CONTINGENT VALUE RIGHTS AGREEMENT by and among FRESENIUS KABI PHARMACEUTICALS HOLDING, INC. and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. and THE BANK OF NEW YORK MELLON Dated as of September 10, 2008
EXHIBIT
4.1
CONTINGENT VALUE RIGHTS AGREEMENT
by
and among
and
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
and
THE
BANK OF NEW YORK MELLON
Dated
as of September 10, 2008
TABLE
OF CONTENTS
ARTICLE
1
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||
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
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2
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|
Section
1.1
|
Definitions
|
2
|
Section
1.2
|
Compliance
and Opinions.
|
9
|
Section
1.3
|
Form
of Documents Delivered to Trustee.
|
10
|
Section
1.4
|
Acts
of Holders.
|
10
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Section
1.5
|
Notices,
etc., to Trustee and Company
|
11
|
Section
1.6
|
Notice
to Holders; Waiver.
|
12
|
Section
1.7
|
Conflict
with Trust Indenture Act
|
12
|
Section
1.8
|
Effect
of Headings and Table of Contents
|
12
|
Section
1.9
|
Successors
and Assigns
|
12
|
Section
1.10
|
Benefits
of Agreement
|
12
|
Section
1.11
|
Governing
Law
|
12
|
Section
1.12
|
Legal
Holidays
|
13
|
Section
1.13
|
Separability
Clause
|
13
|
Section
1.14
|
No
Recourse Against Others
|
13
|
Section
1.15
|
Counterparts
|
13
|
Section
1.16
|
Acceptance
of Trust
|
13
|
Section
1.17
|
Treasury
Securities
|
13
|
Section
1.18
|
Waiver
of Jury Trial
|
13
|
Section
1.19
|
Force
Majeure
|
13
|
ARTICLE
2
|
||
SECURITY
FORMS
|
14
|
|
Section
2.1
|
Forms
Generally.
|
14
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ARTICLE
3
|
||
THE
SECURITIES
|
14
|
|
Section
3.1
|
Title
and Terms.
|
14
|
Section
3.2
|
Registrable
Form
|
16
|
Section
3.3
|
Execution,
Authentication, Delivery and Dating.
|
16
|
Section
3.4
|
Temporary
Securities.
|
17
|
Section
3.5
|
Registration,
Registration of Transfer and Exchange.
|
17
|
i
Section
3.6
|
Mutilated,
Destroyed, Lost and Stolen Securities.
|
18
|
Section
3.7
|
Payments
with respect to CVR Certificates
|
19
|
Section
3.8
|
Persons
Deemed Owners
|
19
|
Section
3.9
|
Cancellation
|
19
|
Section
3.10
|
CUSIP
Numbers
|
19
|
ARTICLE
4
|
||
THE
TRUSTEE
|
20
|
|
Section
4.1
|
Certain
Duties and Responsibilities
|
20
|
Section
4.2
|
Certain
Rights of Trustee
|
20
|
Section
4.3
|
Notice
of Default
|
22
|
Section
4.4
|
Not
Responsible for Recitals or Issuance of Securities
|
22
|
Section
4.5
|
May
Hold Securities
|
22
|
Section
4.6
|
Money
Held in Trust
|
22
|
Section
4.7
|
Compensation
and Reimbursement
|
22
|
Section
4.8
|
Disqualification;
Conflicting Interests.
|
23
|
Section
4.9
|
Corporate
Trustee Required; Eligibility
|
23
|
Section
4.10
|
Resignation
and Removal; Appointment of Successor.
|
24
|
Section
4.11
|
Acceptance
of Appointment of Successor.
|
25
|
Section
4.12
|
Merger,
Conversion, Consolidation or Succession to Business
|
25
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Section
4.13
|
Preferential
Collection of Claims Against Company
|
26
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ARTICLE
5
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HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
26
|
|
Section
5.1
|
Company
to Furnish Trustee Names and Addresses of Holders
|
26
|
Section
5.2
|
Preservation
of Information; Communications to Holders.
|
26
|
Section
5.3
|
Reports
by Trustee.
|
26
|
Section
5.4
|
Reports
by Company
|
27
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ARTICLE
6
|
||
AMENDMENTS
|
28
|
|
Section
6.1
|
Amendments
Without Consent of Holders
|
28
|
Section
6.2
|
Amendments
with Consent of Holders
|
28
|
Section
6.3
|
Execution
of Amendments
|
29
|
Section
6.4
|
Effect
of Amendments; Notice to Holders.
|
29
|
ii
Section
6.5
|
Conformity
with Trust Indenture Act
|
29
|
Section
6.6
|
Reference
in Securities to Amendments
|
30
|
ARTICLE
7
|
||
COVENANTS
|
30
|
|
Section
7.1
|
Payment
of Amounts, if any, to Holders
|
30
|
Section
7.2
|
Maintenance
of Office or Agency.
|
30
|
Section
7.3
|
Money
for Security Payments to Be Held in Trust.
|
31
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Section
7.4
|
Certain
Purchases and Sales
|
31
|
Section
7.5
|
Books
and Records
|
31
|
Section
7.6
|
Audits.
|
31
|
Section
7.7
|
Listing
of CVRs
|
31
|
Section
7.8
|
Restrictive
Covenants
|
33
|
Section
7.9
|
Fresenius
Group Transactions
|
33
|
Section
7.10
|
Enforcement
of Parent Equity Commitment
|
33
|
Section
7.11
|
Arm’s
Length Transactions
|
34
|
Section
7.12
|
Notice
of Default
|
34
|
ARTICLE
8
|
||
REMEDIES
OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
|
34
|
|
Section
8.1
|
Event
of Default Defined; Waiver of Default
|
34
|
Section
8.2
|
Collection
of Indebtedness by Trustee; Trustee May Prove Debt
|
35
|
Section
8.3
|
Application
of Proceeds
|
37
|
Section
8.4
|
Suits
for Enforcement
|
37
|
Section
8.5
|
Restoration
of Rights on Abandonment of Proceedings
|
38
|
Section
8.6
|
Limitations
on Suits by Holders
|
38
|
Section
8.7
|
Unconditional
Right of Holders to Institute Certain Suits
|
38
|
Section
8.8
|
Powers
and Remedies Cumulative; Delay or Omission Not Waiver of
Default.
|
38
|
Section
8.9
|
Control
by Holders.
|
39
|
Section
8.10
|
Waiver
of Past Defaults.
|
39
|
Section
8.11
|
Trustee
to Give Notice of Default, But May Withhold in Certain
Circumstances
|
40
|
Section
8.12
|
Right
of Court to Require Filing of Undertaking to Pay Costs
|
40
|
ARTICLE
9
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||
CONSOLIDATION,
MERGER, SALE OR CONVEYANCE
|
40
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|
iii
Section
9.1
|
Company
May Consolidate, etc., on Certain Terms
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40
|
Section
9.2
|
Successor
Person Substituted.
|
41
|
Section
9.3
|
Opinion
of Counsel to Trustee
|
41
|
Section
9.4
|
Successors
|
41
|
ARTICLE
10
|
||
SUBORDINATION
|
41
|
|
Section
10.1
|
Agreement
to Subordinate
|
41
|
Section
10.2
|
Liquidation;
Dissolution; Bankruptcy
|
42
|
Section
10.3
|
Default
on Senior Obligations
|
42
|
Section
10.4
|
Notice
of Event of Default
|
43
|
Section
10.5
|
When
Distribution Must Be Paid Over.
|
43
|
Section
10.6
|
Notice
by Company
|
43
|
Section
10.7
|
Subordination
Effective Notwithstanding Deficiencies with Respect to Senior Obligations;
Waiver of Right to Contest Senior Obligation; Reinstatement of
Subordination Provisions.
|
43
|
Section
10.8
|
Subrogation
|
44
|
Section
10.9
|
Relative
Rights
|
44
|
Section
10.10
|
Subordination
May Not Be Impaired by Company
|
45
|
Section
10.11
|
Distribution
or Notice to Representative
|
45
|
Section
10.12
|
Rights
of Trustee
|
45
|
Section
10.13
|
Authorization
to Effect Subordination
|
45
|
Section
10.14
|
Amendments
|
45
|
Section
10.15
|
Change
of Control.
|
46
|
Section
10.16
|
Reliance
on Judicial Order or Certificate of Liquidating Agent
|
46
|
Section
10.17
|
Trustee
Not Fiduciary for Holders of Senior Indebtedness
|
47
|
Annex
A -
|
Form
of CVR Certificate.
|
Note:
|
This
table of contents shall not, for any purpose, be deemed to be a part of
this CVR Agreement.
|
iv
Reconciliation
and tie between Trust Indenture Act of 1939 and Contingent Value Rights
Agreement, dated as of September 10, 2008.
Trust Indenture Act
Section
|
Agreement
Section
|
|
Section
310
|
(a)(1)
|
4.9
|
(a)(2)
|
4.9
|
|
(a)(3)
|
Not
Applicable
|
|
(a)(4)
|
Not
Applicable
|
|
(a)(5)
|
4.9
|
|
(b)
|
4.8,
4.10
|
|
Section
311
|
(a)
|
4.13(a)
|
(b)
|
4.13(a)
|
|
Section
312
|
(a)
|
5.1,
5.2(a)
|
(b)
|
5.2(b)
|
|
(c)
|
5.2(c)
|
|
Section
313
|
(a)
|
5.3(a)
|
(b)
|
5.3(a)
|
|
(c)
|
5.3(a)
|
|
(d)
|
5.3(b)
|
|
Section
314
|
(a)
|
5.4
|
(b)
|
Not
Applicable
|
|
(c)(1)
|
1.2(a)
|
|
(c)(2)
|
1.2(a)
|
|
(c)(3)
|
Not
Applicable
|
|
(d)
|
Not
Applicable
|
|
(e)
|
1.2(b)
|
|
Section
315
|
(a)
|
4.1(a),
4.1(b)
|
(b)
|
8.11
|
|
(c)
|
4.1(a)
|
|
(d)
|
4.1(c)
|
|
(d)(1)
|
4.1(a),
4.1(b)
|
|
(d)(2)
|
4.1(c)(ii)
|
|
(d)(3)
|
4.1(c)(iii)
|
|
(e)
|
8.12
|
|
Section
316
|
(a)(last
sentence)
|
1.17
|
(a)(1)(A)
|
8.9
|
|
(a)(1)(B)
|
8.10
|
|
(a)(2)
|
Not
Applicable
|
|
(b)
|
8.7
|
v
Section
317
|
(a)(1)
|
8.2
|
(a)(2)
|
8.2
|
|
(b)
|
7.3
|
|
Section
318
|
(a)
|
1.7
|
Note:
|
This
reconciliation and tie shall not, for any purpose, be deemed to be a part
of the CVR Agreement.
|
vi
THIS
CONTINGENT VALUE RIGHTS AGREEMENT, dated as of September 10, 2008 (the “CVR Agreement”), by
and among Fresenius Kabi Pharmaceuticals Holding, Inc., a Delaware corporation
(the “Company”), The Bank
of New York Mellon Trust Company, N.A., a national banking association, as
trustee (the “Trustee”), and The
Bank of New York Mellon, as paying agent and security registrar, in favor of
each person who from time to time holds one or more Contingent Value Rights (the
“Securities” or
“CVRs”) to
receive cash payments in the amounts and subject to the terms and conditions set
forth herein.
1
ARTICLE
1
Section
1.1 Definitions. For
all purposes of this CVR Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(b) all
accounting terms used herein and not expressly defined herein shall, except as
otherwise noted, have the meanings assigned to such terms in accordance with
generally accepted accounting principles in the United States, and the term
“generally accepted
accounting principles” or “GAAP” means such
accounting principles as are generally accepted as they may change from time to
time in the United States;
(c) all
capitalized terms used in this CVR Agreement without definition shall have the
respective meanings ascribed to them in the Merger Agreement.
(d) all
other terms used herein which are defined in the Trust Indenture Act (as defined
herein), either directly or by reference therein, have the respective meanings
assigned to them therein; and
(e) the
words “herein,”
“hereof” and
“hereunder” and
other words of similar import refer to this CVR Agreement as a whole and not to
any particular Article, Section or other subdivision.
“Adjusted EBITDA”
means, for any period, the Consolidated Net Income for such period, plus:
(a) without
duplication and to the extent already deducted (and not added back) in arriving
at such Consolidated Net Income, the sum of the following amounts for such
period:
(i) total
interest expense, including any imputed interest expense relating to the CVRs ,
and, to the extent not reflected in such total interest expense, any losses on
hedging obligations or other derivative instruments entered into for the purpose
of hedging interest rate risk, net of interest income and gains on such hedging
obligations, and costs of surety bonds in connection with financing activities,
letter of credit fees and commitment fees,
(ii) provision
for taxes based on income, profits or capital, including state, franchise,
withholding and similar taxes paid or accrued during such period,
(iii) depreciation
and amortization (including amortization of capitalized software expenditures
and amortization of deferred financing fees),
(iv) Non-Cash
Charges,
(v) (x)
any extraordinary, unusual or non-recurring expenses or losses related to the
Company’s acquisition of APP, including restructuring costs, integration
costs, expenses
2
arising
as a result of the transactions contemplated by the Merger Agreement, including
the issuance, maintenance and settlement of the CVRs, transaction fees and
expenses and (y) expenses (not to exceed $1 million in the aggregate) arising
out of the Spin-Off and the related transactions,
(vi) any
costs or expenses (excluding Non-Cash Charges) incurred pursuant to any
management equity plan or stock option plan or any other management or employee
equity benefit plans or agreements or any stock subscription or shareholder
agreement,
(vii) losses
on sales of fixed assets (other than ordinary course asset sales),
(viii)
any non-cash increase in expenses (a) resulting from the revaluation
of inventory (including any impact of changes to inventory valuation policy
methods including changes in capitalization of variances) and any other one time
Non-Cash Charges resulting due to any change in accounting policy, or
(b) due to purchase accounting associated with the transactions
contemplated by the Merger Agreement, including the issuance of the
CVRs,
(ix) expenses
with respect to liability or casualty events or business interruption only to
the extent of any reasonably anticipated insurance recovery, and only to the
extent that such recovery has not already been booked in Consolidated Net
Income,
(x) any
expenses or losses related to the research, development, manufacturing,
marketing, selling and distribution of products, molecules or delivery forms of
molecules not included in Company Products, including all direct and indirect
costs calculated with the average indirect cost ratio for the Company and its
Subsidiaries,
(xi) research
and development expenses relating to the build-out of facilities and costs
incurred to transfer production to or start-up any facilities, including costs
incurred to ready such facilities for use and costs, such as unfavorable
manufacturing variances, incurred prior to achieving planned production levels,
and costs incurred to modernize marketed products as incurred, but in any event
not to exceed $35.9 million during the CVR Measurement Period,
(xii) any
expenses or losses related to the registration, manufacturing, marketing,
selling and distribution of products outside North America (other than with
respect to Company Products sold or distributed outside of North America as of
the date of the Merger Agreement), including all direct and indirect costs
calculated with the average indirect cost ratio for the Company and its
Subsidiaries,
(xiii) any
deductions attributable to minority interests, and
(xiv) any
expenses or losses arising out of the Consulting Agreement, dated the date of
the Merger Agreement, among the Company, Xx. Xxxxxxx Soon-Shiong and
Parent,
less
(b) without
duplication and to the extent included in arriving at such Consolidated Net
Income, the sum of the following amounts for such period:
3
(i) extraordinary
and unusual or non-recurring cash gains,
(ii) non-cash
gains (excluding any non-cash gain to the extent it represents the reversal of
an accrual or reserve for a potential cash item that reduced Consolidated Net
Income in any prior period),
(iii) gains
on sales of fixed assets (other than ordinary course asset sales),
(iv) any
net after-tax income from the early extinguishment of indebtedness or hedging
obligations or other derivative instruments,
(v) all
one-time gains from investments recorded using the equity method,
(vi) all
incremental net revenue from the sale of molecules and delivery forms of
molecules not included in Company Products, and
(vii) all
incremental net revenue from the sale of products outside of North America
(other than with respect to Company Products sold or distributed outside of
North America as of the date of the Merger Agreement),
in
each case, as determined on a consolidated basis for the Company and its
Subsidiaries (or with respect to the period prior to the date hereof, determined
on a consolidated basis for APP and its Subsidiaries) in accordance with
GAAP.
“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Aggregate Share
Number” means, without duplication, (a) the number shares Common Stock
(other than Excluded Company Shares) outstanding immediately prior to the
Effective Time, plus (b) the number of shares of Common Stock underlying each
Option having an exercise price that is less than or equal to the Cash
Consideration, plus (c) the number of RSUs outstanding immediately prior to the
Effective Time of the Merger.
“Board of Directors”
means the board of directors of the Company or any other body performing similar
functions, or any duly authorized committee of that board.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company, to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
“Business Day” means
any day (other than a Saturday or a Sunday) on which banking institutions in The
City of New York, New York are not authorized or obligated by law
4
or
executive order to close and, if the CVRs are listed on a national securities
exchange, electronic trading network or other suitable trading platform, such
exchange, electronic network or other trading platform is open for
trading.
"Change of Control"
means (i) the consummation of any transaction, including without limitation, any
merger or consolidation pursuant to which any of the voting stock of a Person is
converted into or exchanged for cash, securities or other property, other than
any transaction where the voting stock of such Person outstanding immediately
prior to such transaction is converted into or exchanged for voting stock of a
transferee entity constituting more than 50% of such voting stock or such
surviving or transferee entity (immediately after giving effect to such
issuance); or (2) a sale of all or substantially all of a Person's
assets.
“Commission” means the
Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act (as defined herein), or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
“Company” means the
Person (as defined herein) named as the “Company” in the first paragraph of this
CVR Agreement, until a successor Person shall have become such pursuant to the
applicable provisions of this CVR Agreement, and thereafter “Company” shall mean
such successor Person. To the extent necessary to comply with the
requirements of the provisions of Trust Indenture Act Sections 310 through 317,
inclusive, as they are applicable to the Company, the term “Company” shall
include any other obligor with respect to the Securities for the purposes of
complying with such provisions.
“Company Products”
means products sold, in development or planned for development by APP and its
Subsidiaries as of the date of the Merger Agreement.
“Company Request” or
“Company Order”
means a written request or order signed in the name of the Company by the
chairman of the Board of Directors or the president or any vice president, the
controller or assistant controller and the treasurer or assistant treasurer or
the secretary or any assistant secretary, and delivered to the
Trustee.
“Consolidated Net
Income” means, for any period, consolidated net income (loss) of the
Company and its Subsidiaries for such period, and with respect to any period
prior to the date hereof, the consolidated net income (loss) of APP and its
Subsidiaries, in each case determined in accordance with GAAP.
“Corporate Trust
Office” means a principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof
is located at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000, Attention:
Corporate Trust Administration, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as such successor Trustee may designate from time to time by notice to the
Holders and the Company).
“CVR Agreement” means
this instrument as originally executed and as it may from time to time be
supplemented or amended pursuant to the applicable provisions
hereof.
5
“CVR Certificate”
means a certificate representing any of the CVRs.
“CVR Measuring Period”
means the three-year period covering the calendar years 2008, 2009 and
2010.
“CVR Payment” means,
with respect to each CVR, an amount equal to the lesser of: (a) the
quotient obtained by dividing (i) the product of (x) 2.5 and (y)(A) the
aggregate of the Adjusted EBITDA over the CVR Measuring Period plus (B) the aggregate amount
of all Sale Adjustments minus
(C) the
EBITDA Threshold Amount, by (ii) the Aggregate Share Number, or (b) the Maximum
CVR Payment.
“CVR Statement” means
the written statement of the Company, certified by the Chief Financial Officer
of the Company and setting forth with reasonable detail the calculation of
Adjusted EBITDA for the CVR Measurement Period (including an itemization of each
adjustment made to the net income (loss) of the Company and its Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP to derive
Consolidated Net Income and each adjustment made to Consolidated Net Income to
derive Adjusted EBITDA) and the CVR Payment in accordance with this
Agreement. The CVR Statement shall include audited financial
statements of the Company for each calendar year comprising the CVR Measuring
Period.
“Default Interest
Rate” means the 180-day London Interbank Offering Rate, as published in
The Wall Street Journal, as such rate may change from time to time, plus 500
basis points.
“EBITDA Threshold
Amount” means $1,267,700,000.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Fresenius Group”
means Parent and its Subsidiaries.
“Holder” means a
Person in whose name a Security is registered in the Security
Register.
“Intercompany Loans”
means the promissory notes or other indebtedness, liabilities or obligations
(including guarantees thereof) owed by Parent, the Company or any of their
respective Subsidiaries to any borrower of Senior Obligations outstanding
pursuant to clause (i) of the definition thereof, in each case together with the
related documents thereto (including any guarantees and security documents), as
amended, extended, renewed, restated, supplemented or otherwise modified (in
whole or in part, and without limitation as to amount, terms, conditions,
covenants and other provisions) from time to time; provided, that the aggregate
principal amount of any such Intercompany Loans shall not exceed the principal
amount of the loans made to such borrower under the Senior Credit
Facilities.
“Junior Obligations”
has the meaning set forth on Section 10.01.
“Maximum CVR Payment”
means, with respect to each CVR, $6.00.
6
“Non-Cash Charges”
means (a) non-cash losses on asset sales, disposals or abandonments,
(b) any non-cash impairment charge or asset write-off related to intangible
assets, long-lived assets, and investments in debt and equity securities,
(c) all non-cash losses from investments recorded using the equity method,
(d) non-cash stock-based awards compensation expense, and (e) non-cash
expenses relating to the vesting of warrants.
“Officer’s
Certificate” when used with respect to the Company means a certificate
signed by the chairman of the Board of Directors or the president or any vice
president, the controller or assistant controller and the treasurer or assistant
treasurer or the secretary or any assistant secretary of the Company delivered
to the Trustee or any other person authorized to act on behalf of the
Company.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for the
Company.
“Other Senior Debt”
means any existing or future obligations of Parent or its Subsidiaries (i) with
respect to money borrowed, (ii) evidenced by notes, debentures, bonds or other
similar instruments, (iii) under interest rate swaps or similar agreements or
currency exchange transactions, (iv) reimbursement obligations in respect of
letters of credit and similar obligations, (v) with respect to the deferred
purchase price of property or services (other than trade debt incurred in the
ordinary course of business) and conditional sale agreements, (vi) in respect of
capital leases or (vii) in respect of guaranties and liens to support the
payment of any obligations of any Person of the types described in (i), (ii),
(iii), (iv), (v) and (vi); unless, in any case, the instrument creating or
evidencing the same provides that such obligations are pari passu to or
subordinate in right of payment to the Securities.
“Outstanding” when
used with respect to Securities means, as of the date of determination, all
Securities theretofore authenticated and delivered under this CVR Agreement,
except: (a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation and (b) Securities in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to this CVR
Agreement, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands the Securities are valid
obligations of the Company; provided, however, that in determining whether the
Holders of the requisite Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder, Securities owned by the Company or any
Affiliate of the Company, whether held as treasury securities or otherwise,
shall be disregarded and deemed not to be Outstanding.
“Parent Equity
Commitment” means the Equity Commitment Letter, dated the date of the
Merger Agreement, executed and delivered by Parent in favor of the Company in
connection with the Company’s obligations under this CVR Agreement.
“Paying Agent” means
any Person authorized by the Company to pay the amount determined pursuant to
Section 3.1, if any, on any Securities on behalf of the Company.
“Payment Date” means
June 30, 2011, and such date as shall be required for any CVR Shortfall payment
pursuant to the review procedure set forth in Section 7.6.
7
“Person” means any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, limited liability company, unincorporated organization or
government or any agency or political subdivision thereof.
“Representative” means
Deutsche Bank AG, London Branch as representative of the lenders under the
Senior Credit Facility and New Finco1, New Xxxxx 2 and Luxco in relation to each
of their respective loans, and the administrative agent, indenture trustee or
other trustee, agent or representative for any holders of Senior
Obligations.
“Responsible Officer”
when used with respect to the Trustee means any officer assigned to the
Corporate Trust Office and also means, with respect to any particular corporate
trust matter, any other officer of the Trustee to whom such matter is referred
because of his knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this CVR
Agreement.
“Sale Transaction”
means any sale, divestiture or disposition of material assets of APP, the
Company or any of their Subsidiaries, including (i) sales,
divestitures and dispositions made by APP or its Subsidiaries in connection with
the consummation of the Merger and (ii) sales, divestitures and dispositions
that comply with Section 7.11, and excluding any sale, divestiture or
disposition of material assets to which Section 7.9 would apply.
“Sale Adjustment”
shall mean, with respect to any Sale Transaction, an amount equal the product of
(i) the total remaining days in the CVR Measuring Period on the day the subject
Sale Transaction closes and (ii) the quotient obtained by first dividing (A) the
total proceeds from the Sale Transaction by (B) 15.0, and then dividing the
resulting quotient by (C) 365 days.
Example:
Sale Transaction on March 31, 2009 for $500.0 million
Sale
Adjustment = 640 x (($500.0 million / 15) / 365) = $58.45 million.
“Senior Credit
Facilities” means the Credit Agreement dated as of August 20, 2008, among
Fresenius SE, the borrowers and other guarantors identified therein, Deutsche
Bank AG, London Branch, as Administrative Agent, and the lenders party thereto
and the Bridge Credit Agreement, dated as of August 20, 2008, among Fresenius
SE, the borrowers and other guarantors identified therein, Deutsche Bank AG,
London Branch, as Administrative Agent, and the lenders party thereto, in each
case together with the related documents thereto (including the term loans and
revolving loans thereunder, any guarantees and security documents), as amended,
extended, renewed, restated, supplemented or otherwise modified (in whole or in
part, and without limitation as to amount, terms, conditions, covenants and
other provisions) from time to time, and any agreement (and related document)
governing indebtedness incurred to refinance, in whole or in part, the
borrowings and commitments then outstanding or permitted to be outstanding under
such agreement or a successor agreement, whether (x) by the same or any other
lender or group of lenders (including by means of sales of debt securities)
and/or (y) by the same or any different borrower or group of
borrowers.
“Senior Obligations”
means all principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under, or with respect
to
8
(i)
the Senior Credit Facilities and (ii) so long as Senior Obligations are
outstanding pursuant to the preceding clause (i), the Intercompany Loans and
(iii) Other Senior Debt.
“Specified Senior
Indebtedness” means the Senior Credit Facilities and, if the Senior
Credit Facilities have been repaid in full, any Other Senior Debt (other than
Intercompany Loans) the outstanding principal amount of which is more than €25
million.
“Shortfall Interest
Rate” means the 90-day London Interbank Offering Rate, as published in
The Wall Street Journal, as such rate may change from time to time, plus 200
basis points.
“Subsidiary” means,
with respect to any Person, any corporation, limited liability company,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Voting Securities is at the time owned or
controlled, directly or indirectly, by: (i) such Person; (ii) such Person and
one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of
such Person, provided, however, that Subsidiaries of Parent shall not include
Fresenius Medical Care AG & Co. KGaA and its Subsidiaries unless otherwise
specified.
“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended from time to
time.
“Trustee” means the
Person named as the “Trustee” in the first paragraph of this CVR Agreement,
until a successor Trustee shall have become such pursuant to the applicable
provisions of this CVR Agreement, and thereafter “Trustee” shall mean such
successor Trustee.
“Vice President” when
used with respect to the Company or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or after
the title of “vice president.”
“Voting Securities”
means securities having ordinary voting power to elect a majority of the
directors irrespective of whether or not stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency.
Section
1.2 Compliance and
Opinions.
(a) Upon
any application or request by the Company to the Trustee to take any action
under any provision of this CVR Agreement, the Company shall furnish to the
Trustee an Officers’ Certificate stating that, in the opinion of the xxxxxx, all
conditions precedent, if any, provided for in this CVR Agreement relating to the
proposed action have been complied with and an Opinion of Counsel stating,
subject to customary exceptions, that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this CVR Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
(b)
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this CVR Agreement shall include: (i) a statement that
each individual
9
signing
such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto; (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a statement that, in
the opinion of each such individual, he or she has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and (iv) a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section
1.3 Form of Documents Delivered
to Trustee.
(a) In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b) Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company.
(c) Any
certificate, statement or opinion of an officer of the Company or of counsel may
be based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of accountants in the
employ of the Company. Any certificate or opinion of any independent
firm of public accountants filed with the Trustee shall contain a statement that
such firm is independent.
(d) Where
any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this CVR Agreement, they may, but need not, be consolidated and form one
instrument.
Section
1.4 Acts of
Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this CVR Agreement to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this CVR Agreement and (subject to Section 4.1) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this
Section. The Company may
10
set
a record date for purposes of determining the identity of Holders entitled to
vote or consent to any action by vote or consent authorized or permitted under
this CVR Agreement. If not set by the Company prior to the first
solicitation of a Holder of Securities made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for such action shall be the later of ten days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 5.1 of this CVR Agreement prior to such
solicitation. If a record date is fixed, those Persons who were
Holders of Securities at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to take such action by vote or consent
or, except with respect to clause (d) below, to revoke any vote or consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such vote or consent shall be valid or effective for
more than 120 days after such record date.
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved in any reasonable manner which the Trustee deems
sufficient.
(c) The
ownership of Securities shall be proved by the Security
Register. Neither the Company nor the Trustee nor any Agent of the
Company or the Trustee shall be affected by any notice to the
contrary.
(d) At
any time prior to (but not after) the evidencing to the Trustee, as provided in
this Section 1.4, of the taking of any action by the Holders of the Securities
specified in this CVR Agreement in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Section 1.4, revoke such action so far
as concerns such Security. Any request, demand, authorization,
direction, notice, consent, waiver or other action by the Holder of any Security
shall bind every future Holder of the same Security or the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, suffered or omitted to
be done by the Trustee, any Paying Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
Section
1.5 Notices, etc., to Trustee
and Company. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document provided or
permitted by this CVR Agreement to be made upon, given or furnished to, or filed
with:
(a) the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed, in writing, to or with the Trustee
at its Corporate Trust Office; or
(b) the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at Else-Xxxxxxx-Xxxxxxx 0, 00000 Xxx Xxxxxxx x.x.H., Germany,
Attention: Investor Relations, or at any other address previously furnished in
writing to the Trustee by the Company; or
11
(c) the
Paying Agent and Security Registrar by the Company, Trustee or any Holder shall
be sufficient for every purpose hereunder if in writing and mailed, first-class
postage prepaid, to The Bank of New York Mellon, 480 Xxxxxxxxxx Xxxxxxxxx,
Xxxxxx Xxxx, XX 00000, Xxtention: Xxxxxx Xxxxx, Relationship
Manager.
Section
1.6 Notice to Holders;
Waiver.
(a) Where
this CVR Agreement provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this CVR Agreement provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
(b) In
case by reason of the suspension of regular mail service or by reason of any
other cause, it shall be impracticable to mail notice of any event as required
by any provision of this CVR Agreement, then any method of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice.
Section
1.7 Conflict with Trust
Indenture Act. If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in this
CVR Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control.
Section
1.8 Effect of Headings and Table
of Contents. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
Section
1.9 Successors and
Assigns. All covenants and agreements in this CVR Agreement by
the Company shall bind its successors and assigns, whether so expressed or
not.
Section
1.10 Benefits of
Agreement. Nothing in this CVR Agreement or in the Securities,
express or implied, shall give to any Person (other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders) any benefit or any
legal or equitable right, remedy or claim under this CVR Agreement or under any
covenant or provision herein contained, all such covenants and provisions being
for sole benefit of the parties hereto and their successors, any Paying Agent
and of the Holders.
Section
1.11 Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE
12
NEW
YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B),
EACH OF THE COMPANY, THE TRUSTEE AND EACH OF THE HOLDERS BY THEIR ACCEPTANCE OF
THE SECURITIES, HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
CVR AGREEMENT AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY AND THE TRUSTEE EACH IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION IT
MAY NOW OR HEREAFTER HAVE TO SUCH SERVICE OF PROCESS, THE LAYING OF
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section
1.12 Legal
Holidays. In the event that the Payment Date shall not be a
Business Day, then (notwithstanding any provision of this CVR Agreement or the
Securities to the contrary) payment on the Securities need not be made on such
date, but may be made, without the accrual of any interest thereon, on the next
succeeding Business Day with the same force and effect as if made on the Payment
Date.
Section
1.13 Separability
Clause. In case any provision in this CVR Agreement or in the
CVRs shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section
1.14 No Recourse Against
Others. A director, officer or employee, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company or the Trustee under the Securities or the CVR Agreement or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security each Holder waives and releases all
such liability. The waiver and release are part of the consideration
for the issue of the Securities.
Section
1.15 Counterparts. This
CVR Agreement shall be signed in any number of counterparts with the same effect
as if the signatures to each counterpart were upon a single instrument, and all
such counterparts together shall be deemed an original of this CVR
Agreement.
Section
1.16 Acceptance of
Trust. The Bank of New York Mellon Trust Company, N.A., the
Trustee named herein, hereby accepts the trusts in this CVR Agreement declared
and provided, upon the terms and conditions set forth herein.
Section
1.17 Treasury
Securities. In determining whether the Holders of the required
number of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or its Affiliates shall be considered as though
they are not outstanding,
13
except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities that a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
Section
1.18 Waiver of Jury
Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section
1.19 Force
Majeure. In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
ARTICLE
2
Section
2.1 Forms
Generally.
(a) The
Securities and the Trustee’s certificate of authentication shall be in
substantially the forms set forth in Annex A, attached hereto and incorporated
herein by this reference, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this CVR
Agreement and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may be required by law or any
rule or regulation pursuant thereto, all as may be determined by the officers
executing such Securities, as evidenced by their execution of the
Securities. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
(b) The
definitive Securities shall be typewritten, printed, lithographed or engraved on
steel engraved borders or produced by any combination of these methods or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such
Securities.
ARTICLE
3
Section
3.1 Title and
Terms.
(a) The
aggregate number of CVR Certificates which may be authenticated and delivered
under this CVR Agreement is limited to a number equal to 163,251,906, except
for
14
Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 3.4, 3.5, 3.6 or
6.6.
(b) The
Securities shall be known and designated as the “Contingent Value Rights” of the
Company.
(c) On
the Payment Date, the Company shall pay to the Paying Agent by wire transfer to
the account designated by the Trustee the CVR Payment (determined in accordance
with the procedures set forth below) for all of the Outstanding Securities, and
the Trustee shall pay the Holders of such Securities the CVR Payment required
hereunder. The Company shall take all actions reasonably necessary to enforce
the Parent Equity Commitment if and to the extent necessary for the Company to
able to pay the CVR Payment for all of the Outstanding Securities.
(1) Prior
to the earlier of (i) fifteen (15) days following the filing of the Company’s
annual report on Form 10-K for the year ended December 31, 2010, or (ii) one
hundred five (105) days following the end of the CVR Measuring Period, the
Company shall deliver to the Trustee and each of the Holders the CVR Statement
and an Officers’ Certificate certifying the Adjusted EBITDA for the CVR
Measuring Period and the calculation of the CVR Payment set forth in the CVR
Statement.
(2) In
the event that Holders representing at least a majority of the Outstanding CVRs
(the “Majority Holders”) elects to challenge the accuracy of the CVR Statement,
including the calculations or amount of the CVR Payment, the Majority Holders
may initiate the review procedure set forth in Section 7.6, provided that the
Majority Holders do so within sixty (60) days of receipt of the CVR Statement
from the Company.
(3) The
initiation of a review by the Majority Holders as contemplated by this Section
3.1(c) shall not relieve the Company of its obligation to pay the CVR Payment
(in the amount set forth in the CVR Statement delivered by the Company) on the
Payment Date, it being understood that the Holders of Securities upon which such
payment is made shall be entitled to receive the amount of the CVR Shortfall, if
any, determined in accordance with Section 7.6.
(d) The
aggregate amount payable with respect to any CVR shall not exceed the Maximum
CVR Payment.
(e) The
Holders of the CVR Certificates, by acceptance thereof, agree that the Company
has no obligation to initiate or continue research, development or
commercialization activities with respect to any products and, in its sole and
subjective discretion, the Company may abandon efforts to research, develop or
commercialize any product, whether or not such product is in development or
commercialized as of the closing date of the Merger. No joint
venture, partnership or other fiduciary relationship is created hereby or by the
Securities.
(f) Notwithstanding
any provision of this CVR Agreement or the CVR Certificates to the contrary,
other than in the case of interest on amounts due and payable after
15
the
occurrence of an Event of Default or with respect to any CVR Shortfall, no
interest shall accrue on any amounts payable with respect to the
CVRs.
(g) Except
to the extent any portion of the CVR Payment is required to be treated as
imputed interest pursuant to applicable law, the parties hereto agree to treat
the CVR Payment for all purposes as additional consideration for the shares of
Common Stock, the Options and the RSUs pursuant to the Merger
Agreement. The Company shall report imputed interest on the CVRs
pursuant to Section 483 of the Code.
(h) The
CVRs and any interest thereon may be sold, assigned, pledged encumbered or in
any manner transferred or disposed of, in whole or in part, only in accordance
with Section 3.5 hereof and in compliance with applicable United States federal
and state securities laws.
(i) The
Holder of any CVR or CVR Certificate is not, and shall not, by virtue thereof,
be entitled to any rights of a holder of limited liability company interests or
other equity or voting security of the Company, either at law or in equity, and
the rights of the Holders are limited to those expressed in this CVR
Agreement.
(j) None
of the Company, its Subsidiaries or any of their respective Affiliates shall
have any right to set-off any amounts owed or claimed to be owed by any Holder
to any of them against such Holder’s Securities or any CVR Payment or other
amount payable to such Holder in respect of such Securities.
(k) In
the event that all of the CVR Certificates not previously cancelled shall have
become due and payable pursuant to the terms hereof, all disputes with respect
to amounts payable to the Holders brought pursuant to the terms and conditions
of this CVR Agreement have been resolved, and the Company has paid or caused to
be paid or deposited with the Trustee all amounts payable to the Holders under
this CVR Agreement (including any amounts determined in accordance with Section
7.6 herein), then this CVR Agreement shall cease to be of further effect and
shall be deemed satisfied and discharged. Notwithstanding the
satisfaction and discharge of this CVR Agreement, the obligations of the Company
under Section 4.7(c) shall survive.
Section
3.2 Registrable
Form. The Securities shall be issuable only in registered
form.
Section
3.3 Execution, Authentication,
Delivery and Dating.
(a) The
Securities shall be executed on behalf of the Company by its chairman of the
Board of Directors or its president or any vice president or its treasurer, but
need not be attested. The signature of any of these officers on the
Securities may be manual or facsimile.
(b) Securities
bearing the manual or facsimile signatures of individuals who were, at the time
of execution, the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
16
(c) At
any time and from time to time after the execution and delivery of this CVR
Agreement, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities; and the Trustee, in accordance with such
Company Order, shall authenticate and deliver such Securities as provided in
this CVR Agreement and not otherwise.
(d) Each
Security shall be dated the date of its authentication.
(e) No
Security shall be entitled to any benefit under this CVR Agreement or be valid
or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee, by manual or facsimile signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this CVR
Agreement.
Section
3.4 Temporary
Securities.
(a) Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine with the concurrence of the Trustee. Temporary Securities
may contain such reference to any provisions of this CVR Agreement as may be
appropriate. Every temporary Security shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities.
(b) If
temporary Securities are issued, the Company will cause definitive Securities to
be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 7.2,
without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like amount of definitive
Securities. Until so exchanged, the Temporary Securities shall in all
respects be entitled to the same benefits under this CVR Agreement as definitive
Securities.
Section
3.5 Registration, Registration
of Transfer and Exchange.
(a) The
Company shall cause to be kept at the office of the Trustee a register (the
register maintained in such office and in any other office or agency designated
pursuant to Section 7.2 being herein sometimes referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities. The Paying Agent is hereby initially appointed “Security
Registrar” for the purpose of registering Securities and transfers of Securities
as herein provided.
17
(b) Upon
surrender for registration of transfer of any Security at the office or agency
of the Company designated pursuant to Section 7.2, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new CVR Certificates representing the
same aggregate number of CVRs represented by the CVR Certificate so surrendered
that are to be transferred and the Company shall execute and the Trustee shall
authenticate and deliver, in the name of the transferor, one or more new CVR
Certificates representing the aggregate number of CVRs represented by such CVR
Certificate that are not to be transferred.
(c) At
the option of the Holder, CVR Certificates may be exchanged for other CVR
Certificates that represent in the aggregate the same number of CVRs as the CVR
Certificates surrendered at such office or agency. Whenever any CVR
Certificates are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the CVR Certificates which the Holder
making the exchange is entitled to receive.
(d) All
Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same rights, and
entitled to the same benefits under this CVR Agreement, as the Securities
surrendered upon such registration of transfer or exchange.
(e) Every
Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
(f) No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4 or 6.6 not involving any transfer.
Section
3.6 Mutilated, Destroyed, Lost
and Stolen Securities.
(a) If
(i) any mutilated Security is surrendered to the Trustee, or (ii) the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and, upon delivery of a Company Order, the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new CVR Certificate of like tenor and
amount of CVRs, bearing a number not contemporaneously outstanding.
(b) In
case any such mutilated, destroyed, lost or stolen Security has become or is to
become due and payable within fifteen days, the Company in its discretion may,
instead of
18
issuing
a new CVR Certificate, pay to the Holder of such Security on the Payment Date,
as the case may be, all amounts due and payable with respect
thereto.
(c) Every
new Security issued pursuant to this Section 3.6 in lieu of any destroyed, lost
or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this CVR Agreement equally and proportionately with any and all
other Securities duly issued hereunder.
(d) The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
Section
3.7 Payments with respect to CVR
Certificates. Payment of any amounts pursuant to the CVRs
shall be made in such coin or currency of the United States of America as at the
time is legal tender for the payment of public and private debts. The
Company may, at its option, pay such amounts by wire transfer or check payable
in such money.
Section
3.8 Persons Deemed
Owners. Prior to the time of due presentment for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payment on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section
3.9 Cancellation. All
Securities surrendered for payment, registration of transfer or exchange shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this CVR Agreement. All cancelled Securities
held by the Trustee shall be disposed of and a certificate of disposal shall be
issued by the Trustee to the Company upon its request therefor.
Section
3.10 CUSIP
Numbers. The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the "CUSIP"
numbers.
19
ARTICLE
4
Section
4.1 Certain Duties and
Responsibilities. (a) With respect to the Holders, the
Trustee, prior to the occurrence of an Event of Default (as defined in Section
8.1) with respect to the Securities and after the curing or waiving of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this CVR Agreement and no
implied covenants shall be read into this CVR Agreement against the
Trustee. In case an Event of Default with respect to the Securities
has occurred (which has not been cured or waived), the Trustee shall exercise
such of the rights and powers vested in it by this CVR Agreement, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own
affairs.
(b) In
the absence of bad faith on its part, prior to the occurrence of an Event of
Default and after the curing or waiving of all such Events of Default which may
have occurred, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee which conform to the
requirements of this CVR Agreement; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this CVR
Agreement.
(c) No
provision of this CVR Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that (i) this Subsection (c) shall not be
construed to limit the effect of Subsections (a) and (b) of this Section; (ii)
the Trustee shall not be liable for any error of judgment made in good faith by
a Responsible Officer, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and (iii) the Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders pursuant to Section 8.9 relating to
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this CVR Agreement.
(d) Whether
or not therein expressly so provided, every provision of this CVR Agreement
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
Section
4.2 Certain Rights of
Trustee. Subject to the provisions of Section 4.1, including
without limitation, the duty of care that the Trustee is required to exercise
upon the occurrence of an Event of Default:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by
20
the
proper party or parties and the Trustee need not investigate any fact or matter
stated in the document;
(b) any
request or direction or order of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution
and the Trustee shall not be liable for any action it takes or omits to take in
good faith reliance thereon;
(c) whenever
in the administration of this CVR Agreement the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers’
Certificate and the Trustee shall not be liable for any action it takes or omits
to take in good faith reliance thereon or an Opinion of Counsel;
(d) the
Trustee may consult with counsel of its selection and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of
Counsel;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this CVR Agreement at the request or direction of any of the
Holders pursuant to this CVR Agreement, unless such Holders shall have offered
to the Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document, but the Trustee in its discretion
may make such further inquiry or investigation into such facts or matters as it
may see fit, and if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the expense of the Company
and shall incur no liability of any kind by reason of such inquiry or
investigation;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) the
Trustee shall not be liable for any action taken, suffered or omitted to be
taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this CVR
Agreement;
(i) the
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the
21
Corporate
Trust Office of the Trustee, and such notice references the Securities and this
Indenture;
(j) the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Paying Agent, the Security Registrar, the Trustee
in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder;
(k) in
no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action;
and
(l) certain
of the Trustee's duties hereunder may be performed by the Paying Agent or
Security Registrar.
Section
4.3 Notice of
Default. If a default occurs hereunder with respect to the
Securities, the Trustee shall give the Holders notice of any such default
actually known to it as and to the extent provided by the Trust Indenture act;
provided, however, that in the case of any default of the character specified in
Section 8.1(b) with respect to the Securities, no notice to Holders shall be
given until at least thirty (30) days after the occurrence
thereof. For the purpose of this Section 4.3, the term “default”
means any event that is, or after notice or lapse of time or both would become,
an Event of Default with respect to the Securities.
Section
4.4 Not Responsible for Recitals
or Issuance of Securities. The Trustee shall not be
accountable for the Company’s use of the Securities or the proceeds from the
Securities. The recitals contained herein and in the Securities,
except the Trustee’s certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity
or sufficiency of this CVR Agreement or of the Securities.
Section
4.5 May Hold
Securities. The Trustee, any Paying Agent, Security Registrar
or any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities, and, subject to Sections 4.8 and
4.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar or such other
agent.
Section
4.6 Money Held in
Trust. Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any
money received by it hereunder, except as otherwise agreed in writing with the
Company.
Section
4.7 Compensation and
Reimbursement. The Company agrees:
(a) to
pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder in such amount as the Company and the Trustee shall
agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
22
(b) except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this CVR Agreement (including
the reasonable compensation and the reasonable expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as shall
be determined to have been caused by the Trustee’s own negligence or bad faith;
and
(c) to
indemnify the Trustee and each of its agents, officers, directors and employees
(each an “indemnitee”) for, and to hold it harmless against, any loss,
liability, claim, damage or expense (including attorneys fees and expenses)
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust and the
performance of its duties hereunder, including the reasonable costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
Company’s payment obligations pursuant to this Section shall survive the
termination of this CVR Agreement and the resignation or removal of the
Trustee. When a Trustee incurs expenses after the occurrence of an
Event of Default specified in Section 8.1(c) or 8.1(d) with respect to the
Company, the expenses are intended to constitute expenses of administration
under bankruptcy laws.
Section
4.8 Disqualification;
Conflicting Interests.
(a) If
the Trustee has or shall acquire any conflicting interest within the meaning of
the Trust Indenture Act, it shall, within ninety days after ascertaining that it
has such conflicting interest, either eliminate such conflicting interest or
resign to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this CVR Agreement. The
Company shall take prompt steps to have a successor appointed in the manner
provided in this CVR Agreement.
(b) In
the event the Trustee shall fail to comply with the foregoing subsection 4.8(a),
the Trustee shall, within ten (10) days of the expiration of such ninety-day
period, transmit a notice of such failure to the Holders in the manner and to
the extent provided in the Trust Indenture Act and this CVR
Agreement.
(c) If
the Trustee fails to comply with Section 4.8(a) after written request therefore
by the Company or any Holder, any Holder of any Security who has been a bona
fide Holder for at least six (6) months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of such Trustee and the appointment of a successor Trustee.
Section
4.9 Corporate Trustee Required;
Eligibility. There shall at all times be a Trustee hereunder
which satisfies the requirements of Sections 310(a)(1) and (5) of the Trust
Indenture Act and has a combined capital and surplus of at least $50
million. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of a supervising or examining
authority, then for the purposes of this Section 4.9, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease
23
to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section
4.10 Resignation and Removal;
Appointment of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 4.11.
(b) The
Trustee, or any trustee or trustees hereafter appointed, may resign at any time
by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within thirty (30) days after the giving of such notice of resignation, the
resigning Trustee may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The
Trustee may be removed at any time by an act of the Holders of a majority of the
Outstanding Securities, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within thirty (30) days after the giving
of such notice of resignation, the resigning Trustee may petition at the expense
of the Company any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If
at any time:
(1) the
Trustee shall fail to comply with Section 4.8 after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Security for
at least six months, or
(2) the
Trustee shall cease to be eligible under Section 4.9 and shall fail to resign
after written request therefor by the Company or by any such Holder,
or
(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any case, (i) the Company, by a Board Resolution, may
remove the Trustee, or (ii) the Holder of any Security who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after any removal by Holders of a majority of the Outstanding
Securities, a successor Trustee shall be appointed by act of the Holders of a
majority of the Outstanding Securities delivered to the Company and the retiring
Trustee the successor Trustee so appointed shall, forthwith upon its acceptance
of such
24
appointment
in accordance with Section 4.11, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee
shall have been so appointed by the Company or the Holders of the Securities and
accepted appointment within sixty (60) days after the retiring Trustee tenders
its resignation or is removed, the retiring Trustee may, or, the Holder of any
Security who has been a bona fide Holder for at least six (6) months may on
behalf of himself and all others similarly situated, petition at the expense of
the Company any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of Securities as
their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust office. If the Company fails to send such notice
within ten (10) days after acceptance of appointment by a successor Trustee, it
shall not be a default hereunder but the successor Trustee shall cause the
notice to be mailed at the expense of the Company.
Section
4.11 Acceptance of Appointment of
Successor.
(a) Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, upon request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
(b) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
Section
4.12 Merger, Conversion,
Consolidation or Succession to Business. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, by sale or otherwise shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion, sale or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities; and such certificate shall have the full force
which it is anywhere in the Securities or in this CVR Agreement provided that
the certificate of the Trustee shall have; provided that the right to adopt
the
25
certificate
of authentication of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
Section
4.13 Preferential Collection of
Claims Against Company. If and when the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company (or any other obligor upon the Securities), excluding any creditor
relationship set forth in Section 311(b) of the Trust Indenture Act, the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other
obligor).
ARTICLE
5
Section
5.1 Company to Furnish Trustee
Names and Addresses of Holders. The Company will furnish or
cause to be furnished to the Trustee (i) promptly after the issuance of the
Securities, and semi-annually thereafter, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders as of a recent
date, and (ii) at such times as the Trustee may request in writing, within
thirty (30) days after receipt by the Company of any such request, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders as of a date not more than fifteen (15) days prior to the time such
list is furnished; provided, however, that if and so long as the Trustee shall
be the Security Registrar, no such list need be furnished.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 5.1 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 5.1 upon
receipt of a new list so furnished.
(b) The
rights of the Holders to communicate with other Holders with respect to their
rights under this CVR Agreement and the corresponding rights and privileges of
the Trustee shall be as provided by Section 312(b)(2) of the Trust Indenture
Act.
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee shall be deemed to be
in violation of law or held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act, regardless of the source from which such information was
derived.
Section
5.3 Reports by
Trustee.
(a) Within
sixty (60) days after December 31 of each year commencing with the December 31
following the date of this CVR Agreement, the Trustee shall transmit to all
Holders such reports concerning the Trustee and its actions under this CVR
Agreement as may be required pursuant to the Trust Indenture Act to the extent
and in the manner provided pursuant thereto. The Trustee shall also
comply with Section 313(b)(2) of the Trust Indenture Act. The
26
Trustee
shall also transmit by mail all reports as required by Section 313(c) of the
Trust Indenture Act.
(b) A
copy of each such report shall, at the time of such transmission to the Holders,
be filed by the Trustee with each stock exchange, if any, upon which the
Securities are listed, with the Commission and also with the
Company. The Company will promptly notify the Trustee when the
Securities are listed on any stock exchange.
Section
5.4 Reports by
Company. The Company shall: (a) file with the Trustee, (i)
within fifteen (15) days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company is required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act (such required information, documents and
other reports, together the “Exchange Act Documents”); and, (ii) if the Company
is not required to file Exchange Act Documents under Section 13 or 15(d) of the
Exchange Act, within forty five (45) days after each calendar quarter of the
Company (other than the last quarter of each calendar year), quarterly financial
information and, within ninety (90) days after each calendar year of the
Company, annual financial information that would be required pursuant to Section
13 of the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations (providing that such Company annual reports and quarterly
reports referred to in (i) and (ii) shall include a calculation of Adjusted
EBITDA for the reporting period); and (iii) with respect to the fiscal years
ending December 31, 2008 and December 31, 2009, prior to the earlier of (A)
fifteen (15) after the Company files with the Commission its annual report for
each fiscal year, or (B) one hundred five (105) days following the end of each
fiscal year, a certificate certified by the chief financial officer of the
Company setting forth the Adjusted EBITDA for the most recently completed fiscal
year of the CVR Measurement Period, such certificate to include an itemization
of each adjustment made to the Consolidated Net Income for such period
determined on a consolidated basis in accordance with GAAP to derive
Consolidated Net Income and each adjustment made to Consolidated Net Income to
derive Adjusted EBITDA, (b) file with the Trustee such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required from time to time
by the rules and regulations of the Commission, and (c) transmit by mail to all
Holders, as their names and addresses appear in the Security Register, on an
even date with the filing of such materials with the Trustee, summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) or (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
27
ARTICLE
6
Section
6.1 Amendments Without Consent
of Holders. Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may enter into one or more
amendments hereto or to the Securities, for any of the following
purposes:
(a) to
convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities any property or assets; or
(b) to
evidence the succession of another Person to the Company, and the assumption by
any such successor of the covenants of the Company herein and in the Securities;
or
(c) to
add to the covenants of the Company such further covenants, restrictions,
conditions or provisions as its Board of Directors and the Trustee shall
consider to be for the protection of the Holders of Securities, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this CVR Agreement as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision, such amendment may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of Default or may limit
the remedies available to the Trustee upon such an Event of Default or may limit
the right of the Holders of a majority of the Securities to waive such an Event
of Default; or
(d) to
cure any ambiguity, or to correct or supplement any provision herein or in the
Securities which may be defective or inconsistent with any other provision
herein; provided, that such provisions shall not materially reduce the benefits
of this CVR Agreement or the Securities to the Holders; or
(e) to
make any other provisions with respect to matters or questions arising under
this CVR Agreement; provided, that such provisions shall not adversely affect
the interests of the Holders; or
(f) to
make any amendments or changes necessary to comply or maintain compliance with
the Trust Indenture Act; or
(g) make
any change that does not adversely affect the interests of the
Holders.
Promptly
following any amendment of this CVR Agreement or the Securities in accordance
with this Section 6.1, the Trustee shall notify the Holders of the Securities of
such amendment; provided, that any failure so to notify the Holders shall not
affect the validity of such amendment.
Section
6.2 Amendments with Consent of
Holders. With the consent of the Holders of a majority of the
Outstanding Securities, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by a Board Resolution) and
the
28
Trustee
may enter into one or more amendments hereto or to the Securities for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this CVR Agreement or to the Securities or of modifying in
any manner the rights of the Holders under this CVR Agreement or to the
Securities; provided, however, that no such amendment shall, without the consent
of the Holder of each Outstanding Security affected thereby:
(a) modify
in a manner adverse to the Holders (i) any provision contained herein with
respect to the termination of this CVR Agreement or the Securities, (ii) the
time for payment and amount of the CVR Payment or otherwise extend the maturity
of the Securities or reduce the amounts payable in respect of the Securities or
modify any other payment term or payment date;
(b) reduce
the number of CVRs, the consent of whose Holders is required for any such
amendment; or
(c) modify
any of the provisions of this Section, except to increase any such percentage or
to provide that certain other provisions of this CVR Agreement cannot be
modified or waived without the consent of the Holder of each Security affected
thereby.
It
shall not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed amendment, but it shall be sufficient if such
Act shall approve the substance thereof.
Section
6.3 Execution of
Amendments. In executing any amendment permitted by this
Article, the Trustee (subject to Section 4.1) shall be provided with and fully
protected in relying upon an Opinion of Counsel and an Officer's Certificate
each stating that the execution of such amendment is authorized or permitted by
this CVR Agreement. The Trustee shall execute any amendment
authorized pursuant to this Article if the amendment does not adversely affect
the Trustee’s own rights, duties or immunities as determined by the Trustee in
its sole discretion under this CVR Agreement or otherwise. Otherwise,
the Trustee may, but need not, execute such amendment.
Section
6.4 Effect of Amendments; Notice
to Holders.
(a) Upon
the execution of any amendment under this Article, this CVR Agreement and the
Securities shall be modified in accordance therewith, and such amendment shall
form a part of this CVR Agreement and the Securities for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
(b) Promptly
after the execution by the Company and the Trustee of any amendment pursuant to
the provisions of this Article, the Company shall mail a notice thereof by first
class mail to the Holders of Securities at their addresses as they shall appear
on the Security Register, setting forth in general terms the substance of such
amendment. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such amendment.
Section
6.5 Conformity with Trust
Indenture Act. Every amendment executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act.
29
Section
6.6 Reference in Securities to
Amendments. If an amendment changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Trustee. Securities authenticated and delivered after the execution
of any amendment pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such amendment. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such amendment may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities. Failure to make the appropriate notation or
to issue a new Security shall not affect the validity of such
amendment.
ARTICLE
7
Section
7.1 Payment of Amounts, if any,
to Holders. The Company will duly and punctually pay the
amounts, if any, on the Securities in accordance with the terms of the
Securities and this CVR Agreement. Such amounts shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this CVR Agreement money sufficient to pay all such amounts then
due. Notwithstanding any other provision of this CVR Agreement, the
Trustee and the Paying Agent shall comply with all U.S. federal withholding
requirements with respect to payments to Holders that the Company, the Trustee
or the Paying Agent reasonably believes are applicable under the Internal
Revenue Code of 1986, as amended, and the Treasury regulations
thereunder. Amounts withheld in compliance with such withholding
requirements shall, for purposes of this CVR Agreement, be treated as paid to
the Holder such withholding was made with respect to. The consent of
Holder shall not be required for any such withholding.
Section
7.2 Maintenance of Office or
Agency.
(a) As
long as any of the Securities remain Outstanding, the Company will maintain in
the Borough of Manhattan, The City of New York, an office or agency (i) where
Securities may be presented or surrendered for payment, (ii) where Securities
may be surrendered for registration of transfer or exchange and (iii) where
notices and demands to or upon the Company in respect of the Securities and this
CVR Agreement may be served. The office or agency of the Trustee at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 shall be such office or agency of the
Company, unless the Company shall designate and maintain some other office or
agency for one or more of such purposes. The Company or any of its
Subsidiaries may act as Paying Agent, registrar or transfer agent; provided that
such Person shall take appropriate actions to avoid the commingling of
funds. The Company will give prompt written notice to the Trustee of
any change in the location of any such office or agency. If at any
time the Company shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
(b) The
Company may from time to time designate one or more other offices or agencies
(in or outside of The City of New York) where the Securities may be presented
or
30
surrendered
for any or all such purposes, and may from time to time rescind such
designation; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York for such
purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and any change in the location of any such
office or agency.
Section
7.3 Money for Security Payments
to Be Held in Trust.
(a) If
the Company or any of its Subsidiaries shall at any time act as the Paying
Agent, it will, on or before the Payment Date, as the case may be, segregate and
hold in trust for the benefit of the Holders all sums held by such Paying Agent
for payment on the Securities until such sums shall be paid to the Holders as
herein provided, and will promptly notify the Trustee of any default by the
Company in making payment on the Securities.
(b) Whenever
the Company shall have one or more Paying Agents for the Securities, it will, on
or before the Payment Date deposit with a Paying Agent a sum in same day funds
sufficient to pay the amount, if any, so becoming due; such sum to be held in
trust for the benefit of the Persons entitled to such amount, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
such action or any failure so to act.
(c) The
Company will cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that (i) such Paying
Agent will hold all sums held by it for the payment of any amount payable on
Securities in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will notify the Trustee of the sums so held and (ii) that it will give the
Trustee notice of any failure by the Company (or by any other obligor on the
Securities) to make any payment on the Securities when the same shall be due and
payable.
(d) Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment on any Security and remaining unclaimed for
one year after the Payment Date shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money shall thereupon
cease.
Section
7.4 Certain Purchases and
Sales. Nothing contained herein shall prohibit the Company or
any of its Subsidiaries or Affiliates from acquiring in open market
transactions, private transactions or otherwise, the Securities.
Section
7.5 Books and
Records. The Company shall, and shall cause its Subsidiaries
to keep true, complete and accurate records in sufficient detail to enable the
amounts payable hereunder to be determined by the Holders and their consultants
or professional advisors.
Section
7.6 Audits.
31
(a) Upon
the written request of the Majority Holders within the period set forth in
Section 3.1(c) (the “Review Request
Period”), the Company shall permit an independent certified public
accounting firm of nationally recognized standing jointly agreed upon by the
Majority Holders and the Company failing agreement on which, each shall
designate an independent public accounting firm of its own selection which shall
themselves appoint an independent public accounting firm for such purpose (the
"Independent
Accountant") to have access during normal business hours to such of the
records of the Company as may be reasonably necessary to verify the accuracy of
the CVR Statement and the figures underlying the calculations set forth therein,
including, without limitation, all written materials related to any Sale
Transaction reasonably requested by such Independent Account. The
Independent Accountant shall be charged to come to a final determination with
respect to those specific items in the CVR Statement that the parties disagree
on and submit to it for resolution. All other items in the CVR
Statement that the parties do not submit, prior to the end of the Review Request
Period, to the Independent Accountant for resolution shall be deemed to be
agreed and the Independent Accountant shall not be charged with calculating or
validating those agreed upon items. If issues are submitted to the
Independent Accountant for resolution, the Company shall or cause to be
furnished to the Independent Accountant such access, work papers and other
documents and information related to those disputed issues as the Independent
Accountant may request and are available to the Company or its representatives
before the opportunity to present to the Independent Accountant any material
related to the disputed issues and discuss the issues with the Independent
Accountant. The Independent Accountant shall disclose to the Majority
Holders any matters directly related to their findings, to the extent necessary
to verify the accuracy or completeness of the information provided by the
Company.
(b) If
such Independent Accountant concludes the CVR Payment amount should have been
greater than the CVR Payment set forth in the CVR Statement (the difference
being the “CVR
Shortfall”), the Company shall pay the CVR Shortfall with respect to each
CVR within six (6) months of the date the Majority Holders deliver to the
Company such accounting firm’s written report; provided that the CVR Shortfall
amount shall bear interest at the Shortfall Interest Rate beginning from thirty
(30) days after the date the Majority Holders deliver to the Company such
accounting firm’s written report until payment is made to the
Trustee. The decision of such accounting firm shall be final,
conclusive and binding on the Company and the Holders, shall be non-appealable
and shall not be subject to further review. The fees charged by such
accounting firm shall be paid by the Company.
(c) If,
upon the expiration of the Review Request Period, the Majority Holders have not
requested a review of the CVR Statement in accordance with this Section, the
calculation of the CVR Payment as set forth in the CVR Statement shall be
binding and conclusive upon the Holders, and the Company shall be released from
any liability or accountability with respect to payments in excess of such CVR
Payment.
(d) Each
person seeking to receive information from the Company in connection with a
review shall enter into, and shall cause its accounting firm to enter into, a
reasonable and mutually satisfactory confidentiality agreement with the Company
obligating such party to retain all such financial information disclosed to such
party in confidence pursuant to such confidentiality agreement.
32
Section
7.7 Listing of the
CVRs. The Company hereby covenants and agrees to use its
reasonable best efforts to cause the Securities to be approved for listing
(subject to notice of issuance) for trading on the Nasdaq Capital Market or such
other exchange(s), electronic trading networks or other suitable trading
platforms.
Section
7.8 Restrictive
Covenants. So long as any of the Securities remain
Outstanding, the Company shall not take or permit to be taken any of the
following actions:
(a) voluntarily
liquidate, dissolve or wind-up the Company or any of its
Subsidiaries;
(b) effect
any merger, consolidation or conversion of the Company or enter into any
transaction that would result in the Company (or any other member of the
Fresenius Group, subject to Section 7.9 (in the event part of the outstanding
shares or other equity interests or rights are transferred), or subject to
Section 9.1 in all other instances) failing to own directly all of the
outstanding shares or other equity interests, equity securities or rights
exercisable, exchangeable or convertible for or into shares or other equity
interests or share appreciation rights, phantom shares or other equity or
equity-like instruments of APP or permit APP to merge with another corporation
or entity;
(c) permit
APP or any of its Subsidiaries to enter into any transaction, that would result
in APP (or, subject to Section 7.9, any other member of the Fresenius Group)
failing to own directly or indirectly all of the outstanding shares or other
equity interests, equity securities or rights exercisable, exchangeable or
convertible for or into shares or other equity interests or share appreciation
rights, phantom shares or other equity or equity like instruments of each of the
Subsidiaries of APP;
(d) amend,
modify, or release Parent from its obligations under, the Parent Equity
Commitment Letter or fail to enforce Parent’s obligations thereunder;
or
(e) enter
into or permit to exist any agreement, arrangement or understanding that would
restrict or prevent payment of the CVR Payment on the Payment Date.
Section
7.9 Fresenius Group
Transactions. In the event the Company enters into or effects
any transaction with a member of the Fresenius Group which is permitted under
Section 7.8(b) (in the event part of the outstanding shares or other equity
interests or rights are transferred) or Section 7.8(c), in either case, solely
because such transaction is with a member of the Fresenius Group, then, the
Company shall cause the acquiring Fresenius Group member(s) involved in any such
transaction to include in all calculations relevant to the CVR Payment under
this CVR Agreement the results of operations of such acquiring Fresenius Group
member(s) attributable to such shares, equity, interests or rights transferred
in the same manner as such results were included in the Company’s consolidated
results before such transaction occurred, including Sales Adjustments in respect
of Sale Transactions by such member of the Fresenius Group.
Section
7.10 Enforcement of Parent Equity
Commitment. The Company shall take all actions reasonably
necessary, including bringing necessary legal action against Parent, to enforce
Parent’s obligations, and the Company’s rights under, the Parent Equity
Commitment.
33
Section
7.11 Arm’s Length
Transactions. The Company and its Subsidiaries shall only (a)
purchase, sell, lease, exchange or otherwise dispose of any property or assets,
(b) render any service or (c) enter into any other transaction on terms that are
not materially less favorable to the Company or such Subsidiary than terms that
could have been obtained at the time such transaction was agreed or effected in
an arm's length dealing with a Person who is not an Affiliate other than (1)
transactions between or among the Company and any of its Subsidiaries; (2)
transactions pursuant to the Parent Equity Commitment; (3) the issuance or
transfer of equity securities of the Company to any direct or indirect parent of
the Company and the payment of dividends, (4) payments with respect to the
Senior Obligations; (5) pursuant to tax sharing agreements entered into among
the Company, its Subsidiaries and any direct or indirect parent of the Company
on customary terms to the extent attributable to the ownership or operation of
the Company and its Subsidiaries, provided, that, in each case in this
sub-clause (5), the amount of payments by Company and its Subsidiaries under
such tax sharing agreements in any fiscal year does not exceed the amount that
the Company and its Subsidiaries would be required to pay in respect of foreign,
federal, state and local taxes for such fiscal year if the Company and its
Subsidiaries were to pay such taxes separately from any such parent entity; and
(6) transactions pursuant to agreements, instruments or arrangements to which
APP or any of its Subsidiaries were party to on the date of this CVR Agreement
with parties that are not Affiliates of the Company following the Merger, and
any amendment thereto to the extent such amendment is not materially adverse to
the Holders or is on arm’s length terms.
Section
7.12 Notice of
Default. The Company shall file with the Trustee written
notice of the occurrence of any Event of Default or other default under this CVR
Agreement within five (5) business days of its becoming aware of any such
Default or Event of Default.
ARTICLE
8
Section
8.1 Event of Default Defined;
Waiver of Default. “Event of Default”
with respect to the Securities, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental
body):
(a) default
in the payment of all or any part of the CVR Payments as and when the same shall
become due and payable at the Payment Date or otherwise; or
(b) default
in the performance, or breach, in any material respect, of any covenant or
warranty of the Company in respect of the Securities (other than a covenant or
warranty in respect of the Securities, a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and continuance of
such default or breach for a period of ninety days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Majority Holders, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” hereunder; or
34
(c) a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Company or for any substantial part of its property
or ordering the winding up or liquidation of its affairs, and such decree or
order shall remain unstayed and in effect for a period of sixty (60) consecutive
days; or
(d) the
Company shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such law, or
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Company or for any substantial part of its property, or make any general
assignment for the benefit of creditors.
If
an Event of Default described above occurs and is continuing, then, and in each
and every such case, either the Trustee or the Trustee upon the written request
of the Majority Holders by notice in writing to the Company (and to the Trustee
if given by the Majority Holders), shall bring suit to protect the rights of the
Holders, including to obtain payment for any amounts then due and payable, which
amounts shall bear interest at the Default Interest Rate until payment is made
to the Trustee.
The
foregoing provisions, however, are subject to the condition that if, at any time
after the Trustee shall have begun such suit, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all amounts which shall have become due (with interest
upon such overdue amount at the Default Interest Rate to the date of such
payment or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred and all advances made, by the Trustee, and if
any and all Events of Default under this CVR Agreement shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case the
Holders of a majority of all the Securities then Outstanding, by written notice
to the Company and to the Trustee, may waive all defaults with respect to the
Securities, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereof.
Section
8.2 Collection of Indebtedness
by Trustee; Trustee May Prove Debt. The Company covenants that
in case default shall be made in the payment of all or any part of the
Securities when the same shall have become due and payable, whether at the
Payment Date or otherwise, then upon demand of the Trustee, the Company will pay
to the Trustee for the benefit of the Holders of the Securities the whole amount
that then shall have become due and payable on all Securities (with interest
from the date due and payable to the date of such payment upon the overdue
amount at the Default Interest Rate); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee and each predecessor Trustee,
their respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee,
except as a result of its negligence or bad faith.
35
The
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this CVR Agreement or
in aid of the exercise of any power granted herein, or to enforce any other
remedy.
In
case the Company shall fail forthwith to pay such amounts upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Company or other obligor upon such Securities and
collect in the manner provided by law out of the property of the Company or
other obligor upon such Securities, wherever situated, the moneys adjudged or
decreed to be payable.
In
any judicial proceedings relative to the Company or other obligor upon the
Securities, irrespective of whether any amount is then due and payable with
respect to the Securities, the Trustee is authorized:
(a) to
file and prove a claim or claims for the whole amount owing and unpaid in
respect of the Securities, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee, except as a result of negligence or bad faith) and of
the Holders allowed in any judicial proceedings relative to the Company or other
obligor upon the Securities, or to their respective property;
(b) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings; and
(c) to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims
of the Holders and of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by each of
the Holders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the Holders, to pay to the
Trustee such amounts as shall be sufficient to cover reasonable compensation to
the Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee, except as a result of its
negligence or bad faith, and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 4.6. To the extent that such
payment of reasonable compensation, expenses, disbursements, advances and other
amounts out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid out
of, any and all distributions, dividends, moneys, securities and other property
which the Holders may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or
otherwise.
36
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or vote for or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities,
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar
person.
All
rights of action and of asserting claims under this CVR Agreement, or under any
of the Securities, may be enforced by the Trustee without the possession of any
of the Securities or the production thereof and any trial or other proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders.
In
any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this CVR Agreement to which the Trustee shall
be a party) the Trustee shall be held to represent all the Holders, and it shall
not be necessary to make any Holders of such Securities parties to any such
proceedings.
Section
8.3 Application of
Proceeds. Any monies collected by the Trustee pursuant to this
Article in respect of any Securities shall be applied in the following order at
the date or dates fixed by the Trustee upon presentation of the several
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment in exchange for the presented Securities
if only partially paid or upon surrender thereof if fully paid:
FIRST:
To the payment of costs and expenses in respect of which monies have been
collected, including reasonable compensation to the Trustee and each predecessor
Trustee and their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee, except as a result of its negligence or willful misconduct, and all
other amounts due to the Trustee or any predecessor Trustee pursuant to Section
4.6;
SECOND:
To the payment of the whole amount then owing and unpaid upon all the
Securities, with interest at the Default Interest Rate on all such amounts, and
in case such monies shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities, then to the payment of such amounts without
preference or priority of any security over any other Security, ratably to the
aggregate of such amounts due and payable; and
THIRD:
To the payment of the remainder, if any, to the Company.
Section
8.4 Suits for
Enforcement. In case an Event of Default has occurred, has not
been waived and is continuing, the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this CVR Agreement by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or
37
agreement
contained in this CVR Agreement or in aid of the exercise of any power granted
in this CVR Agreement or to enforce any other legal or equitable right vested in
the Trustee by this CVR Agreement or by law.
Section
8.5 Restoration of Rights on
Abandonment of Proceedings. In case the Trustee or any Holder
shall have proceeded to enforce any right under this CVR Agreement and such
proceedings shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to the Trustee or to such Holder, then and in
every such case the Company and the Trustee and the Holders shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the Holders shall continue
as though no such proceedings had been taken.
Section
8.6 Limitations on Suits by
Holders. Subject to the right of the Majority Holders under
Section 7.6, no Holder of any Security shall have any right by virtue or by
availing of any provision of this CVR Agreement to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this CVR Agreement, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Majority Holders shall have made written request
upon the Trustee to institute such action or proceedings in its own name as
trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustee for thirty (30) days after its
receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 8.9; it
being understood and intended, and being expressly covenanted by the taker and
Holder of every Security with every other taker and Holder and the Trustee, that
no one or more Holders of Securities shall have any right in any manner whatever
by virtue or by availing of any provision of this CVR Agreement to effect,
disturb or prejudice the rights of any other such Holder of Securities, or to
obtain or seek to obtain priority over or preference to any other such Holder or
to enforce any right under this CVR Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities. For the protection and enforcement of the provisions of
this Section, each and every Holder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section
8.7 Unconditional Right of
Holders to Institute Certain Suits. Notwithstanding any other
provision in this CVR Agreement and any provision of any Security, but subject
to Article 10, the right of any Holder of any Security to receive payment of the
amounts payable in respect of such Security on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
(a) Except
as provided in Section 8.6, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or
38
remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
(b) No
delay or omission of the Trustee or of any Holder to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such
Event of Default or an acquiescence therein; and, subject to Section 8.6, every
power and remedy given by this CVR Agreement or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
Section
8.9 Control by
Holders.
(a) The
Majority Holders shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to the Securities by
this CVR Agreement; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this CVR Agreement; and provided
further that (subject to the provisions of Section 4.1) the Trustee shall have
the right to decline to follow any such direction if the Trustee, being advised
by counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors, the
executive committee, or a trust committee of directors or responsible officers
of the Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities not joining in the giving of said direction.
(b) Nothing
in this CVR Agreement shall impair the right of the Trustee in its discretion to
take any action deemed proper by the Trustee and which is not inconsistent with
such direction or directions by Holders.
Section
8.10 Waiver of Past
Defaults.
(a) In
the case of a default or an Event of Default specified in clause (b), (c) or (d)
of Section 8.1, the Majority Holders may waive any such default or Event of
Default, and its consequences except a default in respect of a covenant or
provisions hereof which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver, the
Company, the Trustee and the Holders of the Securities shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
(b) Upon
any such waiver, such default shall cease to exist and be deemed to have been
cured and not to have occurred, and any Event of Default arising therefrom shall
be deemed to have been cured, and not to have occurred for every purpose of this
CVR Agreement;
39
but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
Section
8.11 Trustee to Give Notice of
Default, But May Withhold in Certain Circumstances. The
Trustee shall transmit to the Holders, as the names and addresses of such
Holders appear on the Security Register (as provided under Section 313(c) of the
Trust Indenture Act), notice by mail of all defaults which have occurred and are
known to the Trustee, such notice to be transmitted within ninety days after the
occurrence thereof, unless such defaults shall have been cured before the giving
of such notice (the term “default” for the purposes of this Section being hereby
defined to mean any event or condition which is, or with notice or lapse of time
or both would become, an Event of Default); provided that, except in the case of
default in the payment of the amounts payable in respect of any of the
Securities, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
Section
8.12 Right of Court to Require
Filing of Undertaking to Pay Costs. All parties to this CVR
Agreement agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this CVR Agreement or in
any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including attorneys’ fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 8.12 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder or group of Holders holding in the aggregate more than
ten percent (10%) of the Securities Outstanding or to any suit instituted by any
Holder for the enforcement of the payment of any Security on or after the due
date expressed in such Security.
ARTICLE
9
Section
9.1 Company May Consolidate,
etc., on Certain Terms. Except for a Change of Control
contemplated in Section 10.15, which shall be governed by such section, the
Company covenants that it will not merge or consolidate with or into any other
Person or sell or convey all or substantially all of its assets to any Person
(including a sale or conveyance of shares of APP to a member of the Fresenius
Group), unless, (i) such transaction complies with Section 7.11, (ii) the
Company shall be the continuing Person, or the successor Person or the Person
which acquires by sale or conveyance substantially all the assets of the Company
(including the shares of APP) shall be a Person organized under the laws of the
United States of America or any State thereof and shall expressly assume by an
instrument supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this CVR Agreement to be performed or
observed by the Company and (iii) the Company, or such successor Person, as the
case may be,
40
shall
not, immediately after such merger or consolidation, or such sale or conveyance,
be in default in the performance of any such covenant or condition.
Section
9.2 Successor Person
Substituted.
(a) In
case of any such consolidation, merger, sale or conveyance, and following such
an assumption by the successor Person, such successor Person shall succeed to
and be substituted for the Company with the same effect as if it had been named
herein. Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Company prior to such succession
any or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this CVR Agreement prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered to the Trustee for authentication, and any Securities which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All of the Securities so issued shall
in all respects have the same legal rank and benefit under this CVR Agreement as
the Securities theretofore or thereafter issued in accordance with the terms of
this CVR Agreement as though all of such Securities had been issued at the date
of the execution hereof.
(b) In
case of any such consolidation, merger, sale or conveyance, such changes in
phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate
(c) In
the event of any such sale, transfer or conveyance (other than a conveyance by
way of lease) the Company or any Person which shall theretofore have become such
in the manner described in this Article shall be discharged from all obligations
and covenants under this CVR Agreement and the Securities and may be liquidated
and dissolved.
Section
9.3 Opinion of Counsel to
Trustee. The Trustee, subject to the provisions of Sections
4.1 and 4.2, shall receive an Officer’s Certificate and Opinion of Counsel,
prepared in accordance with Sections 1.3 and 1.4, as conclusive evidence that
any such consolidation, merger, sale or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this CVR Agreement, and if a supplemental agreement is required in connection
with such transaction, such supplemental agreement complies with this Article
and that there has been compliance with all conditions precedent herein provided
for or relating to such transaction.
Section
9.4 Successors. All
covenants and provisions of this CVR Agreement by or for the benefit of the
Company, Trustee or the Holders shall bind and inure to the benefit of their
respective successors, assigns, heirs and personal representatives.
ARTICLE
10
Section
10.1 Agreement to
Subordinate. The Company agrees, and each Holder agrees, that
the CVR Payments, the Acceleration Payments, all other obligations under this
CVR Agreement and the Securities and any rights or claims relating thereto
(collectively, the “Junior
41
Obligations”)
are subordinated in right of payment, to the extent and in the manner provided
in this Article 10, to the prior payment in full of all Senior Obligations of
the Company (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed), and that the subordination is for the benefit
of the holders of such Senior Obligations.
Section
10.2 Liquidation; Dissolution;
Bankruptcy. Upon any distribution to creditors of the Company
in a liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property, in an assignment for the benefit of creditors or any
marshaling of the Company’s assets and liabilities:
(a) holders
of Senior Obligations will be entitled to receive payment in full in cash of all
Senior Obligations of the Company (including interest after the commencement of
any bankruptcy proceeding at the rate specified in the applicable Senior
Obligation, whether or not permitted under such bankruptcy proceedings) before
the Holders will be entitled to receive any payment with respect to the Junior
Obligations; and
(b) until
all Senior Obligations of the Company (as provided in clause (a)
above) are paid in full in cash, any distribution to which Holders would be
entitled but for this Article 10 will be made to holders of Senior Obligations
of the Company, as their interests may appear.
Section
10.3 Default on Senior
Obligations. The Company may not make any payment or
distribution to any Holder in respect of Junior Obligations or acquire from any
Holder for cash or property any Junior Obligations:
(a) if
any default on any Senior Obligations would occur as a result of such payment,
distribution or acquisition, provided, that, (i)
in the case of Senior Obligations constituting Intercompany Loans, such default
would cause a default to occur under the Senior Credit Facilities and (ii) in
the case of Senior Obligations constituting Other Senior Debt, such Senior
Obligations shall be in an aggregate amount exceeding €25 million;
(b) during
the continuance of any payment default in respect of any Senior Obligations
(after expiration of any applicable grace period); provided that, (i) in
the case of Senior Obligations constituting Other Senior Debt, such Senior
Obligations shall be in an aggregate amount exceeding €25 million and (ii) in
the case of Senior Obligations constituting Intercompany Loans, such default
shall have caused a default under the Senior Credit Facilities;
(c) if
the maturity of any Senior Obligations is accelerated in accordance with its
terms and such acceleration has not been rescinded; provided that, (i) in
the case of Senior Obligations constituting Other Senior Debt, such Senior
Obligations shall be in an aggregate amount exceeding €25 million and (ii) in
the case of Senior Obligations constituting Intercompany Loans, such
acceleration shall have caused a default under the Senior Credit Facilities;
or
(d) following
the occurrence of any default (other than a payment default, and after the
expiration of any applicable grace period) with respect to any Specified Senior
Indebtedness, the effect of which is to permit the holders of such Specified
Senior Indebtedness (or a trustee or agent acting on their behalf) to
cause, with the giving of notice if required, the
42
maturity
of such Specified Senior Indebtedness to be accelerated, for a period commencing
upon the receipt by the Trustee (with a copy to the Company) of a written notice
of such default from the representative of the holders of such Specified Senior
Indebtedness and ending when such Specified Senior Indebtedness is paid in full
in cash or, if earlier, when such default is cured or waived.
Section
10.4 Notice of Event of
Default. If an Event of Default occurs, the Company will
promptly notify the Representatives of Senior Obligations of such Event of
Default, but failure to give such notice will not affect the subordination of
the Junior Obligations to the Senior Obligations as provided in this Article
10.
Section
10.5 When Distribution Must Be
Paid Over.
(a) In
the event that the Trustee or any Holder receives any payment of any Junior
Obligations at a time when such payment is prohibited by this Article 10, such
payment will be held by the Trustee or such Holder, in trust for the benefit of,
and will be paid forthwith over and delivered, upon written request, to, the
holders of Senior Obligations of the Company as their interests may appear or
their Representative under the agreement, indenture or other document (if any)
pursuant to which such Senior Obligations may have been issued, as their
respective interests may appear, for application to the payment of all such
Senior Obligations remaining unpaid to the extent necessary to pay such Senior
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Obligations.
(b) Any
amount received by any Holder as a result of direct or indirect credit support
for the Junior Obligations from any Affiliate of the Company (including without
limitation, under the Parent Equity Commitment) shall be treated as payments
received by such Holder from the Company that are subject to the provisions of
this Article 10.
(c) With
respect to the holders of Senior Obligations, the Trustee undertakes to perform
only those obligations on the part of the Trustee as are specifically set forth
in this Article 10, and no implied covenants or obligations with respect to the
holders of Senior Obligations will be read into this Indenture against the
Trustee. The Trustee will not be deemed to owe any fiduciary duty to
the holders of Senior Obligations, and will not be liable to any such holders if
the Trustee pays over or distributes to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Obligations
are then entitled by virtue of this Article 10, except if such payment is made
as a result of the willful misconduct or gross negligence of the
Trustee.
Section
10.6 Notice by
Company. The Company will promptly notify the Trustee of any
facts known to the Company that would cause a payment of any Junior Obligations
to violate this Article 10, but failure to give such notice will not affect the
subordination of the Junior Obligations to the Senior Obligations as provided in
this Article 10.
Section
10.7 Subordination Effective
Notwithstanding Deficiencies with Respect to Senior Obligations; Waiver of Right
to Contest Senior Obligation; Reinstatement of Subordination
Provisions.
43
(a) The
Holders hereby agree that subordination provisions contained in this Article 10
are unconditional, irrespective of the validity, regularity or enforceability of
the Senior Obligations, the absence of any action to enforce the same, any
waiver or consent by any holder of Senior Obligations with respect to any
provisions thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense. Without limiting the foregoing, and
notwithstanding anything to the contrary contained elsewhere herein, in the
event that the amount of Senior Obligations are reduced or diminished for any
reason (other than as a result of the payment in cash thereof), whether because
of the applicability of fraudulent conveyance or other applicable laws, or any
other invalidity or limitation on the amount of Senior Obligations, the
subordination provisions thereof shall apply to the full amount of Senior
Obligations (without giving effect to any reduction, invalidity or diminution
thereof), and the turnover provisions hereunder shall be fully enforceable with
respect to the full amount of Senior Obligations (without giving effect to any
such reduction, invalidity or diminution thereof), even if the effect thereof is
that there will be no (or a limited amount of) Senior Obligations to which the
Junior Obligations are subrogated after the payment in full in cash of any of
then remaining Senior Obligations (without giving effect to any reductions,
invalidity or diminution thereof, except for reductions as a result of payments
thereof in cash).
(b) The
Trustee and the Holders agree that they shall not (and hereby waive any right
to) take any action to contest or challenge (or assist or support any other
Person in contesting or challenging), directly or indirectly, whether or not in
any proceeding (including in any proceeding commenced by or against any Person
under any provision of Title 11 of the United States Code, as now and
hereinafter in effect, or any successor statute or under any other state or
federal bankruptcy or insolvency law, assignments for the benefit of creditors,
formal or informal moratoria, compositions, extensions generally with creditors,
or proceedings seeking reorganization, arrangement, or other similar relief),
the validity or enforceability of the Senior Obligations.
(c) If
any payment made or in respect to the Senior Obligations must be disgorged or
returned for any reason, the Senior Obligations shall be reinstated hereunder
and for all purposes of this Article 10 (including, without limitation, the
turnover provisions hereof) such payment shall be deemed to have never been made
with respect to the Senior Obligations.
Section
10.8 Subrogation. After
all Senior Obligations are paid in full in cash and until the Junior Obligations
are paid in full, Holders will be subrogated to the rights of holders of Senior
Obligations to receive distributions applicable to Senior Obligations to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Obligations. The Holders by accepting the
Securities acknowledge that to the extent that the Senior Obligations are
determined to be unenforceable, or the Senior Obligations are subordinated to
other obligations of the Company, such subrogation rights may be
impaired.
Section
10.9 Relative
Rights. This Article 10 defines the relative rights of Holders
and holders of Senior Obligations. Nothing in this CVR Agreement
will:
(a) impair,
as between the Company and Holders, the obligations of the Company under this
CVR Agreement and the Securities; or
44
(b) affect
the relative rights of Holders and creditors of the Company other than their
rights in relation to holders of Senior Obligations.
If
the Company fails because of this Article 10 to pay any amounts due in respect
of the Securities on the due date, the failure is still an Event of
Default.
Section
10.10 Subordination May Not Be
Impaired by Company. No right of any holder of Senior
Obligations to enforce the subordination of the Junior Obligations may be
impaired by any act or failure to act by the Company or any Holder or by the
failure of the Company or any Holder to comply with this CVR
Agreement.
Section
10.11 Distribution or Notice to
Representative. Whenever a distribution is to be made or a
notice given to holders of Senior Obligations, the distribution may be made and
the notice given to their Representative.
Upon
any payment or distribution of assets of the Company referred to in this Article
10, the Trustee and the Holders will be entitled to rely upon any order or
decree made by any court of competent jurisdiction or upon any certificate of
such Representative or of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Obligations and other obligations of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article
10.
Section
10.12 Rights of
Trustee. Notwithstanding the provisions of this Article 10 or
any other provision of this CVR Agreement, the Trustee will not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment or distribution by the Trustee, and the Trustee may continue to make
payments on the Securities, unless the Trustee has received at its address for
notice specified in Section 1.5 at least five business days prior to the date of
such payment written notice of facts that would cause the payment of any Junior
Obligations to violate this Article 10. Only the Company or a
Representative may give the notice. Nothing in this Article 10 will
impair the claims of, or payments to, the Trustee under or pursuant to Section
4.7 hereof.
The
Trustee in its individual or any other capacity may hold Senior Obligations with
the same rights it would have if it were not Trustee.
Section
10.13 Authorization to Effect
Subordination. Each Holder, by the Holder’s acceptance
thereof, authorizes and directs the Trustee on such Holder’s behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Article 10, and appoints the Trustee to act as such Holder’s
attorney-in-fact for any and all such purposes. If the Trustee does
not file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 8.2 hereof at least 30 days before the
expiration of the time to file such claim, the Representatives are hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes.
Section
10.14 Amendments. The
provisions of this Article 10 are expressly made for the benefit of the holders
from time to time of the Senior Obligations, and may not be
45
amended
or modified without the written consent of the Representatives of the holders of
all Senior Obligations.
Section
10.15 Change of
Control.
(a) In
the event of a Change of Control of APP as a result of an event of default under
the financing arrangements which results in the sale or conveyance of APP or
substantially all of the assets of APP, the Company shall be obligated to pay
Holders an acceleration payment (“Acceleration
Payment”). The Acceleration Payment shall be calculated on the basis of
the aggregate Adjusted EBITDA achieved by APP since the beginning of the CVR
Measuring Period based on the financial statements filed in the Company’s last
quarterly report preceding the Change of Control (the “Accelerated CVR Measuring
Period”). The Adjusted EBITDA achieved shall be grossed up for the
balance of the CVR Measuring Period from the date of the Change of Control (the
“Grossed-Up Adjusted
EBITDA”) and shall equal the product of (a) the aggregate Adjusted EBITDA
achieved by APP in the Accelerated CVR Measuring Period multiplied by (b) the
quotient obtained by dividing (i) the total number of quarters in the CVR
Measuring Period (12) by (ii) the number of quarters in the Accelerated CVR
Measuring Period.
(b) The
Acceleration Payment, with respect to each CVR, will be an amount equal to the
lesser of: (1) the quotient obtained by dividing (i) the product of (x) 2.5
multiplied by and (y)(A) the aggregate of the Grossed-Up Adjusted EBITDA plus (B) the aggregate of any
Sale Adjustments in respect of Sale Transactions occurring prior to such Change
of Control minus (C)
the EBITDA Threshold Amount, by (ii) the Aggregate Share Number, or (2) the
Maximum CVR Payment.
Example:
Change of Control on October 29, 2009
|
(A)
|
Grossed-Up
Adjusted EBITDA = Adjusted EBITDA through September 30, 2009 x (12 /
7)
|
Acceleration
Payment equals the lesser of:
(B) |
(B)
2.5 x (A + aggregate Sales Adjustments - EBITDA Threshold Amount) /
Aggregate Share Number; OR
|
|
(C) |
the
Maximum CVR Payment (e.g. $6.00 per
CVR).
|
(c) The
calculation of the Acceleration Payment shall be subject to the review
provisions of Section 7.6 and shall be payable within six (6) months after the
Change of Control giving rise to the Acceleration Payment.
Upon
any payment or distribution of assets of the Company referred to in this
Article, the Trustee, subject to the provisions of Section 4.1, and the Holders
of the Securities shall be entitled to conclusively rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee
in
46
bankruptcy,
liquidating trustee, Custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
Section
10.17 Trustee Not Fiduciary for
Holders of Senior Indebtedness.
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if the Trustee shall in
good faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this CVR Agreement against the Trustee.
47
FRESENIUS
KABI PHARMACEUTICALS
|
||||
HOLDING,
INC.
|
||||
By:
|
/s/ Xxxxxx Xxxxx | |||
Name: |
Xxxxxx
Xxxxx
|
|||
Title: |
Director
|
THE
BANK OF NEW YORK MELLON TRUST
|
||||
COMPANY,
N.A.,
|
||||
as
Trustee
|
||||
By:
|
/s/ Xxxxxx X. Xxxxxxx | |||
Name: |
Xxxxxx
X. Xxxxxxx
|
|||
Title: |
Vice
President
|
THE
BANK OF NEW YORK MELLON
|
||||
as
Paying Agent and Security Registrar
|
||||
By:
|
/s/ Xxxxx Xxxxx | |||
Name: |
Xxxxx
Xxxxx
|
|||
Title:
|
Event
Manager
|
Annex
A
|
Form
of CVR Certificate
|
No.
|
Certificate
for
|
Contingent
Value Rights
|
CUSIP
00000X000
|
This
certifies that ____________, or registered assigns (the “Holder”), is the
registered holder of the number of Contingent Value Rights (“CVRs”) set forth
above. Each CVR entitles the Holder, subject to the provisions
contained herein and in the CVR Agreement referred to on the reverse hereof, to
payments from Fresenius Kabi Pharmaceuticals Holding, Inc., a Delaware
corporation (the “Company”), in an
amount and in the form determined pursuant to the provisions set forth on the
reverse hereof and as more fully described in the CVR Agreement referred to on
the reverse hereof. Such payment, if any, shall be made on the
Payment Date, as defined in the CVR Agreement referred to on the reverse
hereof.
Payment
of any amounts pursuant to this CVR Certificate shall be made only to the Holder
of this CVR Certificate. Such payment shall be made in the Borough of
Manhattan, The City of New York, or at any other office or agency maintained by
the Company for such purpose, in such coin or currency of the United States of
America as at the time is legal tender for the payment of public and private
debts; provided, however, the Company may pay such amounts by wire transfer or
check payable in such money. The Bank of New York Mellon Trust
Company, N.A. has been initially appointed as Paying Agent at its office or
agency in the Borough of Manhattan, The City of New York.
Reference
is hereby made to the further provisions of this CVR Certificate set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless
the certificate of authentication hereon has been duly executed by the Trustee
referred to on the reverse hereof by manual signature, this CVR Certificate
shall not be entitled to any benefit under the CVR Agreement, or be valid or
obligatory for any purpose.
Dated:
|
FRESENIUS
KABI PHARMACEUTICALS
|
||
HOLDING,
INC.
|
|||
By:
|
|||
Name:
|
|||
Title:
|
A-1
[Form
of Reverse of CVR Certificate]
This
CVR Certificate is issued under and in accordance with the Contingent Value
Rights Agreement, dated as of September 10, 2008 (the “CVR Agreement”),
among the Company and The Bank of New York Mellon Trust Company, N.A., a
national banking association, as trustee (the “Trustee,” which term
includes any successor Trustee under the CVR Agreement), and The Bank of New
York Mellon, as paying agent and security registrar, and is subject to the terms
and provisions contained in the CVR Agreement, to all of which terms and
provisions the Holder of this CVR Certificate consents by acceptance
hereof. The CVR Agreement is hereby incorporated herein by reference
and made a part hereof. Reference is hereby made to the CVR Agreement
for a full statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the CVRs. All capitalized terms used in this CVR
Certificate without definition shall have the respective meanings ascribed to
them in the CVR Agreement. Copies of the CVR Agreement can be
obtained by contacting the Trustee.
The
Company shall pay to the Holder hereof on June 30, 2011, with respect to each
CVR, the CVR Payment; provided, that in no event shall the CVR Payment with
respect to each CVR exceed the Maximum CVR Payment.
The
CVR Payment, if any, and interest thereon, if any, shall be payable by the
Company in such coin or currency of the United States of America as at the time
is legal tender for the payment of public and private debts; provided, however,
the Company may pay such amounts by its check or wire transfer payable in such
money. The Trustee has been initially appointed as Paying Agent at
its office or agency in the Borough of Manhattan, The City of New
York.
If
an Event of Default occurs and is continuing, either the Trustee may or the
Majority Holders, by notice to the Company and to the Trustee shall bring suit
to protect the rights of the Holders, including to obtain payment of all amounts
then due and payable, with interest at the Default Interest Rate from the date
of the Event of Default through the date payment is made or duly provided
for.
The
CVR Payment and all other obligations of the Company under this CVR Certificate
and the CVR Agreement are subordinated to the prior payment in full of all
Senior Obligations on the terms provided in the CVR Agreement.
The
CVR Agreement permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of CVRs under the CVR Agreement at any
time by the Company and the Trustee with the consent of the holders of a
majority of the CVRs at the time outstanding.
No
reference herein to the CVR Agreement and no provision of this CVR Certificate
or of the CVR Agreement shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay any amounts determined pursuant to
the terms hereof and of the CVR Agreement at the times, place and amount, and in
the manner, herein prescribed. The Holder of this CVR Certificate, by
acceptance hereof, agrees that the Company has no obligation
A-2
to
initiate or continue research, development or commercialization activities with
respect to any products or whether or not in development or commercialized prior
to the date the CVRs were first issued by the Company and, in its sole
subjective discretion, the Company may abandon efforts to research, develop or
commercialize product.
As
provided in the CVR Agreement and subject to certain limitations therein set
forth, the transfer of the CVRs represented by this CVR Certificate is
registrable on the Security Register, upon surrender of this CVR Certificate for
registration of transfer at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan, The City of New York, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new CVR
Certificates, for the same amount of CVRs, will be issued to the designated
transferee or transferees. The Company hereby initially designates
the office of the Trustee at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 as the
office for registration of transfer of this CVR Certificate.
As
provided in the CVR Agreement and subject to certain limitations therein set
forth, this CVR Certificate is exchangeable for one or more CVR Certificates
representing the same number of CVRs as represented by this CVR Certificate as
requested by the Holder surrendering the same.
No
service charge will be made for any registration of transfer or exchange of
CVRs, but the Company may require payment of a sum sufficient to cover all
documentary, stamp or similar issue or transfer taxes or other governmental
charges payable in connection with any registration of transfer or
exchange.
Prior
to the time of due presentment of this CVR Certificate for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this CVR Certificate is registered as the
owner hereof for all purposes, and neither the Company, the Trustee nor any
agent shall be affected by notice to the contrary.
Neither
the Company nor the Trustee has any duty or obligation to the holder of this CVR
Certificate, except as expressly set forth herein or in the CVR
Agreement.
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
this
is one of the CVR Certificates referred to in the within-mentioned CVR
Agreement.
The
Bank of New York Mellon Trust Company,
|
|||||
N.A.,
|
|||||
as
Trustee
|
|||||
Dated:
|
By
|
||||
Authorized
Signatory
|
A-3