, unless otherwise provided by the terms of any series of preferred shares or 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 101 and 102 shall be eligible to serve as Directors of the Company. If the Chairperson of a general meeting determines that a proposed nomination was not made in compliance with Articles 101 or 102, as applicable, he/she shall declare to the meeting that such 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 his/her nomination, such nomination shall be disregarded.

VOTES OF MEMBERS

 

105.

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 his/her name in the Register of Members.

 

106.

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.

 

107.

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 his/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.

 

108.

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

 

109.

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 Chairperson of the general meeting whose decision shall be final and conclusive.

 

110.

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

 

111.

 

  111.1

Every Member entitled to attend and vote at a general meeting may appoint a proxy to attend, speak and vote on his/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 consistent with the Companies Acts 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.


  111.2

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.

 

112.

Any body corporate which is a Member 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 and the person so authorised shall be entitled to exercise the same powers on behalf of the body corporate which he/she represents as that body corporate could exercise if it were an individual Member. 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.

 

113.

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.

 

114.

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.

 

115.

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.

 

116.

 

  116.1

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, 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 before the commencement of the meeting.

 

  116.2

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.


  116.3

Any Member directly or indirectly soliciting proxies from other Members must use a proxy card colour other than white; white proxy cards shall be reserved for exclusive use by the Directors.

DIRECTORS

 

117.

The Board may determine its size from time to time at its absolute discretion, including provision for a minimum number of Directors, which shall not be less than the statutory minimum of two Directors.

 

118.

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.

 

119.

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 his/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 his/her remuneration as a Director.

DIRECTORS’ INTERESTS

 

120.

A Director 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 the Companies Acts, declare the nature of his/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 of the Company knows this interest then exists, or in any other case, at the first meeting of the Board after learning that he/she is or has become so interested or (b) by providing a general notice to the Directors declaring that he/she is a director 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.

 

121.

 

  (a)

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

 

  (b)

A Director may use the property of the Company pursuant to or in connection with: the exercise or performance of his/her duties, functions and powers as Director or employee; the terms of any contract of service or employment or letter of appointment; and, or in the alternative, any other usage authorised by the Directors (or a person authorised by the Directors) from time to time; and including in each case for a Director’s own benefit or for the benefit of another person.

 

  (c)

As recognised by section 228(1) of the Companies Act 2014, the directors may agree to restrict their power to exercise an independent judgment but only where this has been expressly approved by a resolution of the board of directors of the Company.


122.

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

 

123.

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 him/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 he/she has declared the nature of his/her position with, or interest in, such company to the Board in accordance with Article 120.

 

124.

No person shall be disqualified from the office of Director 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 of the Company shall be in any way interested be or be liable to be avoided, nor shall any Director 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 of the Company holding office or of the fiduciary relation thereby established; provided that:

 

  124.1

he/she has declared the nature of his/her interest in such contract or transaction to the Board in accordance with Article 120; and

 

  124.2

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.

 

125.

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 he/she is interested and he/she shall be at liberty to vote in respect of any contract, transaction or arrangement in which he/she is interested, provided that the nature of the interest of any Director in any such contract or transaction shall be disclosed by him/her in accordance with Article 120, at or prior to its consideration and any vote thereon.

 

126.

For the purposes of Article 120:

 

  126.1

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;

 

  126.2

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

 

  126.3

a copy of every declaration made and notice given under Article 120 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

 

127.

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.

 

128.

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.

 

129.

The Company may have, for use in any place abroad, an official seal.

 

130.

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.

 

131.

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.

 

132.

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.

 

133.

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.

 

134.

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 wellbeing 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 him/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.


135.

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

 

136.

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

 

137.

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 him/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.

 

138.

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.

 

139.

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 him/her.

EXECUTIVE OFFICERS

 

140.

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

PROCEEDINGS OF DIRECTORS

 

141.

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 proceedings 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.


142.

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.

 

143.

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 if 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.

 

144.

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.

 

145.

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.

 

146.

The Directors may elect a Chairperson of their Board and determine the period for which he/she is to hold office. If no such Chairperson is elected, or if at any meeting the Chairperson is not or will not be present, due to scheduled or unexpected absence, the Directors may choose one of their number to be a Chairperson of the meeting until the earlier of such time as the Chairperson is present or the end of such meeting.

 

147.

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.

 

148.

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 Chairperson is at the start of the meeting.

 

149.

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

 

150.

The office of a Director shall be vacated:

 

  150.1

if he/she resigns his/her office, on the date on which notice of his/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

 

  150.2

on his/her being prohibited by law from being a Director; or

 

  150.3

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

 

151.

The Company may, by Ordinary Resolution, in accordance with the Companies Acts, remove any Director before the expiration of his/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 him/her and the Company.

APPOINTMENT OF DIRECTORS

 

152.

At every annual general meeting, all Directors shall retire from office unless re-elected by Ordinary Resolution at the annual general meeting. Every Director that is nominated by the Board for re-election at an annual general meeting shall be eligible to stand for re-election at such annual general meeting. If a Director offers himself/herself for re-election, he/she shall be deemed to have been re-elected, unless at such meeting the Ordinary Resolution for the re-election of such Director has been defeated or as otherwise provided in these Articles.

 

153.

Save as otherwise permitted in or prescribed by these Articles (including Article 117 and Article 155), Directors will be elected by way of Ordinary Resolution of the Company in general meeting. In no case will a decrease in the number of Directors shorten the term of any incumbent Director. A Director shall hold office until the close of the annual general meeting for the year in which his/her term expires and until his/her successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office. Any vacancy on the Board, including a vacancy that results from an increase in the number of Directors or from the death, resignation, retirement, disqualification or removal of a Director, shall be deemed a casual vacancy and, subject to the terms of any one or more classes or series of preferred shares (if any), shall only be filled by decision of a majority of the Board then in office. A Director retiring from the Board at a general meeting shall retain office until the close or adjournment of such meeting.

 

154.

During any vacancy in the Board, the remaining Directors shall have full power to act as the Board.

 

155.

Subject to Article 117, each Director shall be elected by an Ordinary Resolution at an annual general meeting (or an extraordinary general meeting called for that purpose), provided that:

 

  155.1

if, at any general meeting of the Company other than at a meeting with a contested election as described in Article 155.2 below, the number of Directors is reduced below the minimum prescribed by the Board in accordance with Article 117 due to the failure of any persons nominated to be Directors to be elected, then in those circumstances, the nominee or nominees who receive the highest number of votes in favour of election shall be elected in order to maintain the prescribed minimum number of Directors and each such Director shall remain a Director (subject to the provisions of the Companies Acts and these Articles) only until the conclusion of the next annual general meeting of the Company unless such Director is re-elected by the Members during such meeting; and


  155.2

if, at the time the Company files its proxy statement for any general meeting of the Company, the number of persons who are at such time validly nominated in accordance with these Articles for election or re-election as Directors (such persons collectively, the “Director Nominees”) exceeds the number of Directors to be elected at such general meeting in accordance with Article 117 (the “Available Director Positions” and such an election, a “contested election”), then only those Director Nominees in number equal to the Available Director Positions who receive the highest number of votes in favour of their election by the Members present in person or represented by proxy at such meeting and entitled to vote on the election of Directors shall be elected as Directors. For clarity, notwithstanding the withdrawal of any nominations for Directors in a contested election subsequent to the time the Company files its proxy statement, the plurality voting provisions of this Article 155.2 will continue to apply to the election of Directors at any such meeting.

SECRETARY

 

156.

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.

 

157.

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.

 

158.

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

 

159.

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.

 

160.

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

 

161.

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

 

162.

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.

 

163.

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.


164.

No dividend, interim dividend or distribution shall be paid otherwise than in accordance with the provisions of the Companies Acts.

 

165.

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.

 

166.

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

 

167.

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.

 

168.

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.

 

169.

No dividend or distribution shall bear interest against the Company.

 

170.

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

 

171.

Without prejudice to any powers conferred on the Directors as aforesaid, and subject to any authority granted to the Directors to issue and allot Shares, including, in accordance with the Companies Acts or under Article 9, the Directors or any duly appointed committee thereof may:

 

  171.1

resolve to capitalise any amount standing to the credit of the reserves of the Company (including, but not limited to, the share premium account, capital redemption reserve, capital conversion reserve and profit and loss account), whether or not available for distribution, for any purpose, including, but not limited to, for the purposes of effecting any exchange of any rights and applying any such sum arising from such capitalisation to pay up any shares of the Company and allot them, credited as fully paid, to any holders of such rights;

 

  171.2

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, the capital conversion reserve and profits that are not available for distribution may, for the purposes of this Article 171, only be applied in paying up unissued Shares to be allotted to Members credited as fully paid;

 

  171.3

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;

 

  171.4

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

 

  171.5

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

ACCOUNTS

 

172.

The Directors shall cause the Company to keep adequate accounting records, which are sufficient to:

 

  (a)

correctly record and explain the transactions of the Company;

 

  (b)

enable, at any time, the assets, liabilities, financial position and profit or loss of the Company to be determined with reasonable accuracy;

 

  (c)

enable the Directors to ensure that any financial statements of the Company and any directors’ report, required to be prepared under the Companies Acts, comply with the requirements of the Companies Acts and, where applicable, the IAS Regulation; and

 

  (d)

enable those financial statements of the Company to be audited.

Accounting records 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 in accordance with the Companies Acts.


173.

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. The Company may send a summary financial statement to its Members or persons nominated by any Member and 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 the documents required to be sent to Members by the Companies Acts or any summary financial statement or other communications with its Members.

 

174.

The accounting records 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.

 

175.

Accounting records shall not be deemed to be kept as required by Articles 172 to 174, if there are not kept such accounting records as are necessary to give a true and fair view of the state of the Company’s affairs and to explain its transactions.

 

176.

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.

 

177.

 

  177.1

The Company may send by post, electronic mail or any other means of electronic communication:

 

  (a)

the Company’s statutory financial statements,

 

  (b)

the directors’ report, and

 

  (c)

the statutory auditors’ report and copies of those documents shall also be treated for the purposes of the Companies Acts, as sent to a person where:

 

  (i)

the Company and that person have agreed to his/her having access to the documents on a website (instead of their being sent to him/her);

 

  (ii)

the documents are documents to which that agreement applies; and

 

  (iii)

that person is notified, in a manner for the time being agreed for the purpose between that person and the company, of —

 

  (A)

the publication of the documents on a website,

 

  (B)

the address of that website, and

 

  (C)

the place on that website where the documents may be accessed and how they may be accessed.

 

  177.2

The documents listed at 177.1 (a) to (c) shall be treated as sent to a person not less than 21 days before the date of a meeting if, and only if —


  (a)

the documents are published on the website throughout a period beginning at least 21 days before the date of the meeting and ending with the conclusion of the meeting; and

 

  (b)

the notification given for the purposes of paragraph (c) is given not less than 21 days before the date of the meeting.

 

  177.3

Nothing shall invalidate the proceedings of a meeting where—

 

  (a)

any documents that are required to be published are published for a part, but not all, of the 21 day period mentioned above; and

 

  (b)

the failure to publish those documents throughout that period is wholly attributable to circumstances which it would not be reasonable to have expected the company to prevent or avoid.

 

  177.4

Where copies of documents are sent out pursuant to this Article 177 over a period of days, references elsewhere in the Companies Act to the day on which those copies are sent out shall be read as references to the last day of that period.

 

178.

The Directors shall determine from time to time whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members, not being Directors, and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by the Companies Acts or authorised by the Directors or by the Company in general meeting. No Member shall be entitled to require discovery of or any information respecting any detail of the Company’s trading, or any matter which is or may be in the nature of a trade secret, mystery of trade, or secret process which may relate to the conduct of the business of the Company and which in the opinion of the Directors it would be inexpedient in the interests of Members to communicate to the public.

AUDIT

 

179.

Statutory auditors shall be appointed and their duties regulated in accordance with the Companies Acts 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

 

180.

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

 

  180.1

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 his/her authorised agent;

 

  (b)

by leaving the same at his/her registered address;

 

  (c)

by sending the same by the post in a pre-paid cover addressed to him/her at his/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).


  180.2

For the purposes of these Articles and the Companies Acts, 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.

 

  180.3

Where a notice or document is given, served or delivered pursuant to sub-paragraph 180.1(a) or 180.1(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 his/her authorised agent, or left at his/her registered address (as the case may be).

 

  180.4

Where a notice or document is given, served or delivered pursuant to sub-paragraph 180.1(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.

 

  180.5

Where a notice or document is given, served or delivered pursuant to sub-paragraph 180.1(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.

 

  180.6

Where a notice or document is given, served or delivered pursuant to sub-paragraph 180.2 of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the time that the notification of such publication shall be deemed to have been given, served or delivered to such Member in accordance with these Articles. Each Member and each person becoming a Member subsequent to the Adoption Date by virtue of his/her holding or his/her acquisition and holding of a share, as applicable, shall be deemed to have acknowledged and agreed that any notice or other document (excluding a share certificate) may be provided by the Company by way of accessing them on a website instead of being provided by other means.

 

  180.7

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 180.1(d) of this Article, 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.

 

  180.8

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.

 

  180.9

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 statutory auditor’s reports thereon, shall be deemed to have been satisfied where the Company has written to the Member informing him/her 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, his/her consent to the receipt by such Member of electronic mail or other means of electronic communications approved by the Directors, he/she may revoke such consent at any time by requesting the Company to communicate with him/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.


  180.10

Without prejudice to the provisions of sub-paragraphs 180.1(a) and 180.1(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.

 

181.

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.

 

182.

 

  182.1

Every person who becomes entitled to a Share shall before his/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 he/she derives his/her title.

 

  182.2

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.

 

183.

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

 

184.

 

  184.1

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 his/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.

 

  184.2

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

 

185.

The Company may destroy:

 

  185.1

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;

 

  185.2

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

 

  185.3

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;

 

  185.4

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

 

186.

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.

 

  186.1

In case of a sale by the liquidator under section 601 of the Companies Act 2014, 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 601.

 

  186.2

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.

 

187.

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, he/she determines, but so that no Member shall be compelled to accept any assets upon which there is a liability.

INDEMNITY

 

188.

 

  188.1

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 him/her in the execution and discharge of his/her duties or in relation thereto including any liability incurred by him/her in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him/her as an officer or employee of the Company and in which judgement is given in his/her favour (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his/her part) or in which he/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 him/her by the Court.

 

  188.2

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 him/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 he/she, or he/she was, is, or is threatened to be made a party by reason of the fact that he/she, or he/she is or was such a director, executive or trustee, provided always that the indemnity contained in this Article 188.2 shall not extend to any matter which would render it void pursuant to the Companies Acts.

 

  188.3

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 Article 188.2 of this Article 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 his/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.

 

  188.4

As far as permissible under the Companies Acts, expenses, including attorneys’ fees, incurred in defending any action, suit or proceeding referred to in Articles 188.2 and 188.3 of this Article 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 he/she is entitled to be indemnified by the Company as authorised by these Articles.

 

  188.5

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 his/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 he/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.

 

  188.6

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 the Companies Acts or otherwise.

 

  188.7

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

 

189.

The financial year of the Company shall be as prescribed by the Board from time to time.

SHAREHOLDER RIGHTS PLAN

 

190.

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, including the grant of rights (including approving the execution of any documents relating to the grant of such rights) to subscribe for ordinary shares or preferred shares in the share capital of the Company in accordance with the terms of any Shareholder Rights Plan. The Directors or any duly appointed committee thereof may effect an exchange of rights in accordance with such Shareholder Rights Plan.

DISPUTE RESOLUTION

 

191.

The courts of Ireland shall have exclusive jurisdiction to determine any dispute (as defined below) related to or connected with (a) any action asserting a claim of, or a claim based on, a breach of fiduciary or other duty owed by any Director or officer or other employee of the Company to the Company or the Company’s shareholders, (b) any derivative action or proceeding brought on behalf of the Company, or (c) any action asserting a claim against the Company or any Director or officer or other employee of the Company arising under the laws of Ireland or pursuant to any provision of the Memorandum or Articles of Association (as either may be amended from time to time). Further, unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the sole and exclusive forum for resolving any dispute asserting a cause of action arising under the Securities Act of 1933 of the United States of America, as amended, the Exchange Act, or the respective rules and regulations promulgated thereunder.

 

  191.1

Damages alone may not be an adequate remedy for any breach of this Article 191, so that, in the event of a breach or anticipated breach, the remedies of injunction and/or an order for specific performance would in appropriate circumstances be available.

 

  191.2

The governing law of the Articles is the law of Ireland.

 

  191.3

For the purposes of this Article 191:

 

  (a)

a “dispute” shall mean any dispute, controversy or claim;

 

  (b)

references to “Company” shall be read so as to include each and any of the Company’s subsidiary undertakings from time to time; and

 

  (c)

“Director” shall be read so as to include each and any director of the Company from time to time in his/her capacity as such or as an employee of the Company and shall include any former director of the Company.


WE, the several persons whose names, addresses and descriptions 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    Number of Shares taken
of subscribers    by each subscriber

Andrew Lambe

55 Mount Prospect Drive

Clontarf

Dublin 3

   50

Paula Horan

 

85 Castlefarm

Shankill

Co. Dublin

   50

 

  

 

Witnesses to the above signatures:

 

Name:    Philip Hayden
Address:    The Black Church, St. Mary’s Place, Dublin 7
EX-10.1

Exhibit 10.1

Execution Version

TAX MATTERS AGREEMENT

by and between

ALKERMES PLC

and

MURAL ONCOLOGY PLC

Dated as of November 13, 2023


TAX MATTERS AGREEMENT

 

ARTICLE I DEFINITIONS

     1  

        

 

Section 1.1

  

General

     1  

ARTICLE II LIABILITY FOR TAXES AND DISTRIBUTION LOSSES

     10  
 

Section 2.1

  

General Rule

     10  
 

Section 2.2

  

Allocation Of Taxes For Pre-Distribution Periods

     10  

ARTICLE III PREPARATION AND FILING OF TAX RETURNS

     11  
 

Section 3.1

  

Alkermes’s Responsibility

     11  
 

Section 3.2

  

Mural’s Responsibility

     11  
 

Section 3.3

  

Cooperation

     11  
 

Section 3.4

  

Tax Reporting Practices

     11  
 

Section 3.5

  

Certain Elections

     12  
 

Section 3.6

  

Right to Review Tax Returns

     13  
 

Section 3.7

  

Adjustment Requests and Mural Carrybacks

     13  
 

Section 3.8

  

Apportionment of Tax Attributes

     14  

ARTICLE IV TAX PAYMENTS

     14  
 

Section 4.1

  

Payment of Joint Return and Separate Return Taxes

     14  
 

Section 4.2

  

Indemnification Payments

     14  

ARTICLE V TAX BENEFITS

     15  
 

Section 5.1

  

Section 336(e) Tax Benefits

     15  
 

Section 5.2

  

Other Tax Benefits

     15  
 

Section 5.3

  

Tax Refunds

     16  

ARTICLE VI TAX-FREE STATUS

     16  
 

Section 6.1

  

Restrictions on Mural

     16  
 

Section 6.2

  

Restrictions on Alkermes

     19  
 

Section 6.3

  

Liability For Distribution Losses

     19  

ARTICLE VII ASSISTANCE AND COOPERATION

     20  
 

Section 7.1

  

Assistance and Cooperation

     20  
 

Section 7.2

  

Income Tax Return Information

     21  
 

Section 7.3

  

Reliance by Alkermes

     21  
 

Section 7.4

  

Reliance by Mural

     21  

ARTICLE VIII TAX RECORDS

     21  
 

Section 8.1

  

Retention of Tax Records

     21  
 

Section 8.2

  

Access to Tax Records

     22  
 

Section 8.3

  

Preservation of Privilege

     22  

ARTICLE IX TAX CONTESTS

     22  
 

Section 9.1

  

Notice

     22  
 

Section 9.2

  

Control of Tax Contests

     23  

 

i


ARTICLE X EFFECTIVE DATE      24  
ARTICLE XI SURVIVAL OF OBLIGATIONS      24  
ARTICLE XII TAX TREATMENT OF PAYMENTS      24  

        

   Section 12.1   

Gross-Up of Indemnification Payments Made Pursuant to this Agreement

     24  
   Section 12.2   

Interest

     24  
ARTICLE XIII DISPUTE RESOLUTION      25  
   Section 13.1   

Negotiation

     25  
   Section 13.2   

Arbitration

     25  
   Section 13.3   

Referral To Tax Advisor For Computational or Tax Law Disputes

     25  
   Section 13.4   

Continuity of Service and Performance

     26  
   Section 13.5   

Injunctive or Other Equity Relief

     26  
ARTICLE XIV GENERAL PROVISIONS      26  
   Section 14.1   

Complete Agreement; Construction

     26  
   Section 14.2   

Transaction Agreements

     26  
   Section 14.3   

Counterparts

     26  
   Section 14.4   

Survival of Agreement

     27  
   Section 14.5   

Expenses

     27  
   Section 14.6   

Notices

     27  
   Section 14.7   

Waivers

     28  
   Section 14.8   

Assignment

     28  
   Section 14.9   

Successors and Assigns

     28  
   Section 14.10   

Termination and Amendment

     28  
   Section 14.11   

Payment Terms

     29  
   Section 14.12   

Subsidiaries

     29  
   Section 14.13   

Third Party Beneficiaries

     29  
   Section 14.14   

Titles And Headings

     29  
   Section 14.15   

Governing Law

     30  
   Section 14.16   

Severability

     30  
   Section 14.17   

Interpretation

     30  
   Section 14.18   

No Duplication; No Double Recovery

     30  
   Section 14.19   

No Waiver

     30  
   Section 14.20   

Further Action

     31  

 

Schedules

  

Schedule 1.1(a)

  

Representation Letters

Schedule 1.1(b)

  

Tax Opinions

 

ii


TAX MATTERS AGREEMENT

This TAX MATTERS AGREEMENT (this “Agreement”) is entered into as of November 13, 2023, by and between Alkermes plc, an Irish public limited company (“Alkermes”), and Mural Oncology plc, an Irish public limited company (“Mural”). (Alkermes and Mural are sometimes collectively referred to herein as the “Parties” and, as the context requires, individually referred to herein as a “Party”).

W I T N E S S E T H:

WHEREAS, Alkermes, acting together with its Subsidiaries, is a company engaged in the Neuroscience Business and the Oncology Business;

WHEREAS, the board of directors of Alkermes (the “Board”) has determined that it is appropriate, desirable and in the best interests of Alkermes that its Oncology Business be separated from its Neuroscience Business and operated by a separate publicly traded company;

WHEREAS, it is the intention of the Parties that the transactions undertaken to accomplish such separation have the Tax-Free Status;

WHEREAS, the Parties desire to provide for and agree upon the allocation between the Parties of liabilities, and entitlements to refunds thereof, for certain Taxes arising prior to, at the time of, and subsequent to the Separation, and to provide for and agree upon other matters relating to Taxes and to set forth certain covenants and indemnities relating to the Tax-Free Status;

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 General. For purposes of this Agreement (including the recitals hereof), the following terms have the following meanings, and capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Separation Agreement:

Action” has the meaning set forth in the Separation Agreement.

Active Trade or Business” means (i) with respect to the Mural SAG, the active conduct (as defined in Section 355(b)(2) of the Code and the Treasury Regulations thereunder) of the “Oncology Business,” as such term is defined and described in the Ruling Request and the Representation Letter, as conducted immediately prior to the Alkermes Distribution by the Mural SAG, and (ii) with respect to the Mural US SAG, the active conduct (as defined in Section 355(b)(2) of the Code and the Treasury Regulations thereunder) of the “Oncology Business,” as such term is defined and described in the Ruling Request and the Representation Letter, as conducted immediately prior to each Internal Distribution by the Mural US SAG.

 

1


Adjustment Request” means any formal or informal claim or request filed with any Tax Authority, or with any administrative agency or court, for the adjustment, refund, or credit of Taxes, including (a) any amended Tax Return claiming adjustment to the Taxes as reported on the Tax Return or, if applicable, as previously adjusted, (b) any claim for equitable recoupment or other offset, and (c) any claim for refund or credit of Taxes previously paid.

Affiliate” means any entity that is directly or indirectly “controlled” by either the person in question or an Affiliate of such person. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities or other interests, by contract or otherwise. The term Affiliate shall refer to Affiliates of a person as determined immediately after the Alkermes Distribution.

Alkermes” has the meaning provided in the first sentence of this Agreement.

Alkermes Contribution” means the contribution by Alkermes of Mural US to Mural.

Alkermes Distribution” has the meaning assigned to the term “Distribution” in the Separation Agreement.

Alkermes Disqualifying Act” means (a) any act, or failure or omission to act, by any member of the Alkermes Group following the Alkermes Distribution that results in any Party (or any of its Affiliates) being responsible for Distribution Taxes pursuant to a Final Determination; (b) the direct or indirect acquisition of all or a portion of the Capital Stock of Alkermes or any member of the Alkermes Group (or any transaction or series of related transactions that is deemed to be such an acquisition for purposes of the Code and the Treasury Regulations promulgated thereunder) by any means whatsoever by any Person, including pursuant to an issuance of Capital Stock by Alkermes or any member of the Alkermes Group; (c) any event (or series of events) involving Capital Stock of Alkermes or any assets of any member of the Alkermes Group; or (d) any failure to be true, inaccuracy in, or breach of any of Alkermes’s representations or statements contained in the Ruling Request or the Representation Letter to the extent relating to acts, omissions, events, conditions, facts or circumstances existing on or before the Distribution Effective Time.

Alkermes Group” means Alkermes and its Affiliates, excluding any entity that is a member of the Mural Group.

Alkermes Separate Return” means (a) any Tax Return of or including any member of the Alkermes Group (including any consolidated, combined or unitary return) that does not include any member of the Mural Group and (b) any Tax Return relating to Transfer Taxes that Alkermes is obligated to file under applicable Law.

Ancillary Agreements” has the meaning set forth in the Separation Agreement; provided, however, that for purposes of this Agreement, this Agreement shall not constitute an Ancillary Agreement.

Board” has the meaning set forth in the recitals to this Agreement.

 

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Business Day” has the meaning set forth in the Separation Agreement.

Capital Stock” means all classes or series of capital stock of a corporation, including (a) ordinary shares, (b) common stock, (c) all options, warrants and other rights to acquire such ordinary shares or common or other stock and (c) all instruments properly treated as stock for U.S. federal Income Tax purposes.

Code” means the U.S. Internal Revenue Code of 1986, as amended.

Complete Pre-Distribution Period” means any Tax Period ending on or before the Distribution Date.

Controlling Party” has the meaning set forth in Section 9.2(b) of this Agreement.

Dispute Notice” has the meaning set forth in Section 13.1.

Disputed Tax Matter” has the meaning set forth in Section 13.3.

Disputes” has the meaning set forth in Section 13.1.

Distribution Date” has the meaning set forth in the Separation Agreement.

Distribution Effective Time” has the meaning set forth in the Separation Agreement.

Distribution Losses” means (a) all Distribution Taxes (including interest and penalties thereon) imposed pursuant to any settlement, Final Determination, judgment or otherwise; (b) all accounting, legal and other professional fees and court costs incurred in connection with such Distribution Taxes, as well as any other out-of-pocket costs incurred in connection with such Taxes; and (c) all reasonable costs and expenses and all damages associated with shareholder litigation or controversies and any amount paid by any member of the Alkermes Group or member of the Mural Group in respect of the liability of shareholders, whether paid to any shareholder or to the IRS or any other Tax Authority, in each case, resulting from the failure of any Separation Transactions to have Tax-Free Status.

Distribution Taxes” means any and all Taxes required to be paid by or imposed on a Party or any of its Affiliates resulting from, attributable to, or arising in connection with the failure of any of the Separation Transactions to have Tax-Free Status.

Fifty-Percent or Greater Interest” has the meaning ascribed to such term for purposes of Section 355(e) of the Code.

Final Determination” means the final resolution of liability for any Tax, which resolution may be for a specific issue or adjustment or for a taxable period, (a) by IRS Form 870 or 870-AD (or any successor forms thereto), on the date of acceptance by or on behalf of the taxpayer, or by a comparable form under the Laws of a state, local, or foreign taxing jurisdiction, except that a Form 870 or 870-AD or comparable form shall not constitute a Final Determination to the extent that it reserves (whether by its terms or by operation of Law) the right of the taxpayer to file a claim for refund or the right of the Tax Authority to assert a further deficiency

 

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in respect of such issue or adjustment or for such taxable period (as the case may be); (b) by a decision, judgment, decree, or other order by a court of competent jurisdiction, which has become final and unappealable; (c) by a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the Laws of a state, local, or foreign taxing jurisdiction; (d) by any allowance of a refund or credit in respect of an overpayment of a Tax, but only after the expiration of all periods during which such refund may be recovered (including by way of offset) by the jurisdiction imposing such Tax; (e) by a final settlement resulting from a treaty-based competent authority determination; or (f) by any other final disposition, including by reason of the expiration of the applicable statute of limitations, the execution of a pre-filing agreement with the IRS or other Tax Authority, or by mutual agreement of the Parties.

Governmental Entity” has the meaning set forth in the Separation Agreement.

Group” means the Alkermes Group or the Mural Group, or both, as the context requires.

Income Tax” means all U.S. federal, state, and local and foreign income, franchise or similar Taxes imposed on (or measured by) net income or net profits, and any interest, penalties, additions to tax or additional amounts in respect of the foregoing.

Intended Irish Tax Treatment” means, for Irish tax purposes, that the Alkermes Contribution and the Alkermes Distribution shall be treated as a scheme of reconstruction or amalgamation to which the provisions of Section 80 of the Ireland Stamp Duties Consolidation Act, 1999 and the provisions of Sections 587 and 615 of the Ireland Taxes Consolidation Act, 1997 apply.

Internal Contribution” has the meaning assigned to the term “Onc. Co. Contribution” in the Ruling Request.

Internal Distribution” means any of Internal Distribution 1, Internal Distribution 2, Internal Distribution 3, and Internal Distribution 4.

Internal Distribution 1” has the meaning assigned to the term “Alkermes, Inc. Distribution” in the Ruling Request.

Internal Distribution 2” has the meaning assigned to the term “US Holdings Distribution” in the Ruling Request.

Internal Distribution 3” has the meaning assigned to the term “DPIL Distribution” in the Ruling Request.

Internal Distribution 4” has the meaning assigned to the term “AIHL Distribution” in the Ruling Request.

IRS” means the U.S. Internal Revenue Service.

Joint Return” means any Tax Return (including any consolidated, combined or unitary Tax Return) that relates to at least one asset or activity that is part of the Neuroscience Business, on the one hand, and at least one asset or activity that is part of the Oncology Business, on the other hand.

 

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Law” has the meaning set forth in the Separation Agreement.

Loss” is defined in Section 5.2(a).

Mural” has the meaning provided in the first sentence of this Agreement.

Mural Carryback” means any net operating loss, net capital loss, excess tax credit, or other similar Tax item of any member of the Mural Group which may or must be carried from one Tax Period to another prior Tax Period under the Code or other applicable Law.

Mural Disqualifying Act” means, following the Alkermes Distribution, (a) any act, or failure or omission to act, by any member of the Mural Group that results in any Party (or any of its Affiliates) being responsible for Distribution Taxes pursuant to a Final Determination, regardless of whether such act or failure to act (i) is covered by a Post-Distribution Ruling or Unqualified Tax Opinion (or is subject to Section 6.1(d)), or (ii) occurs during or after the Restricted Period; (b) the direct or indirect acquisition of all or a portion of the Capital Stock of Mural US (or any transaction or series of related transactions that is deemed to be such an acquisition for purposes of the Code and the Treasury Regulations promulgated thereunder) by any means whatsoever by any Person, including pursuant to an issuance of Capital Stock by Mural US, Mural or any other member of the Mural Group; (c) any event (or series of events) involving Capital Stock of Mural or any member of the Mural Group; or (d) any breach by any member of the Mural Group of any of its obligations under this Agreement.

Mural Group” means Mural and its Affiliates, as determined after the Alkermes Distribution.

Mural SAG” means the separate affiliated group of Mural, within the meaning of Section 355(b)(3)(B) of the Code.

Mural Separate Return” means (a) any Tax Return of or including any member of the Mural Group (including any consolidated, combined or unitary return) that does not include any member of the Alkermes Group and (b) any Tax Return relating to Transfer Taxes that Mural is obligated to file under applicable Law.

Mural US” means Mural Oncology, Inc., a Delaware corporation, the Capital Stock of which is distributed in the Internal Distributions.

Mural US SAG” means the separate affiliated group of Mural US, within the meaning of Section 355(b)(3)(B) of the Code.

Non-Controlling Party” has the meaning set forth in Section 9.2(b) of this Agreement.

Non-Responsible Party” means the Party that is not the Responsible Party.

Neuroscience Business” has the meaning set forth in the Separation Agreement.

 

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Oncology Business” has the meaning set forth in the Separation Agreement.

Parties” and “Party” have the meaning set forth in the first sentence of this Agreement.

Past Practices” has the meaning set forth in Section 3.4(a) of this Agreement.

Payor” has the meaning set forth in Section 4.2(a) of this Agreement.

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 Entity or any department, agency or political subdivision thereof, without regard to whether any entity is treated as disregarded for U.S. federal Income Tax purposes.

Post-Distribution Period” means any Tax Period beginning after the Distribution Date and, in the case of any Straddle Period, the portion of such Tax Period beginning on the day after the Distribution Date.

Pre-Distribution Period” means any Tax Period ending on or before the Distribution Date and, in the case of any Straddle Period, the portion of such Straddle Period ending on the Distribution Date.

Plan of Reorganization” has the meaning set forth in the Separation Agreement.

Post-Distribution Ruling” has the meaning set forth in Section 6.1 of this Agreement.

Prime Rate” has the meaning set forth in the Separation Agreement.

Privilege” has the meaning set forth in the Separation Agreement.

Proposed Acquisition Transaction” means a transaction or series of transactions (or any agreement, understanding or arrangement, within the meaning of Section 355(e) of the Code and Treasury Regulation Section 1.355-7, or any other regulations promulgated thereunder, to enter into a transaction or series of transactions), whether such transaction or series of transactions is supported by Mural management or shareholders (or the management or stockholders of Mural US), is a hostile acquisition, merger, consolidation or otherwise, as a result of which any Person or any group of related Persons would directly or indirectly (including through an acquisition of Capital Stock of Mural) acquire, or have the right to acquire, a number of shares of Capital Stock of Mural US that would, when combined with any other direct or indirect changes in ownership of Capital Stock of Mural US pertinent for purposes of Section 355(e) of the Code, comprise forty percent (40%) or more of (a) the value of all outstanding shares of Capital Stock of Mural US as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series, or (b) the total combined voting power of all outstanding shares of voting Capital Stock of Mural US as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series. Notwithstanding the foregoing, a Proposed Acquisition Transaction shall not include (i) the adoption by Mural or Mural US of a shareholder rights plan, (ii) issuances by Mural or Mural US that satisfy Safe Harbor VIII (relating to acquisitions in connection with a Person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulations Section

 

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1.355-7(d) or (iii) Specified Redemptions. For purposes of determining whether a transaction constitutes an indirect acquisition, any recapitalization resulting in a shift of voting power or any redemption of shares of Capital Stock shall be treated as an indirect acquisition of shares of stock by the non-exchanging shareholders; provided, however, that the Specified Redemptions shall not be taken into account. For purposes of administering this definition and determining changes in ownership of Mural Capital Stock that are pertinent for purposes of Section 355(e) of the Code, the methodologies set forth in the Ruling shall be applied. For purposes of this definition, each reference to Mural US shall include a reference to any entity treated as a successor thereto. This definition and the application thereof are intended to monitor compliance with Section 355(e) of the Code and shall be interpreted accordingly. Any clarification of, or change in, the statute or regulations promulgated under Section 355(e) of the Code shall be incorporated in this definition and its interpretation.

Representation Letters” means the representation letters set forth in Schedule 1.1(a) delivered in connection with the Separation Transactions.

Required Party” has the meaning set forth in Section 4.2 of this Agreement.

Responsible Party” means, with respect to any Tax Return, the Party having responsibility for preparing and filing such Tax Return under this Agreement.

Restricted Period” means the period beginning at the Distribution Effective Time and ending on the two-year anniversary of the day after the Distribution Date.

Retention Date” has the meaning set forth in Section 8.1 of this Agreement.

Ruling” means the IRS private letter ruling issued to Alkermes and its Affiliates in response to the Ruling Request.

Ruling Request” means the request for ruling in connection with the Separation Transactions (including all attachments, exhibits, and other materials submitted with such ruling request letter) and any amendment or supplement to such ruling request letter.

Section 336(e) Allocation Statement” has the meaning set forth in Section 3.5(b)(ii) of this Agreement.

Section 336(e) Election” has the meaning set forth in Section 3.5(b)(i).

Separate Return” means an Alkermes Separate Return or a Mural Separate Return, as the case may be.

Separation” has the meaning set forth in the Separation Agreement (and includes, for the avoidance of doubt, the transactions contemplated by the Plan of Reorganization).

Separation Agreement” means the Separation Agreement, as amended from time to time, by and between Alkermes and Mural.

 

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Separation Taxes” means any and all Taxes (other than Distribution Taxes) required to be paid by or imposed on a Party or any of its Affiliates resulting from, attributable to, or arising in connection with any Separation Transaction, including Transfer Taxes.

Separation Transactions” means, collectively, the Internal Contribution, the Internal Distribution 1, the Internal Distribution 2, the Internal Distribution 3, the Internal Distribution 4, the Alkermes Contribution, the Separation, and the Alkermes Distribution.

Specified Redemptions” means the acquisitions by Mural that are described in Section 4.3(h) of the Separation Agreement.

Straddle Period” means any Tax Period that begins on or before and ends after the Distribution Date.

Subsidiary” has the meaning set forth in the Separation Agreement.

Tax” or “Taxes” means any income, gross income, gross receipts, profits, capital stock, franchise, withholding, payroll, social security, workers compensation, unemployment, disability, property, ad valorem, value added, stamp, excise, severance, occupation, service, sales, use, license, lease, transfer, import, export, escheat, alternative minimum, estimated or other tax (including any fee, assessment, or other charge in the nature of or in lieu of any tax), imposed by any Governmental Entity or political subdivision thereof, and any interest, penalty, additions to tax or additional amounts in respect of the foregoing.

Tax Advisor” means a tax counsel or tax accountant of recognized national standing.

Tax Attribute” means a net operating loss, carryforward under Section 163(j) of the Code, net capital loss, unused investment credit, unused foreign Tax credit, excess charitable contribution, general business credit, research and development credit, orphan drug credit, earnings and profits, basis, or any other Tax Item that could reduce a Tax or create a Tax Benefit.

Tax Authority” means, with respect to any Tax, the Governmental Entity or political subdivision thereof that imposes such Tax, and the agency (if any) charged with the assessment, administration, collection, enforcement, determination or imposition of such Tax (including, for the avoidance of doubt, Ireland’s Revenue Commissioners) for such entity or subdivision.

Tax Benefit” means any Tax Refund, credit or other reduction in Tax payments (determined on a “with and without” basis).

Tax Contest” means an audit, review, examination, or any other administrative or judicial proceeding with the purpose or effect of redetermining Taxes (including any administrative or judicial review of any claim for refund).

Tax-Free Status” means the qualification of (a) Internal Contribution and Internal Distribution 1, taken together, as a reorganization described in Sections 355(a) and 368(a)(1)(D) of the Code, (b) Internal Distribution 2 as a distribution described in Section 355(a) of the Code, (c) Internal Distribution 3 as a distribution described in Section 355(a) of the Code, (d) Internal Distribution 4 as a distribution described in Section 355(a) of the Code, (e) the Alkermes Contribution and the Alkermes Distribution, taken together, as a reorganization described in Sections 355(a) and 368(a)(1)(D) of the Code, and (f) the Capital Stock of Mural US distributed in each Internal Distribution as “qualified property” for purposes of Sections 355(d), 355(e) and Section 361(c) of the Code.

 

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Tax Item” means, with respect to any Income Tax, any item of income, gain, loss, deduction, or credit.

Tax Opinions” means the opinions set forth in Schedule 1.1(b) delivered to Alkermes in connection with the Separation Transactions.

Tax Period” means, with respect to any Tax, the period for which the Tax is reported as provided under the Code or other applicable Law.

Tax Records” means any (a) Tax Returns, (b) Tax Return work papers, (c) documentation relating to any Tax Contests, and (d) any other books of account or records (whether or not in written, electronic or other tangible or intangible forms and whether or not stored on electronic or any other medium) required to be maintained under the Code or other applicable Laws or under any record retention agreement with any Tax Authority, in each case filed with respect to or otherwise relating to Taxes.

Tax Refund” means any refund of Taxes (including any overpayment of Taxes that can be refunded or, alternatively, credited or applied to future Taxes payable), including any interest paid on or with respect to such refund of Taxes.

Tax Return” or “Return” means any report of Taxes due, any claim for refund of Taxes paid, any information return with respect to Taxes, or any other similar report, statement, declaration, or document required to be filed under the Code or other Law with respect to Taxes, including any attachments, exhibits, or other materials submitted with any of the foregoing, and including any amendments or supplements to any of the foregoing.

Third Party” has the meaning set forth in the Separation Agreement.

Transaction Agreement” has the meaning set forth in the Separation Agreement.

Transfer Taxes” means all sales, use, transfer, real property transfer, intangible, recordation, registration, documentary, stamp or similar Taxes imposed on Separation Transaction (excluding, for the avoidance of doubt, any Income Taxes).

Treasury Regulations” means the regulations promulgated from time to time under the Code as in effect for the relevant Tax Period.

Unqualified Tax Opinion” means an unqualified “will” opinion of a Tax Advisor, which Tax Advisor is reasonably acceptable to Alkermes, on which Alkermes may rely to the effect that a transaction will not affect the Tax-Free Status. Any such opinion must assume that the Separation Transactions would have qualified for Tax-Free Status if the transaction in question did not occur.

 

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ARTICLE II

LIABILITY FOR TAXES AND DISTRIBUTION LOSSES

Section 2.1 General Rule.

(a) Alkermes Liability. Alkermes shall be liable for, and shall indemnify and hold harmless the Mural Group from and against any liability for:

(i) Taxes that are allocated to Alkermes under this Article II;

(ii) Separation Taxes;

(iii) any Taxes resulting from a breach of any of Alkermes’s covenants in this Agreement, the Separation Agreement or any Ancillary Agreement; and

(iv) any Distribution Losses that are the responsibility of Alkermes under Section 6.3.

(b) Mural Liability. Mural shall be liable for, and shall indemnify and hold harmless the Alkermes Group from and against any liability for:

(i) Taxes that are allocated to Mural under this Article II;

(ii) any Taxes resulting from a breach of any of Mural’s covenants in this Agreement, the Separation Agreement or any Ancillary Agreement; and

(iii) any Distribution Losses that are the responsibility of Mural under Section 6.3.

Section 2.2 Allocation Of Taxes For Pre-Distribution Periods. Except with respect to Taxes described in Section 2.1(a)(ii), Section 2.1(a)(iii), Section 2.1(a)(iv), Section 2.1(b)(ii) and Section 2.1(b)(iii), Taxes shall be allocated as follows:

(a) Allocation of Taxes Relating to Joint Returns. With respect to any Joint Return, Alkermes shall be responsible for any and all Taxes for Pre-Distribution Periods due with respect to or required to be reported on any such Tax Return (including any increase in such Tax as a result of a Final Determination) whether such Taxes are attributable to the Neuroscience Business or the Oncology Business.

(b) Allocation of Tax Relating to Separate Returns.

(i) Alkermes shall be responsible for any and all Taxes for (A) Complete Pre-Distribution Periods due with respect to or required to be reported on any Mural Separate Return and (B) all Tax Periods due with respect to or required to be reported on any Alkermes Separate Return (including, in each case, any increase in such Tax as a result of a Final Determination).

 

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(ii) Mural shall be responsible for any and all Taxes due with respect to or required to be reported on any Mural Separate Return for (A) Pre-Distribution Periods (other than Complete Pre-Distribution Periods) and (B) Post-Distribution Periods (including, in each case, any increase in such Tax as a result of a Final Determination).

ARTICLE III

PREPARATION AND FILING OF TAX RETURNS

Section 3.1 Alkermes’s Responsibility. Alkermes shall prepare and file, or cause to be prepared and filed:

(a) All Joint Returns that Alkermes or any of its Affiliates is legally responsible for preparing or filing under applicable Law; and

(b) Alkermes Separate Returns.

Section 3.2 Mural’s Responsibility. Mural shall prepare and file, or cause to be prepared and filed, all Tax Returns required to be filed by or with respect to members of the Mural Group other than those Tax Returns which Alkermes is required to prepare and file under Section 3.1.

Section 3.3 Cooperation. The Parties shall provide, and shall cause their Affiliates to provide, assistance and cooperation to one another in accordance with Article VII with respect to the preparation and filing of Tax Returns, including providing information required to be provided in Article VII.

Section 3.4 Tax Reporting Practices.

(a) Alkermes General Rule. Except as provided in Section 3.4(c), Alkermes shall prepare any Tax Return which it has the obligation and right to prepare and file, or cause to be prepared and filed, under Section 3.1, in accordance with the past practices, accounting methods, elections or conventions of Alkermes (“Past Practices”) used with respect to the items reflected on such Tax Return (unless there is no reasonable basis for the use of such Past Practices), and to the extent any items are not covered by Past Practices (or in the event that there is no reasonable basis for the use of such Past Practices), in accordance with reasonable Tax accounting practices selected by Alkermes.

(b) Mural General Rule. Except as provided in Section 3.4(c), with respect to any Tax Return that Mural has the obligation and right to prepare and file, or cause to be prepared and filed, under Section 3.2, such Tax Return shall be prepared in accordance with Past Practices used with respect to the items reflected on such Tax Returns (unless there is no reasonable basis for the use of such Past Practices), and to the extent any items are not covered by Past Practices (or in the event that there is no reasonable basis for the use of such Past Practices), in accordance with reasonable Tax accounting practices selected by Mural.

 

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(c) Reporting of Separation Transactions and Other Transactions.

(i) The Tax treatment of the Separation Transactions reported on any Tax Return shall be consistent with the treatment thereof in the Ruling Request, Ruling, Representation Letters and Tax Opinions, and the Tax treatment of the transactions contemplated by the Transition Services Agreement reported on any Tax Return shall be consistent with the treatment determined by Alkermes in its sole discretion, in each case taking into account the jurisdiction in which such Tax Returns are filed. Such treatment reported on any Tax Return for which Mural is the Responsible Party shall be consistent with that on any Tax Return filed or to be filed by Alkermes or any member of the Alkermes Group or caused to be filed by Alkermes. Notwithstanding the foregoing, Alkermes shall have the right to cause to be made a “protective” Section 336(e) Election in accordance with Section 3.5(b).

(ii) Each Party shall, and shall cause its Affiliates to, use reasonable best efforts to ensure the Intended Irish Tax Treatment is achieved and shall not take any action, cause or permit any action to be taken, fail to take any action or cause or permit any action to fail to be taken, which action or failure to act would reasonably be expected to impede or prevent the Intended Irish Tax Treatment.

(iii) Each Party shall, and shall cause its Affiliates to, treat the Alkermes Contribution, the Separation, and the Alkermes Distribution in a manner consistent with the Intended Irish Tax Treatment for all Tax purposes and file all Tax Returns in a manner consistent with the foregoing.

Section 3.5 Certain Elections.

(a) Consolidated or Combined Tax Returns. Mural will elect and join, and will cause its respective Affiliates to elect and join, in filing any Joint Returns that Alkermes determines are required to be filed or that Alkermes elects to file pursuant to Section 3.1(a).

(b) Protective Section 336(e) Election.

(i) The Parties agree that Alkermes in its sole discretion may make, or may cause the relevant member of the Alkermes Group to make, and Mural will, and will cause its Affiliates to, join in filing, timely protective elections under Section 336(e) of the Code and the Treasury Regulations issued thereunder, including under Treasury Regulation Sections 1.336-2(h)(1)(i) and 1.336-2(j), for each member of the Mural Group that is a domestic corporation for U.S. federal Tax purposes with respect to any Internal Distribution, as determined by Alkermes (a “Section 336(e) Election”). It is intended that a Section 336(e) Election will have no effect unless each such Internal Distribution is a “qualified stock disposition,” as defined in Treasury Regulation Section 1.336-1(b)(6), by reason of the application of Treasury Regulation Section 1.336-1(b)(5)(i)(B) or Treasury Regulation Section 1.336-1(b)(5)(ii).

 

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(ii) If Alkermes determines to make a Section 336(e) Election pursuant to Section 3.5(b)(i), Alkermes and Mural (and their respective Affiliates) shall cooperate in the preparation, completion and filing of the Section 336(e) Election, including filing any statements, amending any Tax Returns or undertaking such other actions reasonably necessary to carry out the Section 336(e) Election. Alkermes and its Affiliates shall reasonably determine the “Aggregate Deemed Asset Disposition Price” and the “Adjusted Grossed-Up Basis” (each as defined under applicable Treasury Regulations) and the allocation of such Aggregate Deemed Asset Disposition Price and Adjusted Grossed-Up Basis among the disposition date assets of Mural US and its Subsidiaries, each in accordance with Section 336(e) of the Code and the applicable Treasury Regulations (the “Section 336(e) Allocation Statement”), and shall provide Mural (A) a draft of such statement for its review and comment fifteen (15) Business Days prior to the due date for filing such statement and (B) a copy of such statement as filed. To the extent the Section 336(e) Election becomes effective, each Party agrees not to take any position (and to cause each of its Affiliates not to take any position) that is inconsistent with the Section 336(e) Election, including the Section 336(e) Allocation Statement, on any Tax Return, in connection with any Tax Contest or for any other Tax purposes (in each case, excluding any position taken for financial accounting purposes), except as may be required by a Final Determination.

Section 3.6 Right to Review Tax Returns. The Responsible Party with respect to any Tax Return shall make available for review by the Non-Responsible Party the portion of any draft of such Tax Return which is relevant to the determination of the Non-Responsible Party’s rights or obligations under this Agreement, if requested, to the extent (a) such Tax Return relates to Taxes that could reasonably be expected to be equal to or in excess of $100,000 and that are the subject of a Tax Contest and for which the Non-Responsible Party would reasonably be expected to be liable, (b) such Tax Return relates to a Tax Benefit that could reasonably be expected to be equal to or in excess of $100,000 and for which the Non-Responsible Party would reasonably be expected to have a claim under this Agreement, or (c) the Non-Responsible Party reasonably determines that it must inspect such Tax Return to confirm compliance with the terms of this Agreement. The Responsible Party shall (x) use its reasonable best efforts to make such portion of such Tax Return available for review as required under this paragraph sufficiently in advance of the due date for filing of such Tax Return to provide the Non-Responsible Party with a meaningful opportunity to analyze and comment on such Tax Return and (y) use reasonable efforts to have such Tax Return modified before filing in accordance with any reasonable comments of the Non-Responsible Party. The Parties shall attempt in good faith to resolve any issues arising out of the review of such Tax Return.

Section 3.7 Adjustment Requests and Mural Carrybacks.

(a) Mural hereby agrees that, unless Alkermes consents in writing (which consent may not be unreasonably withheld, conditioned or delayed) or as required by Law, (i) no member of the Mural Group shall file an Adjustment Request with respect to any Tax Return for a Pre-Distribution Period or Straddle Period, and (ii) any available elections to waive the right to claim in any Pre-Distribution Period with respect to any Tax Return any Mural Carryback arising in a Post-Distribution Period shall be made, and no affirmative election shall be made to claim any such Mural Carryback.

 

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(b) Alkermes hereby agrees that, unless Mural consents in writing (which consent may not be unreasonably withheld, conditioned, or delayed) or as required by Law, no member of the Alkermes Group shall file any Adjustment Request with respect to any Tax Return if the result could reasonably be expected to change the Tax liability for which any member of the Mural Group is liable under Section 2.1(b) for any Tax Period in an amount equal to or in excess of $100,000.

Section 3.8 Apportionment of Tax Attributes. Alkermes shall advise Mural in writing of a reasonable allocation of any Tax Attributes, which Alkermes shall determine in accordance with a reasonable interpretation of the Code, Treasury Regulations, and any other applicable Law. The Parties and all members of their respective Groups shall prepare all Tax Returns in accordance with such allocation. Notwithstanding anything to the contrary contained herein, for the avoidance of doubt, the Parties agree that Alkermes is not warranting or guaranteeing the amount of any such Tax Attributes.

ARTICLE IV

TAX PAYMENTS

Section 4.1 Payment of Joint Return and Separate Return Taxes. Each Party shall pay, or shall cause to be paid, to the applicable Tax Authority when due all Taxes owed by such Party or a member of such Party’s Group with respect to a Joint Return or Separate Return.

Section 4.2 Indemnification Payments.

(a) If any Party (the “Payor”) is required under applicable Law to pay to a Tax Authority a Tax that another Party (the “Required Party”) is liable for under this Agreement, the Payor shall provide notice to the Required Party for the amount due, accompanied by evidence of payment and a statement detailing the Taxes paid and describing in reasonable detail the particulars relating thereto. Such Required Party shall have a period of thirty (30) days after the receipt of notice to respond thereto. Unless the Required Party disputes the amount it is liable for under this Agreement, the Required Party shall reimburse the Payor within forty-five (45) Business Days of delivery by the Payor of the notice described above. To the extent the Required Party does not agree with the amount the Payor claims the Required Party is liable for under this Agreement, the dispute shall be resolved in accordance with Article XIII. Any reimbursement shall include interest on the Tax payment computed at the Prime Rate based on the number of days from the date of the payment to the Tax Authority to the date of reimbursement under this Section 4.2.

(b) Any Tax indemnity payment required to be made by the Required Party pursuant to this Section 4.2 shall be reduced by any corresponding Tax Benefit payment required to be made to the Required Party by the other Party pursuant to Article V. For the avoidance of doubt, a Tax Benefit payment is treated as corresponding to a Tax indemnity payment to the extent the Tax Benefit realized is directly attributable to the same Tax Item (or adjustment of such Tax Item pursuant to a Final Determination) that gave rise to the Tax indemnity payment.

(c) All indemnification payments under this Agreement shall be made by Alkermes directly to Mural and by Mural directly to Alkermes; provided, however, that if the Parties mutually agree with respect to any such indemnification payment, any member of the Alkermes Group, on the one hand, may make such indemnification payment to any member of the Mural Group, on the other hand, and vice versa. All indemnification payments shall be treated in the manner described in Article XII.

 

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ARTICLE V

TAX BENEFITS

Section 5.1 Section 336(e) Tax Benefits.

(a) If a member of the Mural Group realizes any Tax Benefit resulting from, attributable to or arising in connection with a Section 336(e) Election, and such Tax Benefit would not have arisen but for such election (determined on a “with and without” basis), Mural shall make a payment to Alkermes within thirty (30) Business Days following each such realization of a Tax Benefit, in an amount equal to (A) the product of (x) such Tax Benefit, times (y) the percentage of the total related Distribution Losses represented by the portion of such total Distribution Losses for which the Alkermes Group is responsible pursuant to Section 6.3, plus (B) interest on such amount computed at the Prime Rate based on the number of days from the date of such actual realization of the Tax Benefit to the date of payment of such amount under this Section 5.1; provided, however, that (i) such payments shall be reduced by all reasonable costs incurred by the Mural Group to amend any Tax Returns or other governmental filings, and (ii) if a Tax Benefit is realized (determined on a “with and without” basis) as a result of an audit adjustment by a Tax Authority for a tax period that has already been completed as of the time of such adjustment, then, solely for purposes of determining (x) the date on which Mural must make a payment to Alkermes in respect of such Tax Benefit, (y) the date on which Mural must provide the notice described in Section 5.1(b) , and (z) the date from which interest computed at the Prime Rate accrues on such amount, such Tax Benefit shall be treated as having been realized as of the date on which the applicable Tax Authority issued such adjustment.

(b) No later than thirty (30) Business Days after a Tax Benefit described in Section 5.1(a) is realized by a member of the Mural Group, Mural shall provide Alkermes with notice of the amount payable to Alkermes by Mural pursuant to Section 5.1(a). In the event that Alkermes disagrees with any such calculation described in this Section 5.1(b), Alkermes shall so notify Mural in writing within thirty (30) Business Days of receiving the written calculation set forth above in this Section 5.1(b). Alkermes and Mural shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable under Section 5.1(a) shall be determined in accordance with the disagreement resolution provisions of Article XIII as promptly as practicable.

Section 5.2 Other Tax Benefits.

(a) If (i) a member of the Mural Group actually realizes any Tax Benefit, other than a Tax Benefit resulting from a Section 336(e) Election, as a result of any liability, obligation, loss or payment (each, a “Loss”) for which a member of the Alkermes Group is required to indemnify any member of the Mural Group pursuant to this Agreement, the Separation Agreement or any Ancillary Agreement (in each case, without duplication of any amounts payable or taken into account under this Agreement, the Separation Agreement or any Ancillary Agreement), or (ii) if a member of the Alkermes Group actually realizes any Tax Benefit as a result of any Loss for which a member of the Mural Group is required to indemnify

 

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any member of the Alkermes Group pursuant to this Agreement, the Separation Agreement or any Ancillary Agreement (in each case, without duplication of any amounts payable or taken into account under this Agreement, the Separation Agreement or any Ancillary Agreement), and, in each case, such Tax Benefit would not have arisen but for such adjustment or Loss (determined on a “with and without” basis), Mural (in the case of the foregoing clause (i)) or Alkermes (in the case of the foregoing clause (ii)), as the case may be, shall make a payment to the other Party in an amount equal to the amount of such actually realized Tax Benefit in cash within ten (10) Business Days of actually realizing such Tax Benefit. To the extent that any Tax Benefit (or portion thereof) in respect of which any amounts were paid over pursuant to the foregoing provisions of this Section 5.2(a) is subsequently disallowed by the applicable Tax Authority, the Party that received such amounts shall promptly repay such amounts (together with any penalties, interest or other charges imposed by the relevant Tax Authority) to the other Party.

(b) No later than thirty (30) Business Days after a Tax Benefit described in Section 5.2(a) is realized by a member of the Mural Group or a member of the Alkermes Group, Mural or Alkermes, as the case may be, shall provide the other Party with notice of the amount payable to the other Party pursuant to Section 5.2(a). In the event that Mural or Alkermes, as the case may be, disagrees with any such calculation described in this Section 5.2(a), such Party shall so notify the other Party in writing within thirty (30) Business Days of receiving the written calculation set forth above in this Section 5.2(a). Alkermes and Mural shall endeavor in good faith to resolve such disagreement, and, failing that, the amount payable pursuant to Section 5.2(a) shall be determined in accordance with the disagreement resolution provisions of Article XIII as promptly as practicable.

Section 5.3 Tax Refunds. Alkermes shall be entitled (subject to the limitations provided in Section 3.7 of this Agreement) to any refund (and any interest thereon received from the applicable Tax Authority) of Taxes for which any member of the Alkermes Group is liable hereunder, and Mural shall be entitled (subject to the limitations provided in Section 3.7 of this Agreement) to any refund (and any interest thereon received from the applicable Tax Authority) of Taxes for which Mural is liable hereunder. A member of a Group receiving a refund to which a member of the other Group is entitled hereunder shall pay over such refund to such other Party within twenty (20) Business Days after such refund is received (together with interest computed at the Prime Rate based on the number of days from the date the refund was received to the date the refund was paid over).

ARTICLE VI

TAX-FREE STATUS

Section 6.1 Restrictions on Mural.

(a) Mural will not take or fail to take, or permit any Mural Affiliate, as the case may be, to take or fail to take, any action (i) where such action or failure to act would be inconsistent with or cause to be untrue any statement, information, covenant or representation in the Ruling Request, Ruling, Representation Letters, Tax Opinions, the Intended Irish Tax Treatment, any Unqualified Tax Opinion, or any Post-Distribution Ruling, or (ii) which adversely affects or could reasonably be expected to adversely affect the Tax-Free Status of the Separation Transactions.

 

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(b) During the Restricted Period, Mural shall continue and cause to be continued the Active Trade or Business of the Mural SAG and cause Mural US to continue the Active Trade or Business of the Mural US SAG.

(c) During the Restricted Period, Mural shall not, and shall not permit any Mural Affiliate to:

(i) enter into any Proposed Acquisition Transaction, approve any Proposed Acquisition Transaction for any purpose, or to the extent Mural or any other member of the Mural Group has the right to prohibit any Proposed Acquisition Transaction, allow any Proposed Acquisition Transaction to occur (including, but not limited to, by (A) redeeming rights under a shareholder rights plan, (B) finding a tender offer to be a “permitted offer” under any such plan or otherwise causing any such plan to be inapplicable or neutralized with respect to any Proposed Acquisition Transaction, (C) approving any Proposed Acquisition Transaction, whether for purposes of Section 203 of the Delaware General Corporation Law or any similar corporate statute, any “fair price” or other provision of Mural’s articles of association, (D) amending its articles of association, certificate of incorporation or other organizational documents to modify the provisions governing its board of directors or approving or seeking approval of any such amendment, or otherwise) with respect to Mural;

(ii) merge or consolidate with any other Person, liquidate or partially liquidate;

(iii) engage in any transaction that would result in Mural or Mural US ceasing to be a company engaged in the Active Trade or Business;

(iv) make or revoke any election under Treasury Regulation Section 301.7701-3;

(v) in one or more transactions, sell, transfer or dispose of, or enter into any other transaction(s) treated for U.S. federal Income Tax purposes as a sale or exchange of (or approve or allow the sale, transfer or other disposition of, or other transaction(s) treated for U.S. federal Income Tax purposes as a sale or exchange of) 10% or more of the net or gross assets of any Active Trade or Business (such percentage to be measured based on fair market value as of the Distribution Date without regard to any liquid proceeds received as part of the Separation Transactions), in each case other than (A) sales or transfers of assets in the ordinary course of business, (B) any cash paid to acquire assets from an unrelated Person in an arm’s-length transaction, or (C) any assets transferred to a Person that is disregarded as an entity separate from the transferor for U.S. federal Income Tax purposes;

(vi) reduce the number of full-time employees engaged in the conduct of any Active Trade or Business and transferred as part of the Separation Transactions by 10% or more (such percentage to be measured based on headcount of full-time employees as of the Distribution Date);

 

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(vii) amend the articles of association, certificate of incorporation (or other organizational documents), or take any other action, whether through a shareholder vote or otherwise, affecting the voting rights of Capital Stock of Mural or Mural US (including, without limitation, through the conversion of one class of Capital Stock of Mural or Mural US into another class of Capital Stock of Mural or Mural US); or

(viii) redeem or otherwise repurchase, directly or through any Affiliate, any of the outstanding Capital Stock of Mural or Mural US, or rights to acquire such stock, after the Distribution, other than Specified Redemptions or through repurchases meeting the requirements of Section 4.05(1)(b) of Revenue Procedure 96-30 (without regard to the effect of Revenue Procedure 2003-48 on Revenue Procedure 96-30 and without regard to any liquid proceeds received as part of the Separation Transactions), but, in the case of such latter repurchases, not with any proceeds received as part of the Separation Transactions;

provided, however, that Mural shall be permitted to take such action or one or more actions set forth in the foregoing clauses (i) through (vii) if, prior to taking any such actions, (1) Mural shall have received a private letter ruling from the IRS that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate (a “Post-Distribution Ruling”), in form and substance satisfactory to Alkermes (including any representations made in connection with such Post-Distribution Ruling or assumptions that may be included in such Post-Distribution Ruling); (2) Mural shall have received an Unqualified Tax Opinion that confirms that such action or actions will not result in Distribution Taxes, taking into account such actions and any other relevant transactions in the aggregate, in form and substance satisfactory to Alkermes (including any representations made in connection with such Unqualified Tax Opinion or assumptions that may be included in such Unqualified Tax Opinion); or (3) Alkermes shall have waived the requirement to obtain such Post-Distribution Ruling or Unqualified Tax Opinion. Unless Alkermes shall have waived the requirement to obtain the Post-Distribution Ruling or Unqualified Tax Opinion described in this paragraph, Mural shall provide a copy of the Post-Distribution Ruling or the Unqualified Tax Opinion described in this paragraph to Alkermes as soon as practicable prior to taking or failing to take any action set forth in the foregoing clause (i) through (vii). Alkermes’s evaluation of a Post-Distribution Ruling or Unqualified Tax Opinion may consider, among other factors, the appropriateness of any underlying assumptions, representations, and covenants made in connection with such Post-Distribution Ruling or Unqualified Tax Opinion. Mural shall bear all costs and expenses of securing any such Post-Distribution Ruling or Unqualified Tax Opinion and shall reimburse Alkermes for all reasonable out-of-pocket costs and expenses that Alkermes may incur in good faith in seeking to obtain or evaluate any such Post-Distribution Ruling or Unqualified Tax Opinion.

(d) Mural shall not take or fail to take any action, in the Restricted Period, that would reasonably be expected to increase the Tax liability of the Alkermes Group or affect the Intended Irish Tax Treatment in connection with the Separation Transactions.

 

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Section 6.2 Restrictions on Alkermes. Alkermes agrees that it will not take or fail to take, or permit any Alkermes Affiliate, as the case may be, to take or fail to take, any action where such action or failure to act would be inconsistent with or cause to be untrue any statement, information, covenant or representation in the Ruling Request, Ruling, Representation Letters, Tax Opinions, the Intended Irish Tax Treatment, any Unqualified Tax Opinion, or any Post-Distribution Ruling. Alkermes agrees that it will not take or fail to take, or permit any Alkermes Affiliate, as the case may be, to take or fail to take, any action which adversely affects or could reasonably be expected to adversely affect the Tax-Free Status of any Separation Transaction; provided, however, that this Section 6.2 shall not be construed as obligating Alkermes to consummate the Separation or the Distribution, nor shall it be construed as preventing Alkermes from terminating the Separation Agreement pursuant to Section 10.10 thereof. For the avoidance of doubt, Mural’s sole recourse for violations of this Section 6.2 shall be as set forth in Section 6.3.

Section 6.3 Liability For Distribution Losses. In the event that, pursuant to a Final Determination, Distribution Taxes become due and payable to a Tax Authority, then, notwithstanding anything to the contrary in this Agreement:

(a) if and to the extent such Distribution Taxes and any related Distribution Losses result from Section 355(e) of the Code:

(i) as a result of an acquisition of a Fifty-Percent or Greater Interest in Alkermes, then Alkermes shall be responsible for such Distribution Losses.

(ii) as a result of an acquisition of a Fifty-Percent or Greater Interest in Mural, then Mural shall be responsible for such Distribution Losses.

(b) if and to the extent such Distribution Taxes and any related Distribution Losses do not result from Section 355(e) of the Code:

(i) if such Distribution Taxes are attributable to a Mural Disqualifying Act and are not also attributable to a Alkermes Disqualifying Act, then Mural shall be responsible for such Distribution Losses;

(ii) if such Distribution Taxes are attributable to a Alkermes Disqualifying Act and are not also attributable to a Mural Disqualifying Act, then Alkermes shall be responsible for such Distribution Losses;

(iii) if such Distribution Taxes are attributable to both a Mural Disqualifying Act and a Alkermes Disqualifying Act, then responsibility for any Distribution Losses shall be shared by Alkermes and Mural according to relative fault; and

(iv) if such Distribution Taxes are not attributable to a Alkermes Disqualifying Act or a Mural Disqualifying Act, then Alkermes shall be responsible for any Distribution Losses.

 

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ARTICLE VII

ASSISTANCE AND COOPERATION

Section 7.1 Assistance and Cooperation.

(a) The Parties shall cooperate (and cause their respective Affiliates to cooperate) with each other and with each other’s agents, including accounting firms and legal counsel, in connection with Tax matters relating to the Parties and their Affiliates including (i) preparation and filing of Tax Returns, (ii) determining the liability for and amount of any Taxes due (including estimated Taxes) or the right to and amount of any refund of Taxes, (iii) examinations of Tax Returns, and (iv) any administrative or judicial proceeding in respect of Taxes assessed or proposed to be assessed. Such cooperation shall include making all information and documents in their possession relating to the other Party and its Affiliates reasonably available to such other Party as provided in Article VIII of this Agreement. Each of the Parties shall also make available to the other, as reasonably requested and available, personnel (including officers, directors, employees and agents of the Parties or their respective Affiliates) responsible for preparing, maintaining, and interpreting information and documents relevant to Taxes, and personnel reasonably required as witnesses or for purposes of providing information or documents in connection with any administrative or judicial proceedings relating to Taxes. The Mural Group shall cooperate with Alkermes and take any and all actions reasonably requested by Alkermes in connection with obtaining the Unqualified Tax Opinion or Post-Distribution Ruling (including, without limitation, by making any new representation or covenant, confirming any previously made representation or covenant or providing any materials or information requested by any Tax Advisor; provided that Mural shall not be required to make or confirm any representation or covenant that is inconsistent with historical facts or as to future matters or events over which it has no control).

(b) Any information or documents provided under this Article VII shall be kept confidential by the Party receiving the information or documents, except as may otherwise be necessary in connection with the filing of Tax Returns or in connection with any administrative or judicial proceedings relating to Taxes. Notwithstanding any other provision of this Agreement, the Separation Agreement or any Ancillary Agreement, (i) neither Alkermes nor any Alkermes Affiliate shall be required to provide Mural or any Mural Affiliate or any other Person access to or copies of any information, documents or procedures (including the proceedings of any Tax Contest) other than information, documents or procedures that relate solely to Mural, the business or assets of Mural or any Mural Affiliate, (ii) in no event shall Alkermes or any Alkermes Affiliate be required to provide Mural, any Mural Affiliate or any other Person access to or copies of any information or documents if such action could reasonably be expected to result in the waiver of any Privilege, and (iii) in no event shall Mural or any Mural Affiliate be required to provide Alkermes, any Alkermes Affiliate or any other Person access to or copies of any information or documents if such action could reasonably be expected to result in the waiver of any Privilege. In addition, in the event that Alkermes determines that the provision of any information or documents to Mural or any Mural Affiliate, or Mural determines that the provision of any information or documents to Alkermes or any Alkermes Affiliate, could be commercially detrimental, violate any Law or agreement or waive any Privilege, the Parties shall use reasonable best efforts to permit compliance with its obligations under this Article VII in a manner that avoids any such harm or consequence.

 

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Section 7.2 Income Tax Return Information. Each Party shall provide to the other Party information and documents relating to its Group reasonably required by the other Party to prepare Tax Returns, including any pro forma returns required by the Responsible Party for purposes of preparing such Tax Returns. Any information or documents the Responsible Party requires to prepare such Tax Returns shall be provided in such form as the Responsible Party reasonably requests and at or prior to the time reasonably specified by the Responsible Party so as to enable the Responsible Party to file such Tax Returns on a timely basis. Mural and Alkermes acknowledge that time is of the essence in relation to any request for information, assistance or cooperation made by Alkermes or Mural pursuant to Section 7.1 or this Section 7.2. Mural and Alkermes acknowledge that failure to conform to the reasonable deadlines set by Alkermes or Mural could cause irreparable harm.

Section 7.3 Reliance by Alkermes. If any member of the Mural Group supplies information to a member of the Alkermes Group in connection with any Tax position and an officer of a member of the Alkermes Group signs a statement or other document under penalties of perjury in reliance upon the accuracy of such information, then upon the written request of such member of the Alkermes Group identifying the information being so relied upon, the chief financial officer of Mural (or any officer of Mural as designated by the chief financial officer of Mural) shall certify in writing that to his or her knowledge (based upon consultation with appropriate employees and advisers) the information so supplied is accurate and complete.

Section 7.4 Reliance by Mural. If any member of the Alkermes Group supplies information to a member of the Mural Group in connection with any Tax position and an officer of a member of the Mural Group signs a statement or other document under penalties of perjury in reliance upon the accuracy of such information, then upon the written request of such member of the Mural Group identifying the information being so relied upon, the chief financial officer of Alkermes (or any officer of Alkermes as designated by the chief financial officer of Alkermes) shall certify in writing that to his or her knowledge (based upon consultation with appropriate employees and advisers) the information so supplied is accurate and complete.

ARTICLE VIII

TAX RECORDS

Section 8.1 Retention of Tax Records. Each Party shall preserve and keep all Tax Records exclusively relating to the assets and activities of its Group for Pre-Distribution Periods, and Alkermes shall preserve and keep all other Tax Records relating to Taxes of the Groups for Pre-Distribution Periods, for so long as the contents thereof may be material in the administration of any matter under the Code or other applicable Law, but in any event until the later of (i) the expiration of any applicable statutes of limitations, or (ii) seven (7) years after the Distribution Date (such later date, the “Retention Date”). After the Retention Date, each Party may dispose of such Tax Records upon sixty (60) Business Days’ prior written notice to the other Party. If, prior to the Retention Date, a Party reasonably determines that any Tax Records which it would otherwise be required to preserve and keep under this Article VIII are no longer material in the administration of any matter under the Code or other applicable Law and the other Party agrees, then such first Party may dispose of such Tax Records upon sixty (60) Business Days’ prior notice to the other Party. Any notice of an intent to dispose given pursuant to this Section 8.1 shall include a list of the Tax Records to be disposed of describing in reasonable

 

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detail each file, book, or other record accumulation being disposed. The notified Party shall have the opportunity, at its cost and expense, to copy or remove, within such sixty (60) Business Day period, all or any part of such Tax Records. If, at any time prior to the Retention Date, a Party determines to decommission or otherwise discontinue any computer program or information technology system used to access or store any Tax Records, then such Party may decommission or discontinue such program or system upon ninety (90) Business Days’ prior notice to the other Party and the other Party shall have the opportunity, at its cost and expense, to copy, within such ninety (90) Business Day period, all or any part of the underlying data relating to the Tax Records accessed by or stored on such program or system.

Section 8.2 Access to Tax Records. The Parties and their respective Affiliates shall make available to each other for inspection and copying during normal business hours upon reasonable notice all Tax Records (and, for the avoidance of doubt, any pertinent underlying data accessed or stored on any computer program or information technology system) in their possession and shall permit the other Party and its Affiliates, authorized agents and representatives and any representative of a Tax Authority or other Tax auditor direct access, at the cost and expense of such other Party, during normal business hours upon reasonable notice to any computer program or information technology system used to access or store any Tax Records, in each case to the extent reasonably required by the other Party in connection with the preparation of Tax Returns or financial accounting statements, audits, litigation, or the resolution of items under this Agreement.

Section 8.3 Preservation of Privilege. No Party or any of its Affiliates shall provide access to, copies of, or otherwise disclose to any Person any documentation relating to Taxes existing prior to the Distribution Date to which Privilege may reasonably be asserted without the prior written consent of the other Party, such consent not to be unreasonably withheld.

ARTICLE IX

TAX CONTESTS

Section 9.1 Notice. Each of the Parties shall provide prompt notice to the other Party of any written communication from a Tax Authority regarding any pending Tax audit, assessment or proceeding or other Tax Contest of which it becomes aware related to Taxes for Tax Periods (i) for which it may be indemnified by the other Party hereunder or (ii) for which it may be required to indemnify the other Party hereunder (excluding, in the case of clause (ii), any Taxes attributable to any Post-Distribution Period), or otherwise relating to the Tax-Free Status or the Separation Transactions (including the resolution of any Tax Contest relating thereto). Such notice shall attach copies of the pertinent portion of any written communication from a Tax Authority and contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and shall be accompanied by copies of any notice and other documents received from any Tax Authority in respect of any such matters.

 

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Section 9.2 Control of Tax Contests.

(a) Joint Return. In the case of any Tax Contest with respect to any Joint Return, Alkermes shall have exclusive control over the Tax Contest, including exclusive authority with respect to any settlement of such Tax liability; provided, however, that in the case of any Tax Contest with respect to any Joint Return regarding Distribution Taxes for which Mural may reasonably be expected to become liable to make any indemnification payment to Alkermes under this Agreement, Mural shall have the right to participate in such Tax Contest, and Alkermes shall not settle such Tax Contest without the consent of Mural, which consent shall not be unreasonably withheld, conditioned or delayed, taking into account the likelihood of success of such Tax Contest on its merits.

(b) Separate Returns. In the case of any Tax Contest with respect to any Separate Return, the Party having liability for the Tax pursuant to Article II hereof shall have exclusive control over the Tax Contest, including exclusive authority with respect to any settlement of such Tax liability, subject to Section 9.2(b)(i) and (ii) below.

(i) Settlement Rights. The Controlling Party shall have the sole right to contest, litigate, compromise and settle any Tax Contest without obtaining the prior consent of the Non-Controlling Party, provided, however, that the Controlling Party shall not settle any Tax Contest with respect to which the Non-Controlling Party may reasonably be expected to become liable to make any indemnification payment to the Controlling Party under this Agreement without the Non-Controlling Party’s prior written consent (which consent may not be unreasonably withheld, conditioned, or delayed). Unless waived by the Parties in writing, in connection with any potential adjustment in a Tax Contest as a result of which adjustment the Non-Controlling Party may reasonably be expected to become liable to make any indemnification payment to the Controlling Party under this Agreement: (A) the Controlling Party shall keep the Non-Controlling Party informed in a timely manner of all actions taken or proposed to be taken by the Controlling Party with respect to such potential adjustment in such Tax Contest; (B) the Controlling Party shall timely provide the Non-Controlling Party copies of any written materials relating to such potential adjustment in such Tax Contest received from any Tax Authority; (C) the Controlling Party shall timely provide the Non-Controlling Party with copies of any correspondence or filings submitted to any Tax Authority or judicial authority in connection with such potential adjustment in such Tax Contest; (D) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such potential adjustment in such Tax Contest; and (E) the Controlling Party shall defend such Tax Contest diligently and in good faith. The failure of the Controlling Party to take any action specified in the preceding sentence with respect to the Non-Controlling Party shall not relieve the Non-Controlling Party of any liability and/or obligation which it may have to the Controlling Party under this Agreement except to the extent that the Non-Controlling Party was actually harmed by such failure, and in no event shall such failure relieve the Non-Controlling Party from any other liability or obligation which it may have to the Controlling Party. In the case of any Tax Contest described in this Section 9.2(b), “Controlling Party” means the Party entitled to control the Tax Contest under such section and “Non-Controlling Party” means the other Party.

 

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(ii) Tax Contest Participation. Unless waived by the Parties in writing, the Controlling Party shall provide the Non-Controlling Party with written notice reasonably in advance of, and the Non-Controlling Party shall be invited to attend, any formally scheduled meetings with Tax Authorities or hearings or proceedings before any judicial authorities in connection with any potential adjustment in a Tax Contest pursuant to which the Non-Controlling Party may reasonably be expected to become liable to make any indemnification payment to the Controlling Party under this Agreement. The failure of the Controlling Party to provide any notice specified in this Section 9.2(b)(ii) to the Non-Controlling Party shall not relieve the Non-Controlling Party of any liability or obligation which it may have to the Controlling Party under this Agreement except to the extent that the Non-Controlling Party was actually harmed by such failure, and in no event shall such failure relieve the Non-Controlling Party from any other liability or obligation which it may have to the Controlling Party.

ARTICLE X

EFFECTIVE DATE

This Agreement shall be effective as of the Distribution Effective Time.

ARTICLE XI

SURVIVAL OF OBLIGATIONS

The representations, warranties, covenants and agreements set forth in this Agreement shall be unconditional and absolute and shall remain in effect without limitation as to time.

ARTICLE XII

TAX TREATMENT OF PAYMENTS

Section 12.1 Gross-Up of Indemnification Payments Made Pursuant to this Agreement. Except to the extent provided in Section 12.2, any Tax indemnity payment made by a Party under this Agreement shall be increased as necessary so that after making all payments in respect to Taxes imposed on, required to be withheld with respect to, or attributable to such indemnity payment, the recipient Party receives an amount equal to the sum it would have received had no such Taxes been imposed.

Section 12.2 Interest. Anything herein to the contrary notwithstanding, to the extent one Party makes a payment of interest to another Party under this Agreement with respect to the period from the date that the Party receiving the interest payment made a payment of Tax to a Tax Authority to the date that the Party making the interest payment reimbursed the Party receiving the interest payment for such Tax payment, the interest payment shall be treated as interest expense to the Party making such payment (deductible to the extent provided by Law) and as interest income by the Party receiving such payment (includible in income to the extent provided by Law). The amount of the payment shall not be adjusted to take into account any reduction in Tax to the Party making such payment or increase in Tax to the Party receiving such payment.

 

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ARTICLE XIII

DISPUTE RESOLUTION

Section 13.1 Negotiation. A Party seeking resolution of a controversy, dispute or Action arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity or breach of this Agreement or otherwise arising out of, or in any way related to, this Agreement or the transactions contemplated hereby, including any Action based on contract, tort, statute or constitution (collectively, “Disputes”), shall provide written notice of such Dispute to the other Party, specifying the terms of such Dispute in reasonable detail (“Dispute Notice”). The appropriate executives of the Parties who have authority to settle the Dispute (or such other individuals designated by the respective executives) shall attempt to resolve the Dispute through good faith negotiation for a reasonable period of time; provided, that such reasonable period shall not, unless otherwise agreed by the Parties in writing, exceed thirty (30) days from the time of receipt by a Party of the Dispute Notice. If the Dispute has not been resolved within thirty (30) days after receipt of the Dispute Notice, the respective chief executive officers or their respective designees (with full settlement authority) of Alkermes and Mural shall meet in person (or where necessary, by phone) at a mutually acceptable time and, if applicable, place, and thereafter as often as they reasonably deem necessary, to attempt in good faith to resolve the Dispute. Any contractual time period or deadline under this Agreement to which such Dispute relates occurring after the Dispute Notice is received shall not be deemed to have passed until such Dispute has been resolved pursuant to this Article XIII.

Section 13.2 Arbitration. Any Dispute that is not resolved pursuant to Section 13.1 within thirty (30) days after receipt of a Dispute Notice shall be resolved by final and binding arbitration pursuant to the procedures set forth in Section 8.2 of the Separation Agreement.

Section 13.3 Referral To Tax Advisor For Computational or Tax Law Disputes. Notwithstanding anything to the contrary in Article XIII, with respect to any Dispute involving one or more computational matters or pure questions of Tax Law, if the Parties are not able to resolve the Dispute through the negotiation process set forth in Section 13.1, then such computational matters or pure questions of Tax Law (each, a “Disputed Tax Matter) will be referred to a Tax Advisor acceptable to each of the Parties to act as an arbitrator solely in order to resolve the Disputed Tax Matters. In the event that the Parties are unable to agree upon a Tax Advisor within forty-five (45) days of receipt of a Dispute Notice, the arbitrator or arbitrators of the underlying Dispute under Section 13.2 shall select a Tax Advisor on behalf of the Parties to act as an arbitrator in order to resolve the Disputed Tax Matters. The Tax Advisor may, in its discretion, obtain the services of any third-party appraiser, accounting firm or consultant that the Tax Advisor deems necessary to assist it in resolving such disagreement. The Tax Advisor shall furnish written notice to the Parties of its resolution of any such Dispute Tax Matters as soon as practical, but in any event no later than thirty (30) Business Days after its acceptance of the matter for resolution. Any such resolution by the Tax Advisor will be conclusive and binding on the Parties, and shall not be reviewable by the arbitrator or arbitrators of the underlying Dispute under Section 13.2. Following receipt of the Tax Advisor’s written notice to the Parties of its resolution of the Dispute Tax Matters, the Parties shall each take or cause to be taken any action necessary to implement such resolution of the Tax Advisor. Each Party shall pay its own fees and expenses (including the fees and expenses of its representatives) incurred in connection with the referral of the Disputed Tax Matters to the Tax Advisor. All fees and expenses of the Tax Advisor in connection with such referral shall be shared equally by the Parties. For the avoidance of doubt, the arbitrator or arbitrators of the underlying Dispute under Section 13.2 shall resolve all portions of any Dispute that are not Disputed Tax Matters, and shall resolve any question as to whether any portion of a Dispute is a Disputed Tax Matter.

 

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Section 13.4 Continuity of Service and Performance. Unless otherwise agreed in writing, the Parties shall continue to provide service and honor all other commitments under this Agreement during the course of a Dispute with respect to all matters not subject to such Dispute.

Section 13.5 Injunctive or Other Equity Relief. Nothing contained in this Agreement shall deny any Party the right to seek injunctive or other equitable relief in the context of a bona fide emergency or prospective irreparable harm, and such an action may be filed and maintained notwithstanding any ongoing arbitration proceeding; provided, however, that any other relief not expressly permitted under this Section 13.5 must be pursued in accordance with Section 13.2, with all remedies being cumulative to the extent allowed by applicable Law. The Parties further agree that irreparable harm would occur, and thus need not be established, in an action to enforce the covenants set forth in Section 6.1, and that such action may be brought pursuant to this Section 13.5. The Parties further agree that any action brought under this Section 13.5 shall be brought exclusively in the courts within the State of Delaware set forth in Section 14.15 and that such courts shall have personal jurisdiction over the Parties in such action.

ARTICLE XIV

GENERAL PROVISIONS

Section 14.1 Complete Agreement; Construction. This Agreement, together with the Separation Agreement and the Ancillary Agreements, shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, course of dealings and writings with respect to such subject matter; for the avoidance of doubt, the preceding clause shall apply to all other agreements, whether or not written, in respect of any Tax between or among any member or members of the Alkermes Group, on the one hand, and any member or members of the Mural Group, on the other hand, which agreements shall be of no further effect between the Parties and any rights or obligations existing thereunder shall be fully and finally settled, calculated as of the date hereof. In the event and to the extent that there shall be a conflict between the provisions of the Separation Agreement and the provisions of this Agreement, this Agreement shall control. Except as expressly set forth in the Separation Agreement or any Ancillary Agreement: (a) all matters to the extent relating to Taxes and Tax Returns of the Parties and their respective Subsidiaries shall be governed exclusively by this Agreement; and (b) for the avoidance of doubt, in the event of any conflict between the Separation Agreement or any Ancillary Agreement, on the one hand, and this Agreement, on the other hand, with respect to such matters, the terms and conditions of this Agreement shall govern.

Section 14.2 Transaction Agreements. Except as expressly set forth herein, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the other Transaction Agreements.

Section 14.3 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to each of the Parties. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

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Section 14.4 Survival of Agreement. Except as otherwise contemplated by this Agreement, all covenants and agreements of the Parties contained in this Agreement shall survive the Distribution Effective Time and remain in full force and effect in accordance with their applicable terms.

Section 14.5 Expenses. Except as otherwise expressly provided in this Agreement, each party and its Affiliates shall bear their own expenses incurred in connection with preparation of Tax Returns, Tax Contests, and other matters related to Taxes under the provisions of this Agreement.

Section 14.6 Notices. All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by email with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 14.6):

To Alkermes:

Alkermes plc

c/o Alkermes, Inc.

900 Winter Street

Waltham, Massachusetts 02451

Attn: David Gaffin

Email:

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

Goodwin Procter LLP

100 Northern Avenue

Boston, Massachusetts 02210

Attn:    Blake Liggio

    Caitlin Tompkins

Email:    bliggio@goodwinlaw.com

      ctompkins@goodwinlaw.com

To Mural:

Mural Oncology plc

c/o Mural Oncology, Inc.

852 Winter Street

Waltham, Massachusetts 02451

Attn: Maiken Keson-Brookes

Email:

 

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

Goodwin Procter LLP

100 Northern Avenue

Boston, Massachusetts 02210

Attn:    Blake Liggio

    Caitlin Tompkins

Email:    bliggio@goodwinlaw.com

    ctompkins@goodwinlaw.com

Section 14.7 Waivers. The delay or failure of either Party to exercise or enforce any of its rights under this Agreement will not constitute, or be deemed to be, a waiver of those rights, nor will any single or partial exercise of any such rights preclude any other or further exercise thereof or the exercise of any other right. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party against which it is being enforced.

Section 14.8 Assignment. No Party may assign any rights or delegate any obligations arising under this Agreement, in whole or in part, directly or indirectly, without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), and any attempt to so assign any rights or delegate any obligations arising under this Agreement without such consent shall be void. Notwithstanding the foregoing, no such consent shall be required for any such assignment or delegation (a) with respect to Alkermes, to a Subsidiary of Alkermes (so long as such Subsidiary remains a Subsidiary of Alkermes), (b) with respect to Mural, to a Subsidiary of Mural (so long as such Subsidiary remains a Subsidiary of Mural) or (c) to a bona fide Third Party in connection with a merger, reorganization, consolidation or the sale of all or substantially all the assets of a Party so long as the resulting, surviving or transferee entity assumes all the obligations of the assigning Party by operation of Law or pursuant to an agreement in form and substance reasonably satisfactory to the non-assigning Party; provided, however, that in the case of each of the preceding clauses (a) and (b), no assignment permitted by this Section 14.8 shall release the assigning Party from liability for the full performance of its obligations under this Agreement.

Section 14.9 Successors and Assigns. The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors (whether by merger, acquisition of assets, or otherwise, and including any successor of Alkermes or Mural succeeding to the Tax attributes of either under Section 381 of the Code) and permitted assigns.

Section 14.10 Termination and Amendment. This Agreement may be terminated, modified or amended at any time prior to the Distribution Effective Time by and in the sole and absolute discretion of Alkermes without the approval of Mural or the shareholders of Alkermes. In the event of such termination, no Party shall have any liability of any kind to the other Party or any other Person by reason of such termination. After the Distribution Effective Time, this Agreement may not be terminated, modified or amended except by an agreement in writing signed by Alkermes and Mural.

 

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Section 14.11 Payment Terms.

(a) Except as expressly provided to the contrary in this Agreement, any amount to be paid or reimbursed by a Party (and/or a member of such Party’s Group) to the other Party (and/or a member of such other Party’s Group) under this Agreement shall be paid or reimbursed hereunder within sixty (60) days after presentation of an invoice or a written demand therefor, in either case setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.

(b) Except as otherwise expressly provided to the contrary in this Agreement, any amount not paid when due pursuant to this Agreement (and any amount billed or otherwise invoiced or demanded and properly payable that is not paid within sixty (60) days of such bill, invoice or other demand) shall bear interest at a rate per annum equal to the Prime Rate, from time to time in effect, plus two percent (2%), calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment.

(c) Without the consent of the party receiving any payment under this Agreement specifying otherwise, all payments to be made under this Agreement shall be made in U.S. dollars. Except as expressly provided herein, any amount which is not expressed in U.S. dollars shall be converted into U.S. dollars by using the exchange rate published on Bloomberg at 5:00 p.m., Eastern time, on the day before the relevant date, or in The Wall Street Journal, Eastern Edition, on such date if not so published on Bloomberg. Except as expressly provided herein, in the event that any indemnification payment required to be made hereunder may be denominated in a currency other than U.S. dollars, the amount of such payment shall be converted into U.S. dollars on the date notice of the claim is given to the indemnifying Party.

Section 14.12 Subsidiaries. Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any entity that becomes a Subsidiary of such Party at or after the Distribution Effective Time, in each case to the extent such Subsidiary remains a Subsidiary of the applicable Party. If, at any time, Mural acquires or creates one or more Subsidiaries that are includable in the Mural Group, all references to the Mural Group herein shall thereafter include a reference to such Subsidiaries.

Section 14.13 Third Party Beneficiaries. Except as specifically provided herein, this Agreement is solely for the benefit of the Parties and shall not be deemed to confer upon any Person other than the Parties any remedy, claim, liability, reimbursement, cause of action or other right beyond any that exist without reference to this Agreement.

Section 14.14 Titles And Headings. Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

 

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Section 14.15 Governing Law. This Agreement will be governed by, construed and interpreted in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of Laws principles thereof that might lead to the application of Laws other than the Laws of the State of Delaware. Each Party irrevocably consents to the exclusive jurisdiction, forum and venue of the Delaware Court of Chancery (and if the Delaware Court of Chancery shall be unavailable, any Delaware State court or the federal court sitting in the State of Delaware) over any and all claims, disputes, controversies or disagreements between the Parties under or related to this Agreement or any of the transactions contemplated hereby, including their execution, performance or enforcement, whether in contract, tort or otherwise. Each of the Parties hereby agrees that it shall not assert, and shall hereby waive, any claim or right or defense that it is not subject to the jurisdiction of such courts, that the venue is improper, that the forum is inconvenient or any similar objection, claim or argument.

Section 14.16 Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

Section 14.17 Interpretation. Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms “Section,” “paragraph,” and “clause” are references to the Sections, paragraphs, and clauses, respectively, of this Agreement unless otherwise specified; (c) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (d) references to “$” shall mean U.S. dollars; (e) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (f) the word “or” shall not be exclusive; (g) references to “written” or “in writing” include in electronic form; (h) unless the context requires otherwise, references to “party” shall mean Alkermes or Mural, as appropriate, and references to “parties” shall mean Alkermes and Mural; (i) provisions shall apply, when appropriate, to successive events and transactions; (j) the table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (k) Alkermes and Mural have each participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or burdening either party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement; and (l) a reference to any Person includes such Person’s successors and permitted assigns.

Section 14.18 No Duplication; No Double Recovery. Nothing in this Agreement, the Separation Agreement or any Ancillary Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances.

Section 14.19 No Waiver. No failure to exercise and no delay in exercising, on the part of any Party, any right, remedy, power or privilege hereunder shall operate as a waiver hereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

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Section 14.20 Further Action. The Parties shall execute and deliver all documents, provide all information, and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement, including the execution and delivery to the other parties and their Affiliates and representatives of such powers of attorney or other authorizing documentation as is reasonably necessary or appropriate in connection with Tax Contests (or portions thereof) under the control of such other parties in accordance with Article IX.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, each Party has caused this Agreement to be executed on its behalf by a duly authorized officer on the date first set forth above.

 

ALKERMES PLC

By:   /s/ Richie Paul
 

Name: Richie Paul

 

Title: Board Designated Signatory

MURAL ONCOLOGY PLC

By:   /s/ Caroline Loew
 

Name: Caroline Loew, Ph.D.

 

Title: Director and Secretary

 

[Signature Page to Tax Matters Agreement]

EX-10.2

Exhibit 10.2

Execution Version

EMPLOYEE MATTERS AGREEMENT

by and between

ALKERMES PLC

and

MURAL ONCOLOGY PLC

Dated as of November 13, 2023

 


EMPLOYEE MATTERS AGREEMENT

TABLE OF CONTENTS

 

     Page  
ARTICLE I DEFINITIONS      1  
 

Section 1.1

  

General

     1  
ARTICLE II TRANSFER OF MURAL EMPLOYEES; GENERAL PRINCIPLES      5  
 

Section 2.1

  

Transfer of Employment to Mural of Additional Employees; Post-Effective Time Transfers; Independent Contractors

     5  

        

 

Section 2.2

  

Assumption and Retention of Liabilities

     6  
 

Section 2.3

  

Mural Participation in the Alkermes Plans

     7  
 

Section 2.4

  

Sponsorship of the Mural Plans

     7  
 

Section 2.5

  

No Duplication of Benefits; Service and Other Credit

     7  
 

Section 2.6

  

Reimbursements

     7  
 

Section 2.7

  

Approval of Plans

     7  
 

Section 2.8

  

Delivery of Shares; Registration Statement

     8  
 

Section 2.9

  

No Change in Control

     8  
 

Section 2.10

  

Labor Relations

     8  
ARTICLE III DEFINED CONTRIBUTION PLANS      8  
 

Section 3.1

  

401(k) Plan

     8  
ARTICLE IV HEALTH AND WELFARE PLANS; PAYROLL; COBRA AND VACATION      9  
 

Section 4.1

  

Cessation of Participation in Alkermes Health and Welfare Plans

     9  
 

Section 4.2

  

Allocation of Health and Welfare Plan Liabilities

     9  
 

Section 4.3

  

Flexible Spending Plan Treatment

     10  
 

Section 4.4

  

Workers’ Compensation Liabilities

     10  
 

Section 4.5

  

Payroll Taxes and Reporting

     11  
 

Section 4.6

  

COBRA and HIPAA Compliance

     11  
 

Section 4.7

  

Vacation and Paid Time Off

     11  
ARTICLE V INCENTIVE COMPENSATION, EQUITY COMPENSATION AND OTHER BENEFITS      12  
 

Section 5.1

  

Annual Cash-Based Incentive Plans

     12  
 

Section 5.2

  

Awards under the Alkermes Stock Plans

     12  
 

Section 5.3

  

Mural Blackout Period

     15  
 

Section 5.4

  

Alkermes Blackout Period

     16  
 

Section 5.5

  

Section 409A

     16  
 

Section 5.6

  

Mural Director Obligations

     16  
ARTICLE VI GENERAL AND ADMINISTRATIVE      16  
 

Section 6.1

  

Sharing of Participant Information

     16  
 

Section 6.2

  

Cooperation

     17  
 

Section 6.3

  

No Third Party Rights or Entitlements

     17  
 

Section 6.4

  

Audit Rights with Respect to Information Provided

     17  

 

i


 

Section 6.5

  

Fiduciary Matters

     17  
 

Section 6.6

  

Consent of Third Parties

     18  
 

Section 6.7

  

Assignment of “Claw-Back” or Recoupment Rights

     18  
 

Section 6.8

  

Proprietary Information and Inventions Agreements

     18  
ARTICLE VII DISPUTE RESOLUTION      18  
 

Section 7.1

  

Negotiation

     18  
 

Section 7.2

  

Arbitration

     19  
 

Section 7.3

  

Continuity of Service and Performance

     19  
 

Section 7.4

  

Injunctive or Other Equity Relief

     19  
ARTICLE VIII MISCELLANEOUS      19  
 

Section 8.1