Pursuant to 17 CFR 229.601(b)(10)(iv), confidential information (indicated by [***]) has been omitted from this exhibit because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
Exhibit 10.6
Execution Version
AEGERION PHARMACEUTICALS. INC.,
THE GUARANTOR PARTIES HERETO
and
GLAS TRUST COMPANY LLC
as Trustee
INDENTURE
Dated as of September 24, 2019
5.00% Convertible Senior Notes due 2025
CROSS REFERENCE TABLE*
Trust Indenture Act Section |
Indenture Section |
||
310 | (a)(1) | 11.09 | |
(a)(2) | 11.09 | ||
(a)(3) | N/A | ||
(a)(4) | N/A | ||
(a)(5) | N/A | ||
(b) | 11.09, 11.03 | ||
(c) | N/A | ||
311 | (a) | 11.03 | |
(b) | 11.03 | ||
(c) | N/A | ||
312 | (a) | 2.08 | |
(b) | N/A | ||
(c) | N/A | ||
313 | (a) | N/A | |
(b)(1) | N/A | ||
(b)(2) | N/A | ||
(c) | N/A | ||
(d) | N/A | ||
314 | (a) | 3.02(A) | |
(b) | N/A | ||
(c)(1) | 12.02(A) | ||
(c)(2) | 12.02(B) | ||
(c)(3) | N/A | ||
(d) | N/A | ||
(e) | 12.02(A), 12.02(B) | ||
(f) | N/A | ||
315 | (a) | 11.01(B) | |
(b) | 11.05 | ||
(c) | 11.01(A) | ||
(d) | 11.01(C) | ||
(e) | 7.12 | ||
316 | (a) (last sentence) | 2.15 | |
(a)(1)(A) | 7.06 | ||
(a)(1)(B) | 7.05 | ||
(a)(2) | N/A | ||
(b) | 7.08 | ||
(c) | N/A | ||
317 | (a)(1) | 7.09 | |
(a)(2) | 7.10 | ||
(b) | 2.07 |
Trust Indenture Act Section |
Indenture Section |
||
318 | (a) | N/A | |
(b) | 12.17 | ||
(c) | N/A |
N/A means not applicable.
* This Cross Reference Table is not part of the Indenture.
Page | ||||
Article 1. Definitions; Rules of Construction | 1 | |||
Section 1.01. | Definitions | 1 | ||
Section 1.02. | Other Definitions | 17 | ||
Section 1.03. | Rules of Construction | 18 | ||
Article 2. The Notes | 19 | |||
Section 2.01. | Form, Dating and Denominations | 19 | ||
Section 2.02. | Execution, Authentication and Delivery | 20 | ||
Section 2.03. | Initial Notes and Additional Notes | 21 | ||
Section 2.04. | Method of Payment | 21 | ||
Section 2.05. | Accrual of Interest; Defaulted Amounts; When Payment Date is Not a Business Day |
22 | ||
Section 2.06. | Registrar, Paying Agent and Conversion Agent | 22 | ||
Section 2.07. | Paying Agent and Conversion Agent to Hold Property in Trust | 23 | ||
Section 2.08. | Holder Lists | 24 | ||
Section 2.09. | Legends | 24 | ||
Section 2.10. | Transfers and Exchanges; Certain Transfer Restrictions | 24 | ||
Section 2.11. | Exchange and Cancellation of Notes to Be Converted, Redeemed or Repurchased | 30 | ||
Section 2.12. | Replacement Notes | 31 | ||
Section 2.13. | Registered Holders; Certain Rights with Respect to Global Notes | 31 | ||
Section 2.14. | Cancellation | 32 | ||
Section 2.15. | Notes Held by the Company | 32 | ||
Section 2.16. | Temporary Notes | 32 | ||
Section 2.17. | Outstanding Notes | 32 | ||
Section 2.18. | Repurchases by the Company | 33 | ||
Section 2.19. | CUSIP and ISIN Numbers | 33 | ||
Article 3. Covenants | 34 | |||
Section 3.01. | Payment on Notes | 34 | ||
Section 3.02. | Reports | 34 | ||
Section 3.03. | Additional Interest | 34 | ||
Section 3.04. | Additional Amounts | 35 | ||
Section 3.05. | Compliance and Default Certificates | 38 | ||
Section 3.06. | Stay, Extension and Usury Laws | 38 | ||
Section 3.07. | Corporate Existence | 38 | ||
Section 3.08. | Restriction on Acquisition of Notes by the Company | 38 | ||
Section 3.09. | Further Instruments and Acts | 39 | ||
Section 3.10. | Listing | 39 | ||
Section 3.11. | Restricted Payments | 39 | ||
Section 3.12. | Dispositions | 40 | ||
Section 3.13. | Indebtedness | 41 |
Article 4. Repurchase and Redemption | 43 | |||
Section 4.01. | No Sinking Fund | 43 | ||
Section 4.02. | Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change | 43 | ||
Section 4.03. | Right of the Company to Redeem the Notes | 47 | ||
Article 5. Conversion | 51 | |||
Section 5.01. | Right to Convert | 51 | ||
Section 5.02. | Conversion Procedures | 52 | ||
Section 5.03. | Settlement upon Conversion | 53 | ||
Section 5.04. | Reserve and Status of Ordinary Shares Issued upon Conversion | 56 | ||
Section 5.05. | Adjustments to the Conversion Rate | 56 | ||
Section 5.06. | Voluntary Adjustments | 66 | ||
Section 5.07. | Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change | 66 | ||
Section 5.08. | Restriction on Conversions | 68 | ||
Section 5.09. | Effect of Ordinary Share Change Event | 69 | ||
Section 5.10. | Responsibility of Trustee | 70 | ||
Article 6. Successors | 71 | |||
Section 6.01. | When the Company May Merge, Etc. | 71 | ||
Section 6.02. | Successor Corporation Substituted | 71 | ||
Article 7. Defaults and Remedies | 72 | |||
Section 7.01. | Events of Default | 72 | ||
Section 7.02. | Acceleration | 74 | ||
Section 7.03. | Sole Remedy for a Failure to Report | 74 | ||
Section 7.04. | Other Remedies | 75 | ||
Section 7.05. | Waiver of Past Defaults | 76 | ||
Section 7.06. | Control by Majority | 76 | ||
Section 7.07. | Limitation on Suits | 76 | ||
Section 7.08. | Absolute Right of Holders to Receive Payment and Conversion Consideration | 77 | ||
Section 7.09. | Collection Suit by Trustee | 77 | ||
Section 7.10. | Trustee May File Proofs of Claim | 77 | ||
Section 7.11. | Priorities | 78 | ||
Section 7.12. | Undertaking for Costs | 78 | ||
Article 8. Amendments, Supplements and Waivers | 78 | |||
Section 8.01. | Without the Consent of Holders | 78 | ||
Section 8.02. | With the Consent of Holders | 79 | ||
Section 8.03. | Notice of Amendments, Supplements and Waivers | 81 | ||
Section 8.04. | Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc. | 81 | ||
Section 8.05. | Notations and Exchanges | 81 | ||
Section 8.06. | Trustee to Execute Supplemental Indentures | 82 |
Article 9. Guarantees | 82 | |||
Section 9.01. | Guarantees | 82 | ||
Section 9.02. | Limitation on Guarantor Liability | 83 | ||
Section 9.03. | Execution and Delivery of Guarantee | 84 | ||
Section 9.04. | When Guarantors May Merge, Etc. | 84 | ||
Section 9.05. | Future Guarantors | 85 | ||
Section 9.06. | Application of Certain Provisions to the Guarantors | 86 | ||
Article 10. Satisfaction and Discharge | 86 | |||
Section 10.01. | Termination of Company’s Obligations | 86 | ||
Section 10.02. | Repayment to Company | 87 | ||
Section 10.03. | Reinstatement | 87 | ||
Article 11. Trustee | 87 | |||
Section 11.01. | Duties of the Trustee | 87 | ||
Section 11.02. | Rights of the Trustee | 89 | ||
Section 11.03. | Individual Rights of the Trustee | 90 | ||
Section 11.04. | Trustee’s Disclaimer | 90 | ||
Section 11.05. | Notice of Defaults | 91 | ||
Section 11.06. | Compensation and Indemnity | 91 | ||
Section 11.07. | Replacement of the Trustee | 92 | ||
Section 11.08. | Successor Trustee by Xxxxxx, Etc. | 93 | ||
Section 11.09. | Eligibility; Disqualification | 93 | ||
Article 12. Miscellaneous | 94 | |||
Section 12.01. | Notices | 94 | ||
Section 12.02. | Delivery of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent | 96 | ||
Section 12.03. | Statements Required in Officer’s Certificate and Opinion of Counsel | 96 | ||
Section 12.04. | Rules by the Trustee, the Registrar and the Paying Agent | 96 | ||
Section 12.05. | No Personal Liability of Directors, Officers, Employees and Shareholders | 96 | ||
Section 12.06. | Governing Law; Waiver of Jury Trial | 97 | ||
Section 12.07. | Submission to Jurisdiction | 97 | ||
Section 12.08. | No Adverse Interpretation of Other Agreements | 97 | ||
Section 12.09. | Successors | 97 | ||
Section 12.10. | Force Majeure | 97 | ||
Section 12.11. | U.S.A. PATRIOT Act | 98 | ||
Section 12.12. | Calculations; Determinations | 98 | ||
Section 12.13. | Severability | 98 | ||
Section 12.14. | Counterparts | 98 | ||
Section 12.15. | Table of Contents, Headings, Etc. | 98 | ||
Section 12.16. | Withholding Taxes | 99 | ||
Section 12.17. | Trust Indenture Act Controls | 99 | ||
Exhibits | ||||
Exhibit A: Form of Note | A-l |
Exhibit B: Form of Global Note Legend | B-1 |
INDENTURE, dated as of September 24, 2019, among Aegerion Pharmaceuticals, Inc., a Delaware corporation, as issuer (the “Company”), Amryt Pharma Holdings plc, a company incorporated in England and Wales with company number 12107859 (to be renamed on or around the date hereof as Amryt Pharma plc) (the “Parent”), Amryt Pharma plc, a company incorporated in England and Wales with company number 05316808 (to be renamed and re-registered on or around the date hereof as Amryt Pharma Holdings Limited) (“Old Parent”), the additional guarantors listed on the signature pages hereto, as guarantors (together with the Parent and Old Parent, the “Guarantors”), and GLAS Trust Company LLC, a limited liability company organized and existing under the laws of the State of New Hampshire, as trustee (the “Trustee”).
Each party to this Indenture (as defined below) agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders (as defined below) of the Company’s 5.00% Convertible Senior Notes due 2025 (the “Notes”).
Article 1. DEFINITIONS; RULES OF CONSTRUCTION
Section 1.01. Definitions.
“144A Global Note” means a Global Note bearing the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes and initially issued in reliance on Rule 144A.
“Additional Interest” means any interest that accrues on any Note pursuant to Section 3.03.
“Affiliate” has the meaning set forth in Rule 144 as in effect on the Issue Date.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
“Attributable Indebtedness” means, at any date, (a) in respect of any Capital Lease Obligation (other than a lease resulting from a Sale Leaseback) of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with IFRS, and (b) in respect of any Sale Leaseback, the present value, discounted in accordance with IFRS, at the interest rate implicit in the related lease, of the obligations of the lessee for net rental payments over the remaining term of such lease (including any period for which such lease has been extended or may, at the option of the lessor be extended).
“Authorized Denomination” means, with respect to a Note, a principal amount thereof equal to $1,000 or any integral multiple of $1 in excess thereof.
“Bankruptcy Law” means Title 11, United States Code, or any similar U.S. federal or state or non-U.S. law for the relief of debtors.
“Board of Directors” means the board of directors of the Company or a committee of
such board duly authorized to act on behalf of such board.
“Business Day” means any day other than (i) a Saturday, (ii) a Sunday or (iii) any day on which banking institutions in New York City or London are authorized or required by law or executive order to close or be closed.
“Capital Lease” means, with respect to any Person, any leasing or similar arrangement conveying the right to use any property, whether real or personal property, or a combination thereof, by that Person as lessee that, in conformity with IFRS, is required to be accounted for as a capital lease on the balance sheet of such Person.
“Capital Lease Obligation” means, with respect to any Person, all monetary or financial obligations of such Person and its Subsidiaries under any Capital Leases, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with IFRS, and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date on which such lease may be terminated by the lessee without payment of a penalty; provided that any obligations that were not required to be included on the balance sheet of such Person as capital lease obligations when incurred but are subsequently re-characterized as capital lease obligations due to a change in accounting rules after the Issue Date shall for all purposes hereunder not be treated as a Capital Lease Obligation.
“Capital Stock” of any Person means any and all shares of, interests in, rights to purchase, warrants or options for, participations in, or other equivalents of, in each case however designated, the equity of such Person, but excluding any debt securities convertible into such equity.
“Cash Equivalents” means any of the following: (A) readily marketable direct obligations of the Government of the United States or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the Government of the United States, (B) securities with maturities of 365 days or less from the date of acquisition that are issued or fully guaranteed by any state, district or territory of the United States, by any political subdivision or taxing authority of any such state, district or territory or by any foreign government, the securities of which state, district or territory, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Xxxxx’x, (C) commercial paper maturing not more than two hundred and seventy (270) days from the date of issue and issued by a corporation (other than an Affiliate of the Company or any Guarantor) organized under the laws of any state of the United States of America or of the District of Columbia and, at the time of acquisition thereof, rated A 2 or higher by S&P, P 2 or higher by Xxxxx’x or F2 or higher by Fitch, (D) money market mutual or similar funds that invest substantially all of their assets in one or more type of securities satisfying the requirements of clauses (A) through (C) of this definition, (E) Investments, classified in accordance with IFRS as current assets of the Parent or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions having capital of at least $500,000,000, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clause (A) of this definition, (F) agencies (LSE’s), State (municipal bonds), or corporate bonds having a long term rating of at least A- or
A3 from S&P, Xxxxx’x or Fitch, having maturities of not more than fifteen (15) months from the date of acquisition and (G) money market funds having a rating of AAAm/Aaa or better from S&P, Xxxxx’x or Fitch.
“Change in Tax Law” means any change or amendment in the laws, rules or regulations of a Relevant Taxing Jurisdiction, or any change in an official written interpretation, administration or application of such laws, rules or regulations by any legislative body, court, governmental taxing authority or regulatory or administrative authority of such Relevant Taxing Jurisdiction (including the enactment of any legislation and the publication of any judicial decision or regulatory or administrative interpretation or determination) affecting taxation, which change or amendment (A) had not been theretofore publicly announced; and (B) becomes effective on or after September 24, 2019 (or, if the Relevant Taxing Jurisdiction was not a Relevant Taxing Jurisdiction on such date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction).
“Close of Business” means 5:00 p.m., New York City time.
“Company” means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and assigns.
“Company Order” means a written request or order signed on behalf of the Company by one (1) of its Officers and delivered to the Trustee.
“Conversion Date” means, with respect to a Note, the first Business Day on which the requirements set forth in Section 5.02(A) to convert such Note are satisfied.
“Conversion Price” means, as of any time, an amount equal to (A) one thousand dollars ($1,000) divided by (B) the Conversion Rate in effect at such time.
“Conversion Rate” initially means 386.75 Ordinary Shares per $1,000 principal amount of Notes; provided, however, that the Conversion Rate is subject to adjustment pursuant to Article 5; provided, further, that whenever this Indenture refers to the Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the Conversion Rate immediately after the Close of Business on such date.
“Conversion Share” means any Ordinary Share issued or issuable upon conversion of any Note.
“Cumulative Credit” means the sum of (without duplication) (A) five million dollars ($5,000,000), (B) fifty percent (50%) of the consolidated net income of the Parent for the period from the Issue Date to the end of the Company’s most recently ended fiscal quarter for which financials statements have been delivered in accordance with Section 3.02(A) at the time of such Restricted Payment and (C) one hundred percent (100%) of the aggregate net proceeds, of property received by the Company after the Issue Date from the issue or sale of Equity Interests (other than any Equity Interests under the CVR Instrument, excluding any such net proceeds used to pay amounts under the CVR Instrument.
“CVR Instrument” means the deed poll entered into by the Parent on or around the date of this Indenture constituting certain contingent value rights.
“Daily Cash Amount” means, with respect to any VWAP Trading Day, the lesser of (A) the applicable Daily Maximum Cash Amount; and (B) the Daily Conversion Value for such VWAP Trading Day.
“Daily Conversion Value” means, with respect to any VWAP Trading Day, one-twentieth (l/20th) of the product of (A) the Conversion Rate on such VWAP Trading Day; and (B) the Daily VWAP per Ordinary Share on such VWAP Trading Day.
“Daily Maximum Cash Amount” means, with respect to the conversion of any Note, the quotient obtained by dividing (A) the Specified Dollar Amount applicable to such conversion by (B) twenty (20).
“Daily Share Amount” means, with respect to any VWAP Trading Day, the quotient obtained by dividing (A) the excess, if any, of the Daily Conversion Value for such VWAP Trading Day over the applicable Daily Maximum Cash Amount by (B) the Daily VWAP for such VWAP Trading Day. For the avoidance of doubt, the Daily Share Amount will be zero for such VWAP Trading Day if such Daily Conversion Value does not exceed such Daily Maximum Cash Amount.
“Daily VWAP” means, for any VWAP Trading Day, the per share volume-weighted average price of the Ordinary Shares on the Relevant Stock Exchange in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one Ordinary Share on such VWAP Trading Day, determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm selected by the Company, which may include any of the Investors). The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session. The Daily VWAP for any VWAP Trading Day will be expressed in U.S. dollars and, if expressed in a different currency for such VWAP Trading Day as determined above (which, for the avoidance of doubt, will be the case at the time the Notes are initially issued), will be translated to U.S. dollars at the Prevailing Exchange Rate on such VWAP Trading Day.
“Deed Poll Constituting Loan Notes” means the deed poll to be entered into by the Parent in the form set out in schedule 1 of the CVR Instrument if it elects to satisfy its payment obligations under the CVR Instrument by the issue of loan notes.
“Default” means any event that is (or, after notice, passage of time or both, would be) an Event of Default.
“Default Settlement Method” means Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes; provided, however, that the Company
may, from time to time, change the Default Settlement Method by sending notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent.
“Depositary” means The Depository Trust Company or its successor.
“Depositary Participant” means any member of, or participant in, the Depositary.
“Depositary Procedures” means, with respect to any conversion, transfer, exchange or transaction involving a Global Note or any beneficial interest therein, the rules and procedures of the Depositary applicable to such conversion, transfer, exchange or transaction.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition of any asset or property by the Parent or any of its Subsidiaries (including any Spin-Off, Sale Leaseback and any sale of Equity Interests, but excluding any issuance by the Company or a Guarantor of its own Equity Interests).
“Disqualified Equity Interests” has the meaning set forth in the Senior Secured Credit Facility.
“Equity Interests” means, with respect to any Person, all of the shares of Capital Stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of Capital Stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of Capital Stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, in each case, excluding the Notes, and any refinancings thereof.
“Ex-Dividend Date” means, with respect to an issuance, dividend or distribution on the Ordinary Shares, the first date on which the Ordinary Shares trade on the Relevant Stock Exchange (or, if there is no Relevant Stock Exchange, on the other applicable exchange or in the applicable market), regular way, without the right to receive such issuance, dividend or distribution (including pursuant to due bills or similar arrangements required by the relevant stock exchange). For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of the Ordinary Shares under a separate ticker symbol or CUSIP number will not be considered “regular way” for this purpose.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Freely Tradable” means, with respect to any Note, that such Note would be eligible to be offered, sold or otherwise transferred pursuant to Rule 144 or otherwise if held by a Person that is not an Affiliate of the Company, and that has not been an Affiliate of the Company during the immediately preceding three (3) months, without any requirements as to volume, manner of sale, availability of current public information or notice under the Securities Act (except that, during the six (6) month period beginning on, and including, the date that is six (6) months after
the Last Original Issue Date of such Note, any such requirement as to the availability of current public information will be disregarded if the same is satisfied at that time), and such Note (x) is not identified by a “restricted” CUSIP or ISIN number; and (y) is not represented by any certificate that bears a restricted note legend.
“Fundamental Change” means any of the following events:
(A) a “person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Parent or its Wholly Owned Subsidiaries, or their respective employee benefit plans, files any report with the SEC indicating that such person or group has become the direct or indirect “beneficial owner” (as defined below) of shares of the Parent’s common equity representing more than fifty percent (50%) of the voting power of all of the Parent’s then-outstanding common equity; provided, however, that, for these purposes, no “person” or “group” will be deemed to be the beneficial owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of such “person” or “group” until such tendered securities are accepted for purchase or exchange under such offer:
(B) the consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all of the assets of the Parent and its Subsidiaries, taken as a whole, to any Person, other than solely to one or more of the Parent’s Wholly Owned Subsidiaries; or (ii) any transaction or series of related transactions in connection with which (whether by means of merger, consolidation,: share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all of the Ordinary Shares are exchanged for, converted into, acquired for, or constitutes solely the right to receive, other securities, cash or other property (other than changes resulting solely from a subdivision or combination, or a change in par value, of the Ordinary Shares); provided, however, that any merger, consolidation, share exchange or combination of the Parent pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined below) all classes of the Parent’s common equity immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-a-vis each other as immediately before such transaction will be deemed not to be a Fundamental Change pursuant to this clause (B);
(C) the Parent’s shareholders approve any plan or proposal for the liquidation or dissolution of the Parent; or
(D) the Ordinary Shares cease to be listed on any Permitted Exchange;
provided, however, that a transaction or event described in clause (A) or (B) above will not constitute a Fundamental Change if at least ninety percent (90%) of the consideration received or to be received by the holders of Ordinary Shares (excluding cash payments for fractional shares or pursuant to dissenters rights), in connection with such transaction or event, consists of shares of common stock or ordinary shares listed (or depositary receipts representing shares of common stock or ordinary shares, which depositary receipts are listed) on any Permitted Exchange, or that will be so listed when issued or exchanged in connection with such transaction or event, and such transaction or event constitutes an Ordinary Share Change Event whose Reference Property
consists of such consideration.
Notwithstanding the foregoing, (i) the transactions contemplated by the Plan (including the establishment of a holding company above the Parent) shall not be deemed, individually or in the aggregate, to constitute a Fundamental Change and (ii) a Fundamental Change shall not be deemed to occur pursuant to clause (A) or (B) above if (x) Parent becomes a direct or indirect wholly-owned subsidiary of a holding company or a holding company becomes the successor to Parent under Section 6.02 pursuant to a transaction that is permitted under Section 6.01 of the Indenture and (y) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction (or a series of related transactions) are substantially the same (and hold in the same proportions) as the holders of Parent’s Voting Stock immediately prior to that transaction. “Voting Stock” means, with respect to any specified Person as of any date, the capital stock of such Person that is at the time entitled to vote generally in the election of the board of directors of such Person.
For purposes of clause (A) of the definition of Fundamental Change, no Fundamental Change shall be deemed to occur as a result of any of Athyrium Capital Management, LP or its affiliates or Highbridge MSF International Ltd., 1992 Tactical Credit Master Fund, L.P. or Highbridge SCF Special Situations SPV, L.P., or their respective affiliates, or any combination of the foregoing persons, becoming the “beneficial owner” of more than 50% of the voting power of all of the Parent’s then-outstanding common equity.
For the purposes of this definition, (x) any transaction or event described in both clause (A) and in clause (B)(i) or (ii) above (without regard to the proviso in clause (B)) will be deemed to occur solely pursuant to clause (B) above (subject to such proviso); and (y) whether a Person is a “beneficial owner” and whether shares are “beneficially owned” will be determined in accordance with Rule 13d-3 under the Exchange Act.
“Fundamental Change Repurchase Date” means the date fixed for the repurchase of any Notes by the Company pursuant to Section 4.02(C).
“Fundamental Change Repurchase Notice” means a notice (including a notice substantially in the form of the “Fundamental Change Repurchase Notice” set forth in Exhibit A) containing the information, or otherwise complying with the requirements, set forth in Section 4.02(F)(i) and Section 4.02(F)(ii).
“Fundamental Change Repurchase Price” means the cash price payable by the Company to repurchase any Note upon its Repurchase Upon Fundamental Change, calculated pursuant to Section 4.02(D).
“Global Note” means a Note that is represented by a certificate substantially in the form set forth in Exhibit A, registered in the name of the Depositary or its nominee and bearing the Global Note Legend, duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee, as custodian for the Depositary.
“Global Note Legend” means a legend substantially in the form set forth in Exhibit B.
“Guarantee” means the guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes pursuant to Article 9.
“Guarantor” means the Persons named as such in the first paragraph of this Indenture, each other Person that becomes a Guarantor by executing an amended or supplemental indenture pursuant to Sections 8.01(B) and 9.03 and, subject to Section 9.04, the successors and assigns of the foregoing.
“Holder” means a person in whose name a Note is registered on the Registrar’s books.
“IAI Global Note” means a Global Note bearing the Private Placement Legend, duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee, as custodian for the Depositary, and initially issued to Institutional Accredited Investors.
“IFRS” means International Financial Reporting Standards, as in effect from time to time.
“Immaterial Subsidiaries” has the meaning set forth in the Senior Secured Credit Facility.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) accounts payable and other accrued liabilities incurred in the ordinary course of business not past due for more than one hundred twenty (120) days after its stated due date (except for accounts payable contested in good faith), (ii) any earn out obligation until such obligation is both required to be reflected as a liability on the balance sheet of such Person in accordance with IFRS and not paid after becoming due and payable, (iii) deferred or equity compensation arrangements entered into in the ordinary course of business and payable to directors, officers or employees) and (iv) milestone payments due to Software AG Stiftung in connection with Birkin AG in an aggregate amount not to exceed 38,000,000 Euros which shall be payable solely on the basis of the criteria disclosed pursuant to the Senior Secured Credit Facility prior to the Issue Date), (e) all Indebtedness (excluding prepaid interest thereon) of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed but, in the case of Indebtedness which is not assumed by such Person, limited to the lesser of (x) the amount of such Indebtedness and (y) the fair market value of such property, (f) all guarantees by such Person of Indebtedness of others, (g) all Attributable Indebtedness of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty (excluding the portion thereof that has been fully cash collateralized in a manner permitted by the Senior Secured Credit Facility), (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, surety bonds and performance bonds, whether or not matured and (j) all obligations of such Person in
respect of Disqualified Equity Interests. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is directly liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Anything herein to the contrary notwithstanding, obligations in respect of any Indebtedness that has been irrevocably defeased (either covenant or legal) or satisfied and discharged pursuant to the terms of the instrument creating or governing such Indebtedness shall not constitute Indebtedness.
“Indenture” means this Indenture, as amended or supplemented from time to time.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
“Intellectual Property” has the meaning set forth in the Senior Secured Credit Facility.
“Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended.
“Investment” in any Person, means any loan or advance to such Person, any purchase or other acquisition of any voting Equity Interests or other Equity Interests or Indebtedness or the assets comprising a division or business unit or a substantial part or all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person.
“Investors” means existing unsecured creditors of the Company, other than the Department of Justice and other governmental entities and trade creditors, allocated (a) on a pro rata basis based on the respective principal or face amount of the respective unsecured claims and (b) dollar for dollar in the case of the existing $22.5 million roll up loans under the Company’s secured bridge financing that was funded in November 2018 (plus accrued fees and interest thereon, estimated to be approximately $500,000) and any amounts funded under the debtor-in-possession financing upon the emergence of the Company’s bankruptcy case that are not paid in full in cash on the Plan effective date.
“Interest Payment Date” means, with respect to a Note, each April 1 and October 1 of each year, commencing on April 1, 2020 (or commencing on such other date specified in the certificate representing such Note). For the avoidance of doubt the Maturity Date is an Interest Payment Date.
“Issue Date” means September 24, 2019.
“Last Original Issue Date” means (A) with respect to any Notes issued pursuant to the Plan, and any Notes issued in exchange therefor or in substitution thereof, the Issue Date and (B)
with respect to any Notes issued pursuant to Section 2.03(B), and any Notes issued in exchange therefor or in substitution thereof, either (i) the date such Notes are originally issued or (ii) such other date as is specified in an Officer’s Certificate delivered to the Trustee before the original issuance of such Notes.
“Last Reported Sale Price” of the Ordinary Shares for any Trading Day means the closing sale price per share (or, if no closing sale price is reported, the average of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last bid prices and the average last ask prices per share) of the Ordinary Shares on such Trading Day as reported in composite transactions for the Relevant Stock Exchange. If the Last Reported Sale Price cannot be determined pursuant to the previous sentence, then the Last Reported Sale Price will be the average of the mid-point of the last bid price and the last ask price per Ordinary Share on such Trading Day from each of at least three (3) nationally recognized independent investment banking firms selected by the Company, which may include any of the Investors. Neither the Trustee nor the Conversion Agent will have any duty to determine the Last Reported Sale Price. The Last Reported Sale Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session. The Last Reported Sale Price for any Trading Day will be expressed in U.S. dollars and, if expressed in a different currency for such Trading Day as determined above (which, for the avoidance of doubt, will be the case at the time the Notes are initially issued), will be translated to U.S. dollars at the Prevailing Exchange Rate on such Trading Day.
“Make-Whole Fundamental Change” means (A) a Fundamental Change (determined after giving effect to the proviso immediately after clause (D) of the definition thereof, but without regard to the proviso to clause (B)(ii) of the definition thereof); or (B) the sending of a Redemption Notice pursuant to Section 4.03(G); provided, however, that the sending of a Redemption Notice will constitute a Make-Whole Fundamental Change only with respect to the Notes called for Redemption pursuant to such Redemption Notice and not with respect to any other Notes.
“Make-Whole Fundamental Change Conversion Period” has the following meaning:
(A) in the case of a Make-Whole Fundamental Change pursuant to clause (A) of the definition thereof, the period from, and including, the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change to, and including, the thirty fifth (35th) Trading Day after such Make-Whole Fundamental Change Effective Date (or, if such Make-Whole Fundamental Change also constitutes a Fundamental Change, to, but excluding, the related Fundamental Change Repurchase Date); and
(B) in the case of a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof, the period from, and including, the Redemption Notice Date for the related Redemption, to, and including, the Business Day immediately before the related Redemption Date;
provided, however, that if the Conversion Date for the conversion of a Note occurs during the Make-Whole Fundamental Change Conversion Period for both a Make-Whole Fundamental Change occurring pursuant to clause (A) of the definition of “Make-Whole Fundamental
Change” and a Make-Whole Fundamental Change occurring pursuant to clause (B) of such definition, then, notwithstanding anything to the contrary in Section 5.07, solely for purposes of such conversion, (x) such Conversion Date will be deemed to occur solely during the Make-Whole Fundamental Change Conversion Period for the Make-Whole Fundamental Change with the earlier Make-Whole Fundamental Change Effective Date; and (y) the Make-Whole Fundamental Change with the later Make-Whole Fundamental Change Effective Date will be deemed not to have occurred (unless the converting Holder notifies the Company to the contrary concurrently on the Conversion Date); provided, further, that if a Holder provides a notice of waiver of the provisions set forth in Section 5.08(A) during any Make-Whole Fundamental Change Conversion Period, such notice shall constitute a Conversion Date occurring during such Make-Whole Fundamental Change Conversion Period and the Company will deliver the relevant Conversion Consideration following the completion of the 61 calendar day notice period.
“Make-Whole Fundamental Change Effective Date” means (A) with respect to a Make-Whole Fundamental Change pursuant to clause (A) of the definition thereof, the date on which such Make-Whole Fundamental Change occurs or becomes effective; and (B) with respect to a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof, the applicable Redemption Notice Date.
“Market Disruption Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such date on the Relevant Stock Exchange, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Ordinary Shares or in any options contracts or futures contracts relating to the Ordinary Shares.
“Maturity Date” means April 1, 2025.
“Nasdaq” means the NASDAQ Global Market or The NASDAQ Global Select Market (or any of their respective successors).
“Net Cash Proceeds” means:
(A) with respect to the Disposition of any asset by the Company or any Guarantor or any of their Subsidiaries the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (w) the principal amount of any Indebtedness permitted by this Indenture that is secured by a lien on the asset subject to such Disposition and that is repaid (and is timely repaid) in connection therewith (other than the Notes), (x) the reasonable out of pocket expenses actually incurred and paid by the Parent or any of its Subsidiaries in connection with such Disposition (including, reasonable attorney’s, accountant’s and other similar professional advisor’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant or other customary fees) to third parties (other than the Company, the Guarantors or any of their respective Affiliates), (y)
taxes paid or reasonably estimated to be actually payable or that are actually accrued in connection therewith with respect to the current tax year as a result of any gain recognized in connection therewith by such Person or any of the direct or indirect stockholders thereof and attributable to such Disposition; provided that, if the amount of any estimated taxes pursuant to this subclause (y) exceeds the amount of taxes actually required to be paid in cash, the aggregate amount of such excess shall constitute Net Cash Proceeds and (z) any reasonable reserve actually maintained in respect of (1) the sale price of such asset or assets established in accordance with IFRS, and (2) any liabilities associated with such asset or assets and retained by the Parent or any of its Subsidiaries after such sale or other Disposition thereof, including pension and other post employment benefit liabilities and liabilities related against any indemnification obligations associated with such transaction and it being understood that “Net Cash Proceeds” shall include any cash or Cash Equivalents (a) received upon the Disposition of any non cash consideration received by such Person in any such Disposition, and (b) received upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in subclause (z) above or, if such liabilities have not been satisfied in cash and such reserve not reversed within two (2) years after such Disposition, the amount of such reserve; and
(B) with respect to the incurrence or issuance of any Indebtedness by the Company, the Guarantors or any of their respective Subsidiaries not permitted under Section 3.13, the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance over (ii) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses and other customary expenses (including reasonable attorney’s, accountant’s and other similar professional advisor’s fees), incurred by such Person in connection with such incurrence or issuance to third parties (other than the Company, the Guarantors or any of their respective Affiliates).
“Note Agent” means any Registrar, Paying Agent or Conversion Agent.
“Notes” means the 5.00% Convertible Senior Notes due 2025 issued by the Company pursuant to this Indenture.
“Observation Period” means, with respect to any Note to be converted, (A) subject to clause (B) below, if the Conversion Date for such Note occurs on or before the twenty-fifth (25th) Scheduled Trading Day immediately before the Maturity Date, the twenty (20) consecutive VWAP Trading Days beginning on, and including, the third (3rd) VWAP Trading Day immediately after such Conversion Date; (B) if such Conversion Date occurs on or after the date the Company has sent a Redemption Notice calling such Note for Redemption pursuant to Section 4.03(G) and before the related Redemption Date, the twenty (20) consecutive VWAP Trading Days beginning on, and including, the twenty-first (21st) Scheduled Trading Day immediately before such Redemption Date; and (C) subject to clause (B) above, if such Conversion Date occurs after the twenty-fifth (25th) Scheduled Trading Day immediately before the Maturity Date, the twenty (20) consecutive VWAP Trading Days beginning on, and including, the twenty-first (21st) Scheduled Trading Day immediately before the Maturity Date.
“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of the Company; provided, that in the case of an Officer’s Certificate delivered pursuant to Section 3.05, Officer shall mean the Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer.
“Officer’s Certificate” means a certificate that is signed on behalf of the Company by one (1) of its Officers and that meets the requirements of Section 12.03.
“Open of Business” means 9:00 a.m., New York City time.
“Opinion of Counsel” means an opinion, from legal counsel (including an employee of, or counsel to, the Company or any of its Subsidiaries) reasonably acceptable to the Trustee, that meets the requirements of Section 12.03, subject to customary qualifications and exclusions.
“Ordinary Shares” means the ordinary shares of the Parent, subject to Section 5.09.
“Parent” means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and assigns.
“Parent Board” means the board of directors of Parent or a committee of such board duly authorized to act on behalf of such board.
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
“Permitted Exchange” means the London Stock Exchange’s AIM Market, the Irish Stock Exchange’s Euronext Growth Market, The New York Stock Exchange or Nasdaq (or any of their respective successors).
“Person” or “person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof. Any division or series of a limited liability company, limited partnership or trust will constitute a separate “person” under this Indenture.
“Physical Note” means a Note (other than a Global Note) that is represented by a certificate substantially in the form set forth in Exhibit A, registered in the name of the Holder of such Note and duly executed by the Company and authenticated by the Trustee.
“Plan” means the plan of reorganization filed with respect to the Company’s Chapter 11 bankruptcy case and confirmed by a final order.
“Prevailing Exchange Rate” means, for purposes of translating, as of any date, any amount in non-U.S. currency to U.S. dollars, the spot mid rate of exchange between such currencies prevailing as of 9am, New York City time, on such date, as displayed on, or derived
from, Bloomberg page “BFIX” (or, if such page is not available, its equivalent successor page) in respect of such currencies. If such rate cannot be determined as provided in the immediately preceding sentence on such date (which, for the purpose of this definition, will be deemed to be the “Affected Day”), then the Prevailing Exchange Rate for such date will be determined mutatis mutandis but with respect to the immediately preceding day on which such rate can be so determined; provided, however, that, if such immediately preceding day is before the fifth day before such Affected Day, or, if such rate cannot be so determined, then the Prevailing Exchange Rate will be determined in such other manner as prescribed in good faith by an independent advisor.
“Private Placement Legend” means a legend substantially in the form set forth in Exhibit C.
“Redemption” means the repurchase of any Note by the Company pursuant to Section 4.03.
“Redemption Date” means the date fixed for the repurchase of any Notes by the Company pursuant to a Redemption.
“Redemption Notice Date” means, with respect to a Redemption, the date on which the Company sends the Redemption Notice for such Redemption pursuant to Section 4.03.
“Redemption Price” means the cash price payable by the Company to redeem any Note upon its Redemption, calculated pursuant to Section 4.03(F).
“Refinancing Indebtedness” has the meaning set forth in the Senior Secured Credit Facility.
“Regular Record Date” has the following meaning with respect to an Interest Payment Date: (A) if such Interest Payment Date occurs on April 1, the immediately preceding March 16; and (B) if such Interest Payment Date occurs on October 1, the immediately preceding September 16.
“Relevant Stock Exchange” means (i) the London Stock Exchange’s AIM Market, or (ii) if the Ordinary Shares are not then listed on the London Stock Exchange’s AIM Market, the principal exchange or other market on which the Ordinary Shares are then listed or admitted for trading (and, in the case of this clause (ii), the identity of the Relevant Stock Exchange will be determined in good faith by the Board of Directors); provided that if the Ordinary Shares or American Depositary Receipts representing Ordinary Shares (“ADRs”) are at any time listed on Nasdaq, references to the London Stock Exchange’s AIM Market in this definition shall be deemed to be replaced with Nasdaq unless, as of any relevant date of determination, the aggregate share trading volume of the Ordinary Shares for the preceding twenty (20) Trading Days on the London Stock Exchange’s AIM Market exceeds that on Nasdaq. For the avoidance of doubt, in any case where this definition would result in a reference to or computation based on ADRs, the relevant reference or computation will be appropriately adjusted to reflect the relevant ADR exchange ratio relative to the Ordinary Shares.
“Repurchase Upon Fundamental Change” means the repurchase of any Note by the Company pursuant to Section 4.02.
“Responsible Officer” means (A) any vice president, assistant vice president, any trust officer or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and (B) with respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Payment” means any:
(A) dividend or other distribution (whether in cash, securities or other property) or any payment (whether in cash, securities or other property), in each case, with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, including any sinking fund or similar deposit, on account of the purchase, retraction, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof and including any thereof acquired through the exercise of warrants or rights of conversion, exchange or purchase); and
(B) payment of any management or similar type fees by the Company or any Guarantors to any parent Affiliate thereof that is not a Guarantor.
“Rule 144” means Rule 144 under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.
“Sale Leaseback” means any transaction or series of related transactions pursuant to which the Parent or any of its Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.
“Scheduled Trading Day” means any day that is scheduled to be a Trading Day on the Relevant Stock Exchange. If the Ordinary Shares are not so listed or traded, then “Scheduled Trading Day” means a Business Day.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Security” means any Note or Conversion Share.
“Senior Secured Credit Facility” means the Credit Agreement, dated as of September
24, 2019, among the Company, Old Parent, the lenders party thereto and Xxxxxx Xxxxxxxxxx Securities, as administrative agent.
“Settlement Method” means Cash Settlement, Physical Settlement or Combination Settlement.
“Significant Subsidiary” means, with respect to any Person, any Subsidiary of such Person that constitutes a “significant subsidiary” (as defined in Rule l-02(w) of Regulation S-X under the Exchange Act) of such Person.
“Special Interest” means any interest that accrues on any Note pursuant to Section 7.03.
“Specified Dollar Amount” means, with respect to the conversion of a Note to which Combination Settlement applies, the maximum cash amount per $1,000 principal amount of such Note deliverable upon such conversion (excluding cash in lieu of any fractional Ordinary Share), as determined by the Company in U.S. dollars.
“Share Price” has the following meaning for any Make-Whole Fundamental Change: (A) if the holders of Ordinary Shares receive only cash in consideration for their Ordinary Shares in such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is pursuant to clause (B) of the definition of “Fundamental Change,” then the Share Price is the amount of cash paid per Ordinary Share in such Make-Whole Fundamental Change; and (B) in all other cases, the Share Price is the average of the Last Reported Sale Prices per Ordinary Share for the five (5) consecutive Trading Days ending on, and including, the Trading Day immediately before the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change.
“Subsidiary” means, with respect to any Person, (A) any corporation, association or other business entity (other than a partnership or limited liability company) of which more than fifty percent (50%) of the total voting power of the Capital Stock entitled (without regard to the occurrence of any contingency, but after giving effect to any voting agreement or shareholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or other business entity is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person; and (B) any partnership or limited liability company where (i) more than fifty percent (50%) of the capital accounts, distribution rights, equity and voting interests, or of the general and limited partnership interests, as applicable, of such partnership or limited liability company are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person, whether in the form of membership, general, special or limited partnership or limited liability company interests or otherwise; and (ii) such Person or any one or more of the other Subsidiaries of such Person is a controlling general partner of, or otherwise controls, such partnership or limited liability company.
“Tax” means any tax, duty, levy, impost, assessment or other governmental charge (including penalties and interest and other similar liabilities related thereto).
“Tax Redemption” means the Redemption of any Note pursuant to Section 4.03(C).
“Trading Day” means any day on which (A) there is no Market Disruption Event; and (B) trading in the Ordinary Shares generally occurs on the Relevant Stock Exchange. If the Ordinary Shares are not so listed or traded, then “Trading Day” means a Business Day.
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended.
“Trustee” means the Person named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions of this Indenture and, thereafter, means such successor.
“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.
“VWAP Market Disruption Event” means, with respect to any date, (A) the failure by the Relevant Stock Exchange to open for trading during its regular trading session on such date; or (B) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the Relevant Stock Exchange or otherwise) in the Ordinary Shares or in any options contracts or futures contracts relating to the Ordinary Shares, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.
“VWAP Trading Day” means a day on which (A) there is no VWAP Market Disruption Event; and (B) trading in the Ordinary Shares generally occurs on the Relevant Stock Exchange. If the Ordinary Shares are not so listed or traded, then “VWAP Trading Day” means a Business Day.
“Wholly Owned Subsidiary” of a Person means any Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) are owned by such Person or one or more Wholly Owned Subsidiaries of such Person.
Section 1.02. Other Definitions.
Term | Defined in Section |
|
“Additional Amounts” | 3.04(A) | |
“Additional Shares” | 5.07(A) | |
“Business Combination Event” | 6.01(A) | |
“Cash Settlement” | 5.03(A) | |
“Combination Settlement” | 5.03(A) | |
“Conversion Agent” | 2.06(A) | |
“Conversion Consideration” | 5.03(B) | |
“Default Interest” | 2.05(B) | |
“Defaulted Amount” | 2.05(B) | |
“Event of Default” | 7.01(A) |
“Expiration Date” | 5.05(A)(v) | |
“Expiration Time” | 5.05(A)(v) | |
“FATCA” | 3.04(A)(iv) | |
“Fundamental Change Notice” | 4.02(E) | |
“Fundamental Change Repurchase Right” | 4.02(A) | |
“Guaranteed Obligations” | 9.01(A) | |
“Guarantor Business Combination Event” | 9.04(A) | |
“Initial Notes” | 2.03(A) | |
“Junior Indebtedness” | 3.13(C) | |
“Ordinary Share Change Event” | 5.09(A) | |
“Paying Agent” | 2.06(A) | |
“Physical Settlement” | 5.03(A) | |
“Redemption Notice” | 4.03(G) | |
“Reference Property” | 5.09(A) | |
“Reference Property Unit” | 5.09(A) | |
“Register | 2.06(B) | |
“Registrar” | 2.06(A) | |
“Relevant Taxing Jurisdiction” | 3.04(A) | |
“Reporting Event of Default” | 7.03(A) | |
“Specified Courts” | 12.07 | |
“Spin-Off | 5.05(A)(iii)(2) | |
“Spin-Off Valuation Period” | 5.05(A)(iii)(2) | |
“Stated Interest” | 2.05(A) | |
“Successor Corporation” | 6.01(A) | |
“Successor Person” | 5.09(A) | |
“Tax Redemption Opt-Out Election” | 4.03(C)(ii) | |
“Tax Redemption Opt-Out Election Notice” | 4.03(C)(ii)(l) | |
“Tender/Exchange Offer Valuation Period” | 5.05(A)(v) | |
“Transfer Taxes” | 3.04(B) |
Section 1.03. Rules of Construction.
For purposes of this Indenture:
(A) “or” is not exclusive;
(B) “including” means “including without limitation”;
(C) “will” expresses a command;
(D) the “average” of a set of numerical values refers to the arithmetic average of such numerical values;
(E) a merger involving, or a transfer of assets by, a limited liability company, limited partnership or trust will be deemed to include any division of or by, or an allocation of assets to a series of, such limited liability company, limited partnership or trust, or any unwinding of any such division or allocation;
(F) words in the singular include the plural and in the plural include the singular, unless the context requires otherwise;
(G) “herein,” “hereof’’ and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture, unless the context requires otherwise;
(H) references to currency mean the lawful currency of the United States of America, unless the context requires otherwise;
(I) the exhibits, schedules and other attachments to this Indenture are deemed to form part of this Indenture; and
(J) the term “interest,” when used with respect to a Note, includes any Additional Interest and Special Interest, unless the context requires otherwise.
For purposes of this Indenture, the following terms of the Trust Indenture Act have the following meanings:
(i) “Commission” means the SEC;
(ii) “indenture securities” means the Notes;
(iii) “indenture security holder” means a Holder;
(iv) “indenture to be qualified” means this Indenture;
(v) “indenture trustee” or “institutional trustee” means the Trustee; and
(vi) “obligor” on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the Trust Indenture Act (including by reference to another statute) or the related rules of the SEC, and not defined in this Indenture, have the respective meanings so defined by the Trust Indenture Act or such rules.
Article 2. THE NOTES
Section 2.01. Form, Dating and Denominations.
The Notes and the Trustee’s certificate of authentication will be substantially in the form set forth in Exhibit A. The Notes will bear the legends required by Section 2.09 and may bear notations, legends or endorsements required by law, stock exchange rule or usage or the Depositary. Each Note will be dated as of the date of its authentication.
Except to the extent otherwise provided in a Company Order delivered to the Trustee in connection with the issuance and authentication thereof, the Notes will be issued initially in the form of one or more Global Notes. Global Notes may be exchanged for Physical Notes, and
Physical Notes may be exchanged for Global Notes, only as provided in Section 2.10.
The Notes will be issuable only in registered form without interest coupons and only in Authorized Denominations.
Each certificate representing a Note will bear a unique registration number that is not affixed to any other certificate representing another outstanding Note.
The terms contained in the Notes constitute part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, agree to such terms and to be bound thereby; provided, however, that, to the extent that any provision of any Note conflicts with the provisions of this Indenture, the provisions of this Indenture will control for purposes of this Indenture and such Note.
Section 2.02. Execution, Authentication and Delivery.
(A) Due Execution by the Company. At least one (1) duly authorized Officer will sign the Notes on behalf of the Company by manual or facsimile signature. A Note’s validity will not be affected by the failure of any Officer whose signature is on any Note to hold, at the time such Note is authenticated, the same or any other office at the Company.
(B) Authentication by the Trustee and Delivery.
(i) No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.
(ii) The Trustee will cause an authorized signatory of the Trustee (or a duly appointed authenticating agent) to manually sign the certificate of authentication of a Note only if (1) the Company delivers such Note to the Trustee; (2) such Note is executed by the Company in accordance with Section 2.02(A); and (3) the Company delivers a Company Order to the Trustee that (a) requests the Trustee to authenticate such Note; and (b) sets forth the name of the Holder of such Note and the date as of which such Note is to be authenticated. If such Company Order also requests the Trustee to deliver such Note to any Holder or to the Depositary, then the Trustee will promptly deliver such Note in accordance with such Company Order.
(iii) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. A duly appointed authenticating agent may authenticate Notes whenever the Trustee may do so under this Indenture, and a Note authenticated as provided in this Indenture by such an agent will be deemed, for purposes of this Indenture, to be authenticated by the Trustee. Each duly appointed authenticating agent will have the same rights to deal with the Company as the Trustee would have if it were performing the duties that the authentication agent was validly appointed to undertake.
Section 2.03. Initial Notes and Additional Notes.
(A) Initial Notes. On the Issue Date, there will be originally issued one hundred twenty four million nine hundred ninety-nine thousand nine hundred ninety-seven dollars ($124,999,999) aggregate principal amount of Notes, subject to the provisions of this Indenture (including Section 2.02). Notes issued pursuant to this Section 2.03(A), and any Notes issued in exchange therefor or in substitution thereof, are referred to in this Indenture as the “Initial Notes.”
(B) Additional Notes. The Company may, subject to the provisions of this Indenture (including Section 2.02), originally issue additional Notes with the same terms as the initial Notes (except, to the extent applicable, with respect to the date as of which interest begins to accrue on such additional Notes and the first Interest Payment Date and the Last Original Issue Date of such additional Notes), which additional Notes will, subject to the foregoing, be considered to be part of the same series of, and rank equally and ratably with all other, Notes issued under this Indenture; provided, however, that if any such additional Notes are not fungible with other Notes issued under this Indenture for federal income tax or federal securities laws purposes, then such additional Notes will be identified by a separate CUSIP number or by no CUSIP number.
Section 2.04. Method of Payment.
(A) Global Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration for, any Global Note to the Depositary by wire transfer of immediately available funds no later than the time the same is due as provided in this Indenture.
(B) Physical Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration for, any Physical Note no later than the time the same is due as provided in this Indenture as follows: (i) if the principal amount of such Physical Note is at least five million dollars ($5,000,000) (or such lower amount as the Company may choose in its sole and absolute discretion) and the Holder of such Physical Note entitled to such payment has delivered to the Paying Agent or the Trustee, no later than the time set forth in the immediately following sentence, a written request that the Company make such payment by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available funds to such account; and (ii) in all other cases, by check mailed to the address of the Holder of such Physical Note entitled to such payment as set forth in the Register. To be timely, such written request must be so delivered no later than the Close of Business on the following date: (x) with respect to the payment of any interest due on an Interest Payment Date, the immediately preceding Regular Record Date; (y) with respect to any cash Conversion Consideration, the relevant Conversion Date; and (z) with respect to any other payment, the date that is fifteen (15) calendar days immediately before the date such payment is due.
Section 2.05. Accrual of Interest; Defaulted Amounts; When Payment Date is Not a Business Day.
(A) Accrual of Interest. Each Note will accrue interest at a rate per annum equal to 5.00% (the “Stated Interest”), plus any Additional Interest and Special Interest that may accrue pursuant to Sections 3.03 and 7.03, respectively. Stated Interest on each Note will (i) accrue from, and including, the most recent date to which Stated Interest has been paid or duly provided for (or, if no Stated Interest has theretofore been paid or duly provided for, the date set forth in the certificate representing such Note as the date from, and including, which Stated Interest will begin to accrue in such circumstance) to, but excluding, the date of payment of such Stated Interest; and (ii) be, subject to Sections 4.02(D), 4.03(F) and 5.02(D) (but without duplication of any payment of interest), payable semi-annually in arrears on each Interest Payment Date, beginning on the first Interest Payment Date set forth in the certificate representing such Note, to the Holder of such Note as of the Close of Business on the immediately preceding Regular Record Date. Stated Interest, and, if applicable, Additional Interest and Special Interest, on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.
(B) Defaulted Amounts. If the Company fails to pay any amount (a “Defaulted Amount”) payable on a Note on or before the due date therefor as provided in this Indenture, then, regardless of whether such failure constitutes an Event of Default, (i) such Defaulted Amount will forthwith cease to be payable to the Holder of such Note otherwise entitled to such payment; (ii) to the extent lawful, interest (“Default Interest”) will accrue on such Defaulted Amount at a rate per annum equal to the rate per annum at which Stated Interest accrues, from, and including, such due date to, but excluding, the date of payment of such Defaulted Amount and Default Interest; (iii) such Defaulted Amount and Default Interest will be paid on a payment date selected by the Company to the Holder of such Note as of the Close of Business on a special record date selected by the Company, provided that such special record date must be no more than fifteen (15), nor less than ten (10), calendar days before such payment date; and (iv) at least fifteen (15) calendar days before such special record date, the Company will send notice to the Trustee and the Holders that states such special record date, such payment date and the amount of such Defaulted Amount and Default Interest to be paid on such payment date.
(C) Delay of Payment when Payment Date is Not a Business Day. If the due date for a payment on a Note as provided in this Indenture is not a Business Day, then, notwithstanding anything to the contrary in this Indenture or the Notes, such payment may be made on the immediately following Business Day and no interest will accrue on such payment as a result of the related delay. Solely for purposes of the immediately preceding sentence, a day on which the applicable place of payment is authorized or required by law or executive order to close or be closed will be deemed not to be a “Business Day.”
Section 2.06. Registrar, Paying Agent and Conversion Agent.
(A) Generally. The Company will maintain (i) an office or agency in the continental United States where Notes may be presented for registration of transfer or for exchange (the “Registrar”); (ii) an office or agency in the continental United States where Notes may be presented for payment (the “Paying Agent”); and (iii) an office or agency in the continental United States where Notes may be presented for conversion (the “Conversion Agent”). If the
Company fails to maintain a Registrar, Paying Agent or Conversion Agent, then the Trustee will act as such. For the avoidance of doubt, the Company or any of its Subsidiaries may act as Registrar, Paying Agent or Conversion Agent.
(B) Duties of the Registrar. The Registrar will keep a record (the “Register”) of the names and addresses of the Holders, the Notes held by each Holder and the transfer, exchange, repurchase, Redemption and conversion of Notes. Absent manifest error, the entries in the Register will be conclusive and the Company and the Trustee may treat each Person whose name is recorded as a Holder in the Register as a Holder for all purposes. The Register will be in written form or in any form capable of being converted into written form reasonably promptly.
(C) Co-Agents; Company’s Right to Appoint Successor Registrars, Paying Agents and Conversion Agents. The Company may appoint one or more co-Registrars, co-Paying Agents and co-Conversion Agents, each of whom will be deemed to be a Registrar, Paying Agent or Conversion Agent, as applicable, under this Indenture. Subject to Section 2.06(A), the Company may change any Registrar, Paying Agent or Conversion Agent (including appointing itself or any of its Subsidiaries to act in such capacity) without notice to any Holder. The Company will notify the Trustee (and, upon request, any Holder) of the name and address of each Note Agent, if any, not a party to this Indenture and will enter into an appropriate agency agreement with each such Note Agent, which agreement will implement the provisions of this Indenture that relate to such Note Agent.
(D) Initial Appointments. The Company appoints the Trustee as the initial Paying Agent, the initial Registrar and the initial Conversion Agent.
Section 2.07. Paying Agent and Conversion Agent to Hold Property in Trust.
The Company will require each Paying Agent or Conversion Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold in trust for the benefit of Holders or the Trustee all money and other property held by such Note Agent for payment or delivery due on the Notes; and (B) notify the Trustee of any default by the Company in making any such payment or delivery. The Company, at any time, may, and the Trustee, while any Default continues, may, require a Paying Agent or Conversion Agent to pay or deliver, as applicable, all money and other property held by it to the Trustee, after which payment or delivery, as applicable, such Note Agent (if not the Company or any of its Subsidiaries) will have no further liability for such money or property. If the Company or any of its Subsidiaries acts as Paying Agent or Conversion Agent, then (A) it will segregate and hold in a separate trust fund for the benefit of the Holders or the Trustee all money and other property held by it as Paying Agent or Conversion Agent; and (B) references in this Indenture or the Notes to the Paying Agent or Conversion Agent holding cash, or other property, or to the delivery of cash or other property to the Paying Agent or Conversion Agent, in each case for payment or delivery to any Holders or the Trustee or with respect to the Notes, will be deemed to refer to cash or other property so segregated and held separately, or to the segregation and separate holding of such cash or other property, respectively. Upon the occurrence of any event pursuant to in clause (ix) or (x) of Section 7.01(A) with respect to the Company (or with respect to any Subsidiary of the Company acting as Paying Agent or Conversion Agent), the Trustee will serve as the Paying Agent or
Conversion Agent, as applicable, for the Notes.
Section 2.08. Holder Lists.
If the Trustee is not the Registrar, the Company will furnish to the Trustee, no later than seven (7) Business Days before each Interest Payment Date, and at such other times as the Trustee may request, a list, in such form and as of such date or time as the Trustee may reasonably require, of the names and addresses of the Holders.
Section 2.09. Legends.
(A) Global Note Legend. Each Global Note will bear the Global Note Legend (or any similar legend required by the Depositary for such Global Note).
(B) Private Placement Legend. Any Restricted Global Note will bear the Private Placement Legend.
(C) Other Legends. A Note may bear any other legend or text, not inconsistent with this Indenture, as may be required by applicable law or by any securities exchange or automated quotation system on which such Note is traded or quoted.
(D) Acknowledgement and Agreement by the Holders. A Holder’s acceptance of any Note bearing any legend required by this Section 2.09 will constitute such Xxxxxx’s acknowledgement of, and agreement to comply with, the restrictions set forth in such legend.
Section 2.10. Transfers and Exchanges; Certain Transfer Restrictions.
(A) Provisions Applicable to All Transfers and Exchanges.
(i) Subject to this Section 2.10, Physical Notes and beneficial interests in Global Notes may be transferred or exchanged from time to time and the Registrar will record each such transfer or exchange in the Register.
(ii) Each Note issued upon transfer or exchange of any other Note (such other Note being referred to as the “old Note” for purposes of this Section 2.10(A)(ii)) or portion thereof in accordance with this Indenture will be the valid obligation of the Company, evidencing the same indebtedness, and entitled to the same benefits under this Indenture, as such old Note or portion thereof, as applicable.
(iii) The Company, the Guarantors, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange or conversion of Notes, but the Company, the Guarantors, the Trustee, the Registrar and the Conversion Agent may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Notes, other than exchanges pursuant to Sections 2.11, 2.16 or 8.05 not involving any transfer.
(iv) Notwithstanding anything to the contrary in this Indenture or the Notes, a Note may not be transferred or exchanged in part unless the portion to be so transferred or exchanged is in an Authorized Denomination.
(v) The Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any transfer restrictions imposed under this Indenture or applicable law with respect to any Security, other than to require the delivery of such certificates or other documentation or evidence as expressly required by this Indenture and to examine the same to determine substantial compliance as to form with the requirements of this Indenture.
(vi) Each Note issued upon transfer of, or in exchange for, another Note will bear each legend, if any, required by Section 2.09.
(vii) Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Note, the Company will cause such transfer or exchange to be effected as soon as reasonably practicable after the date of such satisfaction.
(B) Transfers and Exchanges of Global Notes.
(i) Subject to the other clauses of this paragraph (B), no Global Note may be transferred or exchanged in whole except (x) by the Depositary to a nominee of the Depositary; (y) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary; or (z) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
(ii) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable, and if applicable either subparagraph (3) or (4) below:
(1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this subsection (1).
(2) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to subsection (1) above, the transferor of such beneficial interest must deliver to the Registrar a written order, through a Participant or an Indirect Participant in the applicable Global Note given to the Depositary in accordance with the Applicable Procedures, instructing the Depositary to credit or cause to be credited a beneficial interest in the applicable Global Note in an amount equal to the beneficial interest to be transferred or exchanged and containing information regarding the Participant account to be credited with such increase.
(3) Transfer of Beneficial Interests from one Restricted Global Note to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of subsection (2) above and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, a certificate from the holder certifying that the exchange or transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act, and that the beneficial interest is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States; and
(B) if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, a certificate from the holder certifying that the exchange or transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in the Restricted Global Note and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and such exchange or transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of subsection (2) above and: (x) such exchange or transfer is effected pursuant to an effective Registration Statement under the Securities Act, or (y) the Registrar receives (A) a certificate from such holder certifying that the exchange or transfer has been effected in compliance with any transfer
restrictions applicable under the Securities Act, that the restrictions on transfer contained in the Private Placement Legend are not required in order to maintain compliance with the Securities Act and that the beneficial interest in the Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States, and (B) if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act.
(iii) No Global Note (or any portion thereof) may be transferred to, or exchanged for, a Physical Note; provided, however, that a Global Note will be exchanged, pursuant to customary procedures, for one or more Physical Notes if:
(1) (x) the Depositary notifies the Company or the Trustee that the Depositary is unwilling or unable to continue as depositary for such Global Note or (y) the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act and, in each case, the Company fails to appoint a successor Depositary within ninety (90) days of such notice or cessation;
(2) an Event of Default has occurred and is continuing and the Company, the Trustee or the Registrar has received a written request from the Depositary, or from a holder of a beneficial interest in such Global Note, to exchange such Global Note or beneficial interest, as applicable, for one or more Physical Notes; or
(3) the Company, in its sole discretion, permits the exchange of any beneficial interest in such Global Note for one or more Physical Notes at the request of the owner of such beneficial interest.
(iv) Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Global Note (or any portion thereof):
(1) the Trustee will reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if such notation results in such Global Note having a principal amount of zero, the Company may (but is not required to) instruct the Trustee to cancel such Global Note pursuant to Section 2.14);
(2) if required to effect such transfer or exchange, then the Trustee will reflect any resulting increase of the principal amount of any other Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such other Global Note;
(3) if required to effect such transfer or exchange, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Global Note bearing each legend, if any, required by Section 2.09; and
(4) if such Global Note (or such portion thereof), or any beneficial
interest therein, is to be exchanged for one or more Physical Notes, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that are in Authorized Denominations (not to exceed, in the aggregate, the principal amount of such Global Note to be so exchanged), are registered in such name(s) as the Depositary specifies (or as otherwise determined pursuant to customary procedures) and bear each legend, if any, required by Section 2.09.
(v) Each transfer or exchange of a beneficial interest in any Global Note will be made in accordance with the Depositary Procedures.
(C) Transfers and Exchanges of Physical Notes.
(i) Subject to this Section 2.10, a Holder of a Physical Note may (x) transfer such Physical Note (or any portion thereof in an Authorized Denomination) to one or more other Person(s); (y) exchange such Physical Note (or any portion thereof in an Authorized Denomination) for one or more other Physical Notes in Authorized Denominations having an aggregate. principal amount equal to the aggregate principal amount of the Physical Note (or portion thereof) to be so exchanged: and (z) if then permitted by the Depositary Procedures, transfer such Physical Note (or any portion thereof in an Authorized Denomination) in exchange for a beneficial interest in one or more Global Notes; provided, however, that, to effect any such transfer or exchange, such Holder must:
(1) surrender such Physical Note to be transferred or exchanged to the office of the Registrar, together with any endorsements or transfer instruments reasonably required by the Company, the Trustee or the Registrar; and
(2) deliver such certificates, documentation or evidence as may be required pursuant to Section 2.10(D).
(ii) Upon the satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Physical Note (such Physical Note being referred to as the “old Physical Note” for purposes of this Section 2.10(C)(ii)) of a Holder (or any portion of such old Physical Note in an Authorized Denomination):
(1) such old Physical Note will be promptly cancelled pursuant to Section 2.14;
(2) if such old Physical Note is to be transferred or exchanged only in part, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such old Physical Note not to be transferred or exchanged; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09;
(3) in the case of a transfer:
(a) to the Depositary or a nominee thereof that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Global Notes, the Trustee will reflect an increase of the principal amount of one or more existing Global Notes by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note(s), which increase(s) are in Authorized Denominations and aggregate to the principal amount to be so transferred, and which Global Note(s) bear each legend, if any, required by Section 2.09; provided, however, that if such transfer cannot be so effected by notation on one or more existing Global Notes (whether because no Global Notes bearing each legend, if any, required by Section 2.09 then exist, because any such increase will result in any Global Note having an aggregate principal amount exceeding the maximum aggregate principal amount permitted by the Depositary or otherwise), then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Global Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; and (y) bear each legend, if any, required by Section 2.09; and
(b) to a transferee that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Physical Notes, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; (y) are registered in the name of such transferee; and (z) bear each legend, if any, required by Section 2.09; and
(4) in the case of an exchange, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so exchanged; (y) are registered in the name of the Person to whom such old Physical Note was registered; and (z) bear each legend, if any, required by Section 2.09.
(D) Requirement of Affiliates to Deliver Documentation and Other Evidence. If a Holder of any Note that is an Affiliate requests to register the transfer of such Note to the name of another Person, then the Company, the Guarantors, the Trustee and the Registrar may refuse to effect such identification, removal or transfer, as applicable, unless there is delivered to the Company, the Guarantors, the Trustee and the Registrar such certificates or other documentation or evidence as the Company, the Guarantors, the Trustee and the Registrar may reasonably require to determine that such transfer complies with the Securities Act and other applicable securities laws.
(E) Transfers of Notes Subject to Redemption, Repurchase or Conversion. Notwithstanding anything to the contrary in this Indenture or the Notes, the Company, the Guarantors, the Trustee and the Registrar will not be required to register the transfer of or exchange any Note that (i) has been surrendered for conversion, except to the extent that any portion of such Note is not subject to conversion; (ii) is subject to a Fundamental Change Repurchase Notice validly delivered, and not withdrawn, pursuant to Section 4.02(F), except to the extent that any portion of such Note is not subject to such notice or the Company fails to pay the applicable Fundamental Change Repurchase Price when due or (iii) has been selected for Redemption pursuant to a Redemption Notice, except to the extent that any portion of such Note is not subject to Redemption or the Company fails to pay the applicable Redemption Price when due.
(F) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.
Section 2.11. Exchange and Cancellation of Notes to Be Converted, Redeemed or Repurchased.
(A) Partial Conversions, Redemptions and Repurchases of Physical Notes. If only a portion of a Physical Note of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption, then, as soon as reasonably practicable after such Physical Note is surrendered for such conversion, Redemption or repurchase, the Company will cause such Physical Note to be exchanged, pursuant and subject to Section 2.10(C), for (i) one or more Physical Notes that are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted, redeemed or repurchased, as applicable, and deliver such Physical Note(s) to such Holder; and (ii) a Physical Note having a principal amount equal to the principal amount to be so converted, redeemed or repurchased, as applicable, which Physical Note will be converted, redeemed or repurchased, as applicable, pursuant to the terms of this Indenture; provided, however, that the Physical Note referred to in this clause (ii) need not be issued at any time after which such principal amount subject to such conversion, Redemption or repurchase, as applicable, is deemed to cease to be outstanding pursuant to Section 2.17.
(B) Cancellation of Converted, Redeemed and Repurchased Notes.
(i) Physical Notes. If a Physical Note (or any portion thereof that has not theretofore been exchanged pursuant to Section 2.11(A)) of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase
Upon Fundamental Change or Redemption, then, promptly after the later of the time such Physical Note (or such portion) is deemed to cease to be outstanding pursuant to Section 2.17 and the time such Physical Note is surrendered for such conversion or repurchase, as applicable, (1) such Physical Note will be cancelled pursuant to Section 2.14; and (2) in the case of a partial conversion, Redemption or repurchase, the Company will issue, execute and deliver to such Holder, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted, redeemed or repurchased; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09.
(ii) Global Notes. If a Global Note (or any portion thereof) is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption, then, promptly after the time such Note (or such portion) is deemed to cease to be outstanding pursuant to Section 2.17, the Trustee will reflect a decrease of the principal amount of such Global Note in an amount equal to the principal amount of such Global Note to be so converted, redeemed or repurchased, as applicable, by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if the principal amount of such Global Note is zero following such notation, cancel such Global Note pursuant to Section 2.14).
Section 2.12. Replacement Notes.
If a Holder of any Note claims that such Note has been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a replacement Note upon surrender to the Trustee of such mutilated Note, or upon delivery to the Trustee of evidence of such loss, destruction or wrongful taking reasonably satisfactory to the Trustee and the Company. In the case of a lost, destroyed or wrongfully taken Note, the Company and the Trustee may require the Holder thereof to provide such security or indemnity that is reasonably satisfactory to the Company and the Trustee to protect the Company and the Trustee from any loss that any of them may suffer if such Note is replaced.
Every replacement Note issued pursuant to this Section 2.12 will be an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and ratably with all other Notes issued under this Indenture.
Section 2.13. Registered Holders; Certain Rights with Respect to Global Notes.
Only the Holder of a Note will have rights under this Indenture as the owner of such Note. Without limiting the generality of the foregoing, Depositary Participants will have no rights as such under this Indenture with respect to any Global Note held on their behalf by the Depositary or its nominee, or by the Trustee as its custodian, and the Company, the Guarantors,
the Trustee and the Note Agents, and their respective agents, may treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever; provided, however, that (A) the Holder of any Global Note may grant proxies and otherwise authorize any Person, including Depositary Participants and Persons that hold interests in Notes through Depositary Participants, to take any action that such Holder is entitled to take with respect to such Global Note under this Indenture or the Notes; and (B) the Company and the Trustee, and their respective agents, may give effect to any written certification, proxy or other authorization furnished by the Depositary.
Section 2.14. Cancellation.
Without limiting the generality of Section 3.08, the Company may at any time deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Conversion Agent will forward to the Trustee each Note duly surrendered to them for transfer, exchange, payment or conversion. The Trustee will promptly cancel all Notes so surrendered to it in accordance with its customary procedures. Without limiting the generality of Section 2.03(B), the Company may not originally issue new Notes to replace Notes that it has paid or that have been cancelled upon transfer, exchange, payment or conversion.
Section 2.15. Notes Held by the Company.
Without limiting the generality of Section 3.08, in determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company will be deemed not to be outstanding; provided, however, that, for purposes of determining whether the Trustee is protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned will be so disregarded.
Section 2.16. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. The Company will promptly prepare, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, definitive Notes in exchange for temporary Notes. Until so exchanged, each temporary Note will in all respects be entitled to the same benefits under this Indenture as definitive Notes.
Section 2.17. Outstanding Notes.
(A) Generally. The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated, excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the Trustee for cancellation in accordance with Section 2.14; (ii) assigned a principal amount of zero by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of any a Global Note representing such Note; (iii) paid in full in accordance with this Indenture; or (iv) deemed to cease to be outstanding to the extent provided in, and subject to, clause (B), (C) or
(D) of this Section 2.17.
(B) Replaced Notes. If a Note is replaced pursuant to Section 2.12, then such Note will cease to be outstanding at the time of its replacement, unless the Trustee and the Company receive proof reasonably satisfactory to them that such Note is held by a “bona fide purchaser” under applicable law.
(C) Maturing Notes and Notes Called for Redemption or Subject to Repurchase. If, on a Redemption Date, a Fundamental Change Repurchase Date or the Maturity Date, the Paying Agent holds money sufficient to pay the aggregate Redemption Price, Fundamental Change Repurchase Price or principal amount, respectively, together, in each case, with the aggregate interest, in each case due on such date, then (unless there occurs a Default in the payment of any such amount) (i) the Notes (or portions thereof) to be redeemed or repurchased, or that mature, on such date will be deemed, as of such date, to cease to be outstanding, except to the extent provided in Sections 4.02(D), 4.03(F) or 5.02(D); and (ii) the rights of the Holders of such Notes (or such portions thereof), as such, will terminate with respect to such Notes (or such portions thereof), other than the right to receive the Redemption Price, Fundamental Change Repurchase Price or principal amount, as applicable, of, and accrued and unpaid interest on, such Notes (or such portions thereof), in each case as provided in this Indenture.
(D) Notes to Be Converted. At the Close of Business on the Conversion Date for any Note (or any portion thereof) to be converted, such Note (or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or interest due, pursuant to Section 5.03(B) or Section 5.02(D), upon such conversion) be deemed to cease to be outstanding, except to the extent provided in Section 5.02(D).
(E) Cessation of Accrual of Interest. Except as provided in Sections 4.02(D), 4.03(F) or 5.02(D), interest will cease to accrue on each Note from, and including, the date that such Note is deemed, pursuant to this Section 2.17, to cease to be outstanding, unless there occurs a default in the payment or delivery of any cash or other property due on such Note.
Section 2.18. Repurchases by the Company.
Without limiting the generality of Section 2.14, the Company may, from time to time, repurchase Notes in open market purchases, in negotiated transactions or otherwise without delivering prior notice to Holders; provided that no Default or Event of Default will have occurred and be continuing at such time.
Section 2.19. CUSIP and ISIN Numbers.
The Company may use one or more CUSIP or ISIN numbers to identify any of the Notes, and, if so, the Company and the Trustee will use such CUSIP or ISIN number(s) in notices to Holders; provided, however, that (i) the Trustee makes no representation as to the correctness or accuracy of any such CUSIP or ISIN number; and (ii) the effectiveness of any such notice will not be affected by any defect in, or omission of, any such CUSIP or ISIN number. The Company will promptly notify the Trustee of any change in the CUSIP or ISIN number(s) identifying any Notes.
Article 3. COVENANTS
Section 3.01. Payment on Notes.
(A) Generally. The Company will pay or cause to be paid all the principal of, the Fundamental Change Repurchase Price and Redemption Price for, interest on, and other amounts due with respect to, the Notes on the dates and in the manner set forth in this Indenture.
(B) Deposit of Funds. Before 10:00 A.M., New York City time, on each Redemption Date, Fundamental Change Repurchase Date or Interest Payment Date, and on the Maturity Date or any other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there to be deposited, with the Paying Agent cash, in funds immediately available on such date, sufficient to pay the cash amount due on the applicable Notes on such date. The Paying Agent will return to the Company, as soon as practicable, any money not required for such purpose.
Section 3.02. Reports.
(A) Generally. The Company will send to the Trustee (i) copies of all reports that the Company is required to file with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act within fifteen (15) calendar days after the date that the Company is required to file the same (after giving effect to all applicable grace periods under the Exchange Act); provided, however, that the Company need not send to the Trustee any material for which the Company has received, or is seeking in good faith and has not been denied, confidential treatment by the SEC and (ii) customary quarterly financial reports within forty-five (45) calendar days of the end of each fiscal quarter. Any report that the Company files with the SEC through the XXXXX system or the RNS system in the United Kingdom (or any successor thereto) or posts on its website will be deemed to be sent to the Trustee at the time such report is so filed via the XXXXX system or RNS system (or such successor) or posted on its website. Upon the request of any Holder, the Trustee will provide to such Holder a copy of any report that the Company has sent the Trustee pursuant to this Section 3.02(A), other than a report that is deemed to be sent to the Trustee pursuant to the preceding sentence.
(B) Trustee’s Disclaimer. The Trustee need not determine whether the Company has filed any material via the XXXXX system (or such successor). The sending or filing of reports to the Trustee pursuant to Section 3.02(A) is for informational purposes only and will not be deemed to constitute actual or constructive notice to the Trustee of any information contained, or determinable from information contained, therein, including the Company’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate).
Section 3.03. Additional Interest.
(A) Accrual of Additional Interest. If, at any time on or after the Last Original Issue Date of any Note, such Note is not Freely Tradable, then Additional Interest will accrue on such Note for each day during such period on which such failure is continuing or such Note is not Freely Tradable. For the avoidance of doubt, any Note bearing the Private Placement Legend is
deemed held by an Affiliate of the Company and no Additional Interest will accrue on the such Note.
(B) Amount and Payment of Additional Interest. Any Additional Interest that accrues on a Note pursuant to Section 3.03(A) will be payable on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof. For the avoidance of doubt, any Additional Interest that accrues on a Note will be in addition to the Stated Interest that accrues on such Note and in addition to any Special Interest that accrues on such Note.
(C) Notice of Accrual of Additional Interest; Trustee’s Disclaimer. The Company will send notice to the Holder of each Note, and to the Trustee, of the commencement and termination of any period in which Additional Interest accrues on such Note. In addition, if Additional Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Additional Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Additional Interest on such Note on such date of payment; and (ii) the amount of such Additional Interest that is payable on such date of payment. The Trustee will have no duty to determine whether any Additional Interest is payable or the amount thereof.
Section 3.04. Additional Amounts.
(A) Requirement to Pay Additional Amounts. All payments and deliveries made by, or on behalf of, the Company under or with respect to the Notes (including payment of the principal of, or the Redemption Price or Fundamental Change Repurchase Price for, or any interest on, or the delivery of any consideration due upon conversion of, any Note) will be made without withholding or deduction for, or on account of, any present or future Taxes, unless such withholding or deduction is required by law or regulation or by governmental policy having the force of law. If any Taxes levied by or on behalf of any jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Company or any Successor Corporation is, for tax purposes, organized or resident or doing business or through which payment is made or deemed to be made (each such jurisdiction, subdivision or authority, as applicable, a “Relevant Taxing Jurisdiction”) are required to be withheld or deducted from any payments or deliveries made under or with respect to the Notes, then, subject to Section 4.03(C)(ii), the Company or such Successor Corporation, as applicable, will pay to the holder of each note such additional amounts (the “Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owner of such Note after such withholding or deduction (and after withholding or deducting any Taxes on the Additional Amounts) will equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided, however, that such obligation to pay Additional Amounts will not apply to:
(i) any Tax that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction (other than merely holding or being a beneficial owner of such Note or the receipt or enforcement of payments thereunder), including such Holder or beneficial owner being or having been a
national, domiciliary or resident, or treated as a resident, of, or being or having been physically present or engaged in a trade or business, or having had a permanent establishment, in, such Relevant Taxing Jurisdiction;
(2) in cases where presentation of such Note is required to receive such payment or delivery, the presentation of such Note after a period of thirty (30) days after the later of (x) the date on which such payment or delivery became due and payable or deliverable, as applicable, pursuant to the terms of this Indenture and (y) the date such payment or delivery was made or duly provided for, except, in each case, to the extent that such Holder or beneficial owner would have been entitled to Additional Amounts if it presented such Note for payment or delivery, as applicable, at the end of such thirty (30) day period; or
(3) the failure of such Holder or beneficial owner to comply with a timely request from the Company or the Successor Corporation, addressed to such Holder or beneficial owner, to (x) provide certification, information, documentation or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with such Relevant Taxing Jurisdiction; or (y) make any declaration or satisfy any other reporting requirement prescribed by applicable law as a basis to reduce or eliminate the amount of Tax required to be deducted or withheld with respect to payments or deliveries made under or with respect to the Notes, in each case if and to the extent that such Holder or beneficial owner is legally entitled to comply with such request; provided, however, that compliance with any of the foregoing (other than the provision of customary certification forms issued by the US Internal Revenue Service or with respect to U.S. withholding taxes) shall not be required if in the Holder’s or beneficial owner’s reasonable judgment such compliance would subject such Holder or beneficial owner to any material unreimbursed cost or expense or would materially prejudice its legal or commercial position;
(ii) any estate, inheritance, gift, sale, transfer, personal property or similar Tax;
(iii) any tax that is payable other than by withholding or deduction from payments under or with respect to the Notes;
(iv) any withholding or deduction required by (x) sections 1471 through 1474 of the Internal Revenue Code and any current or future U.S. Treasury Regulations or rulings promulgated thereunder (“FATCA”); (y) any inter-governmental agreement between the United States and any other non-U.S. jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement; or (z) any agreement with the U.S. Internal Revenue Service pursuant to Section 1471(b)(1) of the Internal Revenue Code;
(v) any taxes imposed on or with respect to any payment by the Company to such Holder if such Holder is a fiduciary, partnership or person other than the sole beneficial owner of such payment, to the extent that such payment would be required, under the laws of such Relevant Taxing Jurisdiction, to be included for tax purposes in the income of a beneficiary or settlor with respect to such fiduciary, a partner or member of such partnership, or a beneficial owner, who would not have been entitled to such additional amounts had such beneficiary, settlor, partner, member or beneficial owner been the Holder thereof;
(vi) withholding taxes imposed on amounts payable with respect to the Notes pursuant to a law or regulation in effect on the date on which a beneficial owner acquires any Notes; or
(vii) any combination of items referred to in the preceding clauses (i) through (vi), inclusive, above.
(B) Indemnification for Other Taxes. The Company will pay and indemnify each Holder for any present or future stamp, issue, registration, transfer; court, documentary, excise or property Taxes (“Other Taxes”) levied by any Relevant Taxing Jurisdiction in connection with the execution, delivery, registration, issuance or enforcement of any of the Notes (other than on or in connection with a transfer of a note that occurs after the initial sales thereof) or the receipt of any payments or deliveries with respect to the Notes; provided, however, that, with respect to any such taxes attributable to the receipt of any payments or deliveries with respect to the Notes, Other Taxes will not include those excluded under any combination of clauses (i), (ii), (iv), (v) and (vi) of Section 3.04(A).
(C) For the avoidance of doubt, if any Note is called for a Tax Redemption and the Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, then the Company’s obligation to pay Additional Amounts will apply to the interest payment due on such Note on such Interest Payment Date unless such Note is the subject to a Tax Redemption Opt-Out Election Notice.
(D) Tax Receipts. If the Company is required to make any deduction or withholding from any payments with respect to the Notes, then the (i) Company will deliver to the Trustee official tax receipts (or, if, after expending reasonable efforts, the Company is unable to obtain such receipts, other evidence of payments) evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted; and (ii) the Trustee or the Company will provide a copy of such receipts or evidence, as applicable, upon request from any Holder or beneficial owner of any Notes for whom such deduction or withholding is required to be made.
(E) Interpretation of Indenture and Notes. All references in this Indenture or the Notes to any payment on, or delivery with respect to, the Notes (including payment of the principal of, or the Redemption Price or Fundamental Change Repurchase Price for, or any interest on, or the delivery of any Conversion Consideration due upon conversion of, any Note) will, to the extent that Additional Amounts are payable in respect thereof, be deemed to include the payment of such Additional Amounts.
(F) Survival of Obligations. The obligations set forth in this Section 3.04 will survive any transfer of Notes by a Holder (or, in the case of a Global Note, a holder of a beneficial
interest therein).
Section 3.05. Compliance and Default Certificates.
(A) Annual Compliance Certificate. Within ninety (90) days after December 31, 2019 and each fiscal year of the Company ending thereafter, the Company and the Guarantors will deliver an Officer’s Certificate to the Trustee stating (i) that the signatory thereto has supervised a review of the activities of the Company and the Guarantors during such fiscal year with a view towards determining whether any Default or Event of Default has occurred; and (ii) whether, to such signatory’s knowledge, a Default or Event of Default has occurred or is continuing (and, if so, describing all such Defaults or Events of Default and what action the Company or Guarantors is taking or proposes to take with respect thereto).
(B) Default Certificate. If a Default or Event of Default occurs, then the Company will promptly deliver an Officer’s Certificate to the Trustee describing the same and what action the Company is taking or proposes to take with respect thereto.
Section 3.06. Stay, Extension and Usury Laws.
To the extent that it may lawfully do so, the Company (A) agrees that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law (wherever or whenever enacted or in force) that may affect the covenants or the performance of this Indenture; and (B) expressly waives all benefits or advantages of any such law and agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee by this Indenture, but will suffer and permit the execution of every such power as though no such law has been enacted.
Section 3.07. Corporate Existence.
Subject to Article 6, the Company will cause to preserve and keep in full force and effect:
(A) its corporate existence in accordance with the organizational documents of the Company; and
(B) the material rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries;
provided, however, that the Company need not preserve or keep in full force and effect any such license or franchise if the Board of Directors determines that (x) the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole; and (y) the loss thereof is not, individually or in the aggregate, materially adverse to the Holders.
Section 3.08. Restriction on Acquisition of Notes by the Company.
The Company will promptly deliver to the Trustee for cancellation all Notes that the Company or any of its Subsidiaries have purchased or otherwise acquired.
Section 3.09. Further Instruments and Acts.
At the Trustee’s request, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to more effectively carry out the purposes of this Indenture.
Section 3.10. Listing.
The Parent shall use commercially reasonable efforts to list the Ordinary Shares or ADRs representing Ordinary Shares on Nasdaq and maintain such listing for so long as any Notes are outstanding.
If the Company lists ADRs on Nasdaq, then the Company may by notice to the Trustee and the holders elect, subject to the terms of the ADR facility, to have future conversion of Notes settled in ADRs. For so long as such election is in effect, references to Ordinary Shares will be deemed to refer to ADRs and appropriate adjustment will be made to the settlement and trading provisions of the Notes to account for any deposit ratio between ADRs and Ordinary Shares; provided, that if ADRs cannot be issued to a converting holder under the terms of the ADR facility as then in place, then the settlement and the trading provisions will be deemed to refer to Ordinary Shares with respect to such conversion.
Section 3.11. Restricted Payments.
So long as any Notes remain outstanding, the Company and the Guarantors shall not, and shall not permit any of their Subsidiaries to declare or make, directly or indirectly, any Restricted Payment:
(A) unless, at the time of such Restricted Payment:
(i) no Default shall have occurred and be continuing or would occur as a consequence thereof;
(ii) immediately after giving effect to such transaction on a pro forma basis, the Parent or such Subsidiary, as applicable, could incur $1.00 of additional Indebtedness under Section 3.13(F); and
(iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Parent or such Subsidiary after the Issue Date, excluding Restricted Payments permitted by Section 3.11(B), is less than the amount equal to the Cumulative Credit.
(B) The provisions of Section 3.11(A) will not prohibit:
(i) Customary tax distributions and overhead payments;
(ii) Cashless exchange of Indebtedness;
(iii) Restricted Payments in the amount of five million dollars ($5,000,000) for repurchases of Ordinary Shares; provided no Default or Event of Default will have occurred and be continuing at the time of such Restricted Payment;
(iv) to the extent constituting a Restricted Payment, the payment of fees of non-insider directors not to exceed an annual amount of [***] and the reimbursement of reasonable expenses;
(v) (i) direct or indirect Restricted Payments to the Company and other Subsidiaries of the Company that are Guarantors from other Subsidiaries of the Borrower and (ii) in the case of Subsidiaries that are not Guarantors, direct or indirect Restricted Payments to other Subsidiaries that are not Guarantors;
(vi) (i) Restricted Payments to the Parent to be used for (A) customary director indemnification and compensation payments to the Parent’s director nominees serving on the board of directors of Parent, Company or on the board of directors of any Subsidiary and (B) payment of income Taxes to the extent such income Taxes are attributable to the income of its direct or indirect Subsidiaries, and (ii) so long as no Event of Default has occurred and is continuing, Restricted Payments to the Parent and to Amryt Pharmaceuticals DAC to be used for financial and other reporting and similar customary administrative costs and expenses attributable and fairly allocable to the Company and the Guarantors (including audit and professional fees and other ordinary course operating and administrative expenses incurred by the Parent in its capacity as the ultimate holding company of the Company and the other Guarantors);
(vii) the Parent may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person (other than Disqualified Equity Interests); and
(viii) transactions consisting of intercompany services among the Parent and its wholly-owned Subsidiaries in the ordinary course of business on an arm’s length basis, charged on a cost plus a maximum of 10% basis.
Section 3.12. Dispositions.
So long as any Notes remain outstanding, the Company and the Guarantors shall not, and shall not permit any of their Subsidiaries to declare or make, directly or indirectly, any Disposition or enter into any agreement to make any Disposition, except:
(A) Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Parent and its Subsidiaries, in each case to the extent constituting immaterial property;
(B) Dispositions in the ordinary course of business of Cash Equivalents;
(C) sales of inventory in the ordinary course of business;
(D) Dispositions (other than of material Intellectual Property or of assets relating to metreleptin) for fair market value (as determined by the Company in good faith); provided that (i) the amount of Dispositions does not exceed $250,000 individually or $2,500,000 in the aggregate for all Dispositions while any Notes are outstanding, (ii) immediately prior to and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iii) no less than one hundred percent (100%) of the consideration received for any such Disposition is received in cash;
(E) the leasing, as lessor, of real or personal property not presently used or useful in such Person’s business and is otherwise in the ordinary course of business;
(F) Dispositions of equipment or other assets, to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment or assets or the proceeds of such Dispositions are reasonably promptly applied to the purchase price of similar replacement equipment, all in the ordinary course of business;
(G) Dispositions constituting an Intellectual Property that is not material to the conduct of the business of the Parent, the Guarantors and their Subsidiaries;
(H) Dispositions otherwise permitted by Section 3.13 and Dispositions from any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party;
(I) the licensing of AP101 and AP103 assets outside of the United States and European territories;
(J) Dispositions consisting of licenses of AP102 assets; and
(K) non-ordinary course Disposition of assets subject only to the receipt of fair market value (as determined by the Company in good faith), at least seventy five percent (75%) of the proceeds consisting of cash or Cash Equivalents, and Net Cash Proceeds being applied to repay secured Indebtedness, reinvested within twelve (12) months (or committed to be reinvested into a clinical development program approved by the Parent Board within twelve (12) months) or offered to repurchase the Notes at a purchase price (without premium or penalty) equal to 100% of the principal amount of such Notes plus accrued and unpaid interest on such Notes, if any, to, but excluding, such date of repurchase, which will be a Business Day of the Company’s choosing no later than the end of such twelve (12) month period.
Section 3.13. Indebtedness.
So long as any Notes remain outstanding, the Company and the Guarantors shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication:
(A) Indebtedness outstanding on the Issue Date (including the Notes);
(B) Indebtedness incurred in connection with the Plan (including the Senior Secured
Credit Facility, and which shall further permit the principal amount of indebtedness under the Senior Secured Credit Facility to be increased to one hundred million dollars ($100,000,000) prior to any refinancing of the Senior Secured Credit Facility);
(C) additional Capital Leases incurred after the Issue Date and purchase money Indebtedness in an aggregate amount not to exceed $750,000 in the aggregate at any time outstanding, and any Refinancing Indebtedness in respect of such Indebtedness; provided that any such Indebtedness (i) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured only by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (ii) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(D) other unsecured Indebtedness in an aggregate principal amount not to exceed $250,000 at any time outstanding;
(E) Indebtedness subordinated to the Notes so long as such Indebtedness has a maturity date one year past the Maturity Date and an interest rate lower than the Notes (the “Junior Indebtedness”);
(F) Indebtedness that is pari passu in right of payment to the Notes (including secured Indebtedness) if net pharmaceutical product revenue for the twelve (12) months prior to the incurrence of such Indebtedness, on a pro forma basis, exceeds 1:00 to 1:00 of all funded Indebtedness (excluding the Junior Indebtedness);
(G) Indebtedness in respect of performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, indemnity, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations), and, in each case, letters of credit in respect thereof, incurred in the ordinary course of business;
(H) non-recourse Indebtedness incurred by the Company or the Guarantors or any of their Subsidiaries to finance the payment of insurance premiums of such Person;
(I) Indebtedness owed to any Person providing worker’s compensation, unemployment insurance and other social security legislation, health, disability or other employee benefits or property, casualty or liability insurance to the Company or the Guarantors or any of their Subsidiaries incurred in connection with such Person providing such benefits or insurance pursuant to customary reimbursement or indemnification obligations to such Person;
(J) reimbursement obligations owed to banks and financial institutions with respect to credit card services in an aggregate amount at any one time not exceeding $400,000;
(K) Indebtedness consisting of accounts payable incurred in the ordinary course of business past due for more than 120 days after its stated due date (except for accounts payable contested in good faith) which do not in the aggregate exceed $750,000;
(L) Indebtedness of the Company and the Guarantors under the Deed Poll
Constituting Loan Notes in an aggregate principal amount not to exceed $85,000,000 at any time outstanding;
(M) finance leases with respect to AP101 and AP103 equipment in an amount not to exceed $5,000,000 in the aggregate at any time outstanding; provided that such Indebtedness shall be secured only by the equipment financed thereunder;
(N) Indebtedness under that certain Finance Contract dated as of December 1, 2016 between Amryt Pharmaceuticals DAC and European Investment Bank, as the same may be amended, restated, supplemented or otherwise modified from time to time, from the period from the Issue Date up through one (1) Business Day following the Issue Date which Indebtedness shall be paid in full no later than one (1) Business Day following the Issue Date; and
(O) The refinancing of any Indebtedness that was permitted under this Indenture when it was incurred, only to the extent such principal amount of such refinancing is not more than the principal amount of such Indebtedness being refinanced, plus any customary fees and reasonable expenses.
Article 4. REPURCHASE AND REDEMPTION
Section 4.01. No Sinking Fund.
No sinking fund is required to be provided for the Notes.
Section 4.02. Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change.
(A) Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change. Subject to the other terms of this Section 4.02, if a Fundamental Change occurs, then each Holder will have the right (the “Fundamental Change Repurchase Right”) to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) on the Fundamental Change Repurchase Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price.
(B) Repurchase Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Fundamental Change Repurchase Date for a Repurchase Upon Fundamental Change (including as a result of the payment of the related Fundamental Change Repurchase Price, and any related interest pursuant to the proviso to Section 4.02(D), on such Fundamental Change Repurchase Date), then (i) the Company shall not repurchase any Notes pursuant to this Section 4.02; and (ii) the Company will cause any Notes theretofore surrendered for such Repurchase upon Fundamental Change to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Notes in accordance with the Depositary Procedures).
(C) Fundamental Change Repurchase Date. The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s choosing that is no
more than thirty five (35), nor less than twenty (20), Business Days after the date the Company sends the related Fundamental Change Notice pursuant to Section 4.02(E).
(D) Fundamental Change Repurchase Price. The Fundamental Change Repurchase Price for any Note to be repurchased upon a Repurchase Upon Fundamental Change following a Fundamental Change is an amount in cash equal to 100% of the principal amount of such Note plus accrued and unpaid interest on such Note, if any, to, but excluding, the Fundamental Change Repurchase Date for such Fundamental Change; provided, however, that if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Repurchase Upon Fundamental Change, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Fundamental Change Repurchase Date is before such Interest Payment Date); and (ii) the Fundamental Change Repurchase Price will not include accrued and unpaid interest on such Note to, but excluding, such Fundamental Change Repurchase Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Fundamental Change Repurchase Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C), on the next Business Day to Holders at of the Close of Business on the immediately preceding Regular Record Date; and (y) the Fundamental Change Repurchase Price will include interest on Notes to be repurchased from, and including, such Interest Payment Date.
(E) Fundamental Change Notice. On or before the twentieth (20th) calendar day after the occurrence of a Fundamental Change, the Company will send to each Holder, the Trustee and the Paying Agent a notice of such Fundamental Change (a “Fundamental Change Notice”).
Such Fundamental Change Notice must state:
(i) briefly, the events causing such Fundamental Change;
(ii) the effective date of such Fundamental Change;
(iii) the procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section 4.02, including the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental Change Repurchase Notice;
(iv) the Fundamental Change Repurchase Date for such Fundamental Change;
(v) the Fundamental Change Repurchase Price per $1,000 principal amount of Notes for such Fundamental Change (and, if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.02(D));
(vi) the name and address of the Paying Agent and the Conversion Agent;
(vii) the Conversion Rate in effect on the date of such Fundamental Change Notice and a description and quantification of any adjustments to the Conversion Rate that may result from such Fundamental Change (including pursuant to Section 5.07);
(viii) that Notes for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying Agent for the Holder thereof to be entitled to receive the Fundamental Change Repurchase Price;
(ix) that Notes (or any portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be converted only if such Fundamental Change Repurchase Notice is withdrawn in accordance with this Indenture; and
(x) the CUSIP and IS1N numbers, if any, of the Notes.
Neither the failure to deliver a Fundamental Change Notice nor any defect in a Fundamental Change Notice will limit the Fundamental Change Repurchase Right of any Holder or otherwise affect the validity of any proceedings relating to any Repurchase Upon Fundamental Change.
(F) Procedures to Exercise the Fundamental Change Repurchase Right.
(i) Delivery of Fundamental Change Repurchase Notice and Notes to Be Repurchased. To exercise its Fundamental Change Repurchase Right for a Note following a Fundamental Change, the Holder thereof must deliver to the Paying Agent:
(1) before the Close of Business on the second Business Day immediately before the related Fundamental Change Repurchase Date (or such later time as may be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such Note; and
(2) such Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note).
The Paying Agent will promptly deliver to the Company a copy of each Fundamental Change Repurchase Notice that it receives.
(ii) Contents of Fundamental Change Repurchase Notices. Each Fundamental Change Repurchase Notice with respect to a Note must state:
(1) if such Note is a Physical Note, the certificate number of such Note;
(A) |
Generally.
|
(B) |
Conversion Consideration.
|
![](https://www.sec.gov/Archives/edgar/data/1783010/000114036120011158/nt10008556x5_ex10-6image01.jpg)
CR0 = |
the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately before the Open of
Business on the effective date of such share split or share combination, as applicable;
|
CR1 = |
the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or the Open of Business on such effective date, as applicable;
|
OS0 = |
the number of Ordinary Shares outstanding immediately before the Open
|
OS1 = |
the number of Ordinary Shares outstanding immediately after giving effect to such dividend, distribution, share split or share combination.
|
![](https://www.sec.gov/Archives/edgar/data/1783010/000114036120011158/nt10008556x5_ex10-6image02.jpg)
CR0 = |
the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
|
CR1 = |
the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
|
OS = |
the number of Ordinary Shares outstanding immediately before the Open of Business on such Ex-Dividend Date;
|
X = |
the total number of Ordinary Shares issuable pursuant to such rights, options or warrants; and
|
Y = |
a number of Ordinary Shares obtained by dividing (x) the aggregate price
|
![](https://www.sec.gov/Archives/edgar/data/1783010/000114036120011158/nt10008556x5_ex10-6image03.jpg)
CR0 = |
the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
|
CR1 = |
the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
|
SP = |
the average of the Last Reported Sale Prices per Ordinary Share for the ten (10) consecutive; Trading Days ending on, and including, the Trading Day immediately before such Ex-Dividend Date; and
|
FMV = |
the fair market value (as determined by the Parent Board and expressed in U.S. dollars, translated, if necessary, at the Prevailing Exchange Rate on such Ex-Dividend Date), as of such Ex-Dividend Date, of the shares of Capital Stock,
evidences of indebtedness, assets, property, rights, options or warrants distributed per Ordinary Share pursuant to such distribution;
|
![](https://www.sec.gov/Archives/edgar/data/1783010/000114036120011158/nt10008556x5_ex10-6image04.jpg)
CR0 = |
the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such Spin-Off;
|
CR1 = |
the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
|
FMV = |
the product of (x) the average of the Last Reported Sale Prices per-share or unit of the Capital Stock or equity interests distributed in such Spin-Off over the
ten (10) consecutive Trading Day period (the “Spin-Off Valuation Period”) beginning on, and including, such Ex-Dividend Date (such average to be determined as if references to Ordinary Shares in
the definitions of Last Reported Sale Price, Trading Day and Market Disruption Event were instead references to such Capital Stock or equity interests); and (y) the number of shares or units of such Capital Stock or equity interests
distributed per Ordinary Share in such Spin-Off; and
|
SP = |
the average of the Last Reported Sale Prices per Ordinary Share for each Trading Day in the Spin-Off Valuation Period.
|
![](https://www.sec.gov/Archives/edgar/data/1783010/000114036120011158/nt10008556x5_ex10-6image05.jpg)
CR0 = |
the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution;
|
CR1 = |
the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
|
SP = |
the Last Reported Sale Price per Ordinary Share on the Trading Day immediately before such Ex-Dividend Date; and
|
D = |
the cash amount distributed per Ordinary Share in such dividend or distribution (translated, if necessary, to U.S. dollars at the Prevailing Exchange Rate on the Trading Day immediately before such Ex-Dividend Date);
|
![](https://www.sec.gov/Archives/edgar/data/1783010/000114036120011158/nt10008556x5_ex10-6image06.jpg)
CR0 = |
the Conversion Rate in effect immediately before the time (the “Expiration Time”) such tender or exchange offer expires;
|
CR1 = |
the Conversion Rate in effect immediately after the Expiration Time;
|
AC = |
the aggregate value (determined as of the Expiration Time by the Parent Board) of all cash and other consideration paid for Ordinary Shares purchased in such tender or exchange offer;
|
OS0 = |
the number of Ordinary Shares outstanding immediately before the Expiration Time (before giving effect to the purchase of all Ordinary Shares accepted for purchase or exchange in such tender or exchange offer);
|
OS1 = |
the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect to the purchase or exchange of all Ordinary Shares accepted for purchase or exchange in such tender or exchange offer); and
|
SP = |
the average of the Last Reported Sale Prices per Ordinary Share over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation; Period”) beginning on, and including, the Trading Day immediately after the Expiration Date;
|
Share Price
|
||||||||||
Make-Whole
Fundamental Change
Effective Date
|
$2.15
|
$2.25
|
$2.59
|
$3.00
|
$3.50
|
$3.88
|
$4.50
|
$6.00
|
$7.50
|
$10.00
|
10/1/19
|
121.4018
|
112.2628
|
86.4189
|
64.0178
|
45.5830
|
35.6131
|
23.9672
|
8.9946
|
2.6633
|
0.0000
|
4/1/20
|
122.8119
|
113.4598
|
87.0650
|
64.2588
|
45.5751
|
35.5048
|
23.7883
|
8.8226
|
2.5589
|
0.0000
|
4/1/21
|
124.4477
|
114.6413
|
87.1003
|
63.5532
|
44.4663
|
34.3045
|
22.6059
|
7.9912
|
2.0999
|
0.0000
|
4/1/22
|
123.9865
|
113.6540
|
84.9064
|
60.6895
|
41.4452
|
31.3841
|
20.0418
|
6.4074
|
1.3159
|
0.0000
|
4/1/23
|
119.4853
|
108.5144
|
78.4475
|
53.8290
|
34.9588
|
25.4501
|
15.1618
|
3.7706
|
0.3000
|
0.0000
|
4/1/24
|
106.7106
|
94.7416
|
62.8992
|
38.5379
|
21.5864
|
13.9042
|
6.5287
|
0.3851
|
0.0000
|
0.0000
|
4/1/25
|
77.3517
|
57.6944
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
(A) |
Generally. If there occurs any:
|
Aegerion Pharmaceuticals, Inc.
|
||
By:
|
/s/ Xxxxxx Xxxxx
|
|
Name: Xxxxxx Xxxxx
|
||
Title: President and Director
|
Amryt Pharma Holdings plc
|
||
(to be renamed Amryt Pharma plc)
|
||
By:
|
/s/ Xxx Xxxxx
|
|
Name: Xxx Xxxxx
|
||
Title: Director
|
(to be renamed Amryt Pharma Holding Limited)
|
||
By:
|
/s/ Xxx Xxxxx
|
|
Name: Xxx Xxxxx
|
||
Title: Director
|
AEGERION PHARMACEUTICALS HOLDINGS, INC.
|
||
/s/ Xxxxxx Xxxxx
|
||
Xxxxxx Xxxxx
|
||
President and Director
|
Aegerion Pharmaceuticals Limited
|
||
By:
|
/s/ Xxxx XxXxxx
|
|
Name: Xxxx XxXxxx
|
||
Title: Director
|
Amryt Pharma (UK) Limited
|
||
By:
|
/s/ Xxx Xxxxx
|
|
Name: Xxx Xxxxx
|
||
Title: Director
|
GIVEN under the common seal of Amryt Pharmaceuticals DAC and DELIVERED as a DEED
|
||
By:
|
/s/ Xxx Xxxxx
|
|
Name: Xxx Xxxxx
|
||
Title: Director
|
||
By:
|
/s/ Xxxxxx Xxxxx
|
|
Name: Xxxxxx Xxxxx
|
||
Title: Director/Secretary
|
GIVEN under the common seal of Amryt Research Limited and DELIVERED as a DEED
|
||
By:
|
/s/ Xxx Xxxxx
|
|
Name: Xxx Xxxxx
|
||
Title: Director
|
||
By:
|
/s/ Xxxxxx Xxxxx
|
|
Name: Xxxxxx Xxxxx
|
||
Title: Director/Secretary
|
GIVEN under the common seal of Amryt Genetics Limited
and DELIVERED as a DEED
|
||
By:
|
/s/ Xxx Xxxxx
|
|
Name: Xxx Xxxxx
|
||
Title: Director
|
||
By:
|
/s/ Xxxxxx Xxxxx
|
|
Name: Xxxxxx Xxxxx
|
||
Title: Director/Secretary
|
GIVEN under the common seal of Amryt Lipidology Limited and DELIVERED as a DEED
|
||
By:
|
/s/ Xxx Xxxxx
|
|
Name: Xxx Xxxxx
|
||
Title: Director
|
||
By:
|
/s/ Xxxxxx Xxxxx
|
|
Name: Xxxxxx Xxxxx
|
||
Title: Director/Secretary
|
GIVEN under the common seal of Amryt Endocrinology Limited and DELIVERED as a DEED
|
||
By:
|
/s/ Xxx Xxxxx
|
|
Name: Xxx Xxxxx
|
||
Title: Director
|
||
By:
|
/s/ Xxxxxx Xxxxx
|
|
Name: Xxxxxx Xxxxx
|
||
Title: Director/Secretary
|
GLAS Trust Company LLC
|
||
By:
|
/s/ Xxxx Xxxxxxxx
|
|
Name: Xxxx Xxxxxxxx
|
||
Title: Vice President
|
CUSIP No.: [___]
|
Certificate No. [____]
|
Interest Payment Dates:
|
April 1 and October 1 of each year, commencing on April 1, 2020.
|
Regular Record Dates:
|
March 16 and September 16.
|
Aegerion Pharmaceuticals, Inc.
|
||||
Date:
|
By:
|
|||
Name:
|
||||
Title:
|
Date:
|
By:
|
|||
Authorized Signatory
|
Date
|
Amount of Increase
(Decrease) in Principal Amount of this Global Note |
Principal Amount of
this Global Note After Such Increase (Decrease) |
Signature of
Authorized Signatory of Trustee |
|||
|
the entire principal amount of
|
|
$____________* aggregate principal amount of
|
Date:
|
|
|||
(Legal Name of Holder)
|
||||
By:
|
||||
Name:
|
||||
Title:
|
||||
Signature Guaranteed:
|
||||
Participant in a Recognized Signature
Guarantee Medallion Program |
||||
By:
|
||||
Authorized Signatory
|
* Must be an Authorized Denomination.
|
the entire principal amount of
|
|
$____________* aggregate principal amount of
|
Date:
|
|
|||
(Legal Name of Holder)
|
||||
By:
|
||||
Name:
|
||||
Title:
|
||||
Signature Guaranteed:
|
||||
Participant in a Recognized Signature
Guarantee Medallion Program |
||||
By:
|
||||
Authorized Signatory
|
Name:
|
||
Address:
|
||
Social security or
|
||
tax identification
|
||
number:
|
Date:
|
|
|||
(Legal Name of Holder)
|
||||
By:
|
||||
Name:
|
||||
Title:
|
||||
Signature Guaranteed:
|
||||
Participant in a Recognized Signature
Guarantee Medallion Program |
||||
By:
|
||||
Authorized Signatory
|
Dated:
|
|||
(Name of Transferee)
|
|||
By:
|
|||
Name:
|
|||
Title:
|