Exhibit
1.1
Teleflex Incorporated
$350,000,000 3.875% Convertible Senior Subordinated Notes Due 2017
Underwriting Agreement
August 3, 2010
Goldman, Sachs & Co.
Jefferies & Company, Inc.
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
J.P. Morgan Securities Inc.
c/o Goldman, Sachs & Co.
200 West Street,
New York, New York 10282-2198
Ladies and Gentlemen:
Teleflex Incorporated, a Delaware corporation (the Company), proposes, subject to the terms
and conditions stated in this Underwriting Agreement (this Agreement), to issue and sell to the
Underwriters named in Schedule I hereto (the Underwriters) an aggregate of $350,000,000 principal
amount (the Firm Securities) of its Convertible Senior Subordinated Notes due 2017 (the Notes),
which are convertible into shares of the Companys common stock, $1 par value (Stock), and, at
the election of the Underwriters, up to an aggregate of $50,000,000 in additional aggregate
principal amount of Notes (the Optional Securities) (the Firm Securities and the Optional
Securities which the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the Securities). The Securities will be issued pursuant to an indenture,
dated as of August 2, 2010 (the Base Indenture) by and between the Company and Wells Fargo Bank,
N.A., as trustee (the Trustee), as supplemented by the first supplemental indenture, dated as of
the Time of Delivery, by and between the Company and the Trustee (together with the Base Indenture,
the Indenture).
The Company and the Underwriters, in accordance with the requirements of Conduct Rule 2720
(Rule 2720) of the Financial Industry Regulatory Authority, formerly National Association of
Securities Dealers, Inc. (FINRA) and subject to the terms and conditions stated herein, also
hereby confirm the engagement of the services of Goldman, Sachs & Co. (the Independent
Underwriter), as a qualified independent
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underwriter within the meaning of Section (f)(12) of Rule 2720 in connection with the
offering and sale of the Securities.
Concurrently with the issue and sale of the Securities, the Company will (i) enter into an
amendment (the Credit Facility Amendment) to the Companys $1.8 billion senior secured credit
facilities (the Existing Credit Facilities) and (ii) enter into the convertible note hedge
transactions and warrant transactions (collectively, the Hedge Transactions).
The Securities are being offered and sold in connection with a partial repayment of borrowings
under the Companys Existing Credit Facilities and the prepayment of the Companys outstanding
7.62% Series A Senior Notes due 2012, 7.94% Series B Senior Notes due 2014 and Floating Rate Series
C Senior Notes due 2012 (the 2007 Existing Senior Notes) (collectively, the Refinancing). The
proceeds from the sale of the Securities, together with the proceeds from the sale of the warrant
transaction, available cash and borrowings under the Companys revolving credit facility, will be
used to fund the Refinancing and to pay the fees, expenses and other costs relating to the offer
and sale of the Securities, the entry into the Credit Facility Amendment and the entry into the
Hedge Transactions.
This Agreement, the Securities and the Indenture are collectively referred to herein as the
Note Documents.
1. The Company represents and warrants to, and agrees with, each of the Underwriters
and the Independent Underwriter that:
(a) An automatic shelf registration statement as defined under Rule 405
under the Securities Act of 1933, as amended (the Act) on Form S-3 (File No. 333-168464)
in respect of the Securities and shares of Stock issuable upon conversion thereof has been
filed with the Securities and Exchange Commission (the Commission) not earlier than three
years prior to the date hereof; such registration statement, and any post-effective
amendment thereto, became effective on filing; and no stop order suspending the
effectiveness of such registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission, and no notice of objection of the Commission to the use of
such registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company (the base prospectus filed as part
of such registration statement, in the form in which it has most recently been filed with
the Commission on or prior to the date of this Agreement, is hereinafter called the Basic
Prospectus; any preliminary prospectus (including any preliminary prospectus supplement)
relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act
is hereinafter called a Preliminary Prospectus; the various parts of such registration
statement, including all exhibits thereto but excluding Form T-1 and including any
prospectus supplement relating to the Securities that is filed with the Commission and
deemed by virtue of Rule 430B to be part of such
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registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the Registration
Statement; the Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the Pricing
Prospectus; the form of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the Prospectus; any reference herein to the Basic Prospectus, the
Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934,
as amended (the Exchange Act), and incorporated therein, in each case after the date of
the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any issuer free writing prospectus as defined
in Rule 433 under the Act relating to the Securities is hereinafter called an Issuer Free
Writing Prospectus);
(b) No order preventing or suspending the use of any Preliminary Prospectus
or any Issuer Free Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as amended (the Trust
Indenture Act) and the rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein;
(c) For the purposes of this Agreement, the Applicable Time is 5:30 pm
(Eastern time) on the date of this Agreement; the Pricing Prospectus as supplemented by the
final term sheet in the form attached as Schedule III hereto prepared and filed pursuant to
Section 5(a) hereof, taken together (collectively, the Pricing Disclosure Package) as of
the Applicable Time, did not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under
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which they were made, not misleading; and each Issuer Free Writing Prospectus listed on
Schedule II(a) hereto does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of
the Applicable Time, did not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in an Issuer
Free Writing Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use
therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading; any further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through Goldman, Sachs &
Co. expressly for use therein; and no such documents were filed with the Commission since
the Commissions close of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as set forth on Schedule
II(b) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to each part of the Registration Statement and as of the
applicable filing date as to the Prospectus and any amendment or supplement thereto, contain
an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
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in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for
use therein;
(f) Neither the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or contemplated
in the Pricing Prospectus; and, since the respective dates as of which information is given
in the Registration Statement and the Pricing Prospectus, there has not been any change in
the capital stock or long term debt of the Company or any of its subsidiaries (other than
changes due to (i) issuances of the Companys common stock under the Companys employee
benefit plans and the Companys dividend reinvestment plan, (ii) any shares purchased under
the Companys existing stock repurchase program or (iii) any scheduled repayment of the
Companys existing debt) or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs, management,
financial position, stockholders equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing
Prospectus;
(g) Each of the Company and its significant subsidiaries (as such term is
defined in Rule 1-02(w) of Regulation S-X under the Act; each a Subsidiary and together
the Subsidiaries) have good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by it, in each case free and clear
of all liens, encumbrances and defects (other than pledges of shares of certain of the
Companys domestic and foreign subsidiaries created pursuant to the Existing Credit
Facilities and the Companys existing 7.66% Series 2004-1 Tranche A Notes due 2011, 8.14%
Series 2004-1 Tranche B Notes due 2014 and 8.46% Series 2004-1 Tranche C Notes due 2016
(collectively, the 2004 Existing Senior Notes and, together with the 2007 Existing Senior
Notes, the Existing Senior Notes)) except such as are described in the Pricing Prospectus
or such as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and its
Subsidiaries; and any real property and buildings held under lease by the Company and its
Subsidiaries are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material to, and do not materially interfere with the use made and
proposed to be made of such property and buildings by, the Company and its Subsidiaries;
(h) The Company has been duly incorporated or otherwise formed and is validly
existing as a corporation, limited liability company, partnership or other legal entity in
good standing under the laws of its jurisdiction of incorporation or formation and each of
them has the power and authority (corporate and other) to own, lease and operate its
properties and to conduct its business as described in
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the Pricing Prospectus. The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction, except as would not be reasonably
expected to have a material adverse effect on the business, condition (financial or
otherwise), results of operations, properties or prospects of the Company and its
subsidiaries, taken as a whole (a Material Adverse Effect); and each Subsidiary of the
Company is listed on Schedule IV hereto, has been duly incorporated or organized and is
validly existing as a corporation or limited liability company, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or formation, as the case may
be; and each of the subsidiaries of the Company, other than the Subsidiaries, has been duly
incorporated or organized and is validly existing as a corporation or limited liability
company, as the case may be, in good standing under the laws of its jurisdiction of
incorporation or formation, as the case may be, except where the failure to be in good
standing would not have a Material Adverse Effect;
(i) The Company has all requisite corporate power and authority to execute
and deliver this Agreement and the other Note Documents to which it is a party, and to
perform its obligations hereunder and thereunder and to consummate the transactions herein
and therein contemplated. This Agreement has been duly authorized, executed and delivered
by the Company;
(j) The Company has an authorized capitalization as set forth in the Pricing
Prospectus and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable; the shares of Stock
initially issuable upon conversion of the Securities have been duly and validly authorized
and reserved for issuance and, when issued and delivered in accordance with the provisions
of the Securities and the Indenture referred to below, will be duly and validly issued,
fully paid and non-assessable and will conform to the description of the Stock contained in
the Pricing Disclosure Package and the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors qualifying shares and except as
otherwise set forth in the Pricing Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims (other than pledges
of shares of certain of the Companys domestic and foreign subsidiaries created pursuant to
the Existing Credit Facilities and the Existing Senior Notes);
(k) The Securities have been duly authorized and, when issued and delivered
by the Company pursuant to this Agreement and authenticated in the manner provided in the
Indenture and delivered against payment of the purchase price therefor, will have been duly
executed, authenticated, issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture, which is
substantially in the form filed as
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an exhibit to the Registration Statement; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and, when executed and delivered by the Company
and the Trustee, will constitute a valid and legally binding instrument, enforceable against
the Company in accordance with its terms, subject, in the case of each of the Securities and
the Indenture, as to enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors rights and to general equity
principles; the Securities and the Indenture will conform in all material respects to the
descriptions thereof in the Pricing Disclosure Package and the Prospectus; and the Indenture
will conform in all material respects to the requirements of the Trust Indenture Act and the
regulations of the Commission applicable to an indenture that is qualified thereunder;
(l) The issue and sale of the Securities and the compliance by the Company with all of
the provisions of the Note Documents to which each is a party and the consummation of the
transactions herein and therein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, except where such breach or violation would not, individually or in
the aggregate, result in a Material Adverse Effect or have a material adverse effect on the
ability of the Company and its subsidiaries to perform their obligations in accordance with
the terms of the Note Documents, (ii) result in any violation of the provisions of the
Certificate of Incorporation or By-laws or similar organizational documents of the Company
or any of its Subsidiaries, or (iii) result in any violations of the provisions of any
statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their properties, except
where such violation would not, individually or in the aggregate, result in a Material
Adverse Effect or have a material adverse effect on the ability of the Company and its
subsidiaries to perform their obligations in accordance with the terms of the Note
Documents; and no consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions contemplated by this
Agreement or the Indenture except (i) such as have been obtained under the Act and the Trust
Indenture Act and (ii) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters;
(m) Neither the Company nor any of its Subsidiaries is (i) in violation of its
Certificate of Incorporation or By-laws or similar organizational document or (ii) in
default in the performance or observance of any obligation, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement,
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lease or other agreement or instrument to which it is a party or by which it or any of its
properties may be bound, except, in the case of clause (ii), for any such default or
violation that would not, individually or in the aggregate, result in a Material Adverse
Effect;
(n) The statements set forth in the Pricing Prospectus and the Prospectus under the
caption Description of Notes and Description of Capital Stock, insofar as they purport
to constitute a summary of the terms of the Securities and the Stock, under the caption
Certain United States Federal Income and Estate Tax Consequences to Non-U.S. Holders and
under the caption Underwriting, insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate summaries in all material respects;
(o) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its Subsidiaries is a party
or of which any property of the Company or any of its Subsidiaries is the subject which, if
determined adversely to the Company or any of its Subsidiaries, would, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect; and, other
than as set forth in the Pricing Prospectus, to the Companys knowledge, no such proceedings
are threatened by governmental authorities or others;
(p) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an investment company,
as such term is defined in the Investment Company Act of 1940, as amended (the Investment
Company Act);
(q) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus) and (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the
exemption of Rule 163 under the Act, the Company was a well-known seasoned issuer as
defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company
was not an ineligible issuer as defined in Rule 405 under the Act;
(r) PricewaterhouseCoopers LLP, who has audited certain financial statements of the
Company and its subsidiaries, and has audited the Companys internal control over financial
reporting and managements assessment thereof are independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder;
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(s) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Companys principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles. The Companys internal control over financial reporting is effective and the
Company is not aware of any material weaknesses in its internal control over financial
reporting;
(t) Since the date of the latest audited financial statements included or incorporated
by reference in the Pricing Prospectus, there has been no change in the Companys internal
control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Companys internal control over financial reporting;
(u) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the Companys
principal executive officer and principal financial officer by others within those entities;
and such disclosure controls and procedures are effective;
(v) The financial statements of the Company, including the notes thereto, and
any supporting schedules included in the Pricing Prospectus and Prospectus present fairly,
in all material respects, the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the cash flows and results of
operations for the periods specified by the Company and its consolidated subsidiaries; such
financial statements have been prepared in all material respects in conformity with United
States generally accepted accounting principles applied on a consistent basis throughout the
periods involved; and any supporting schedules included in the Pricing Prospectus and the
Prospectus present fairly, in all material respects, the information required to be stated
therein;
(w) Except as would not, individually or in the aggregate, result in a
Material Adverse Effect or except as disclosed in the Pricing Prospectus and the Prospectus:
(i) neither the Company nor any of its subsidiaries is, to the Companys knowledge, or has
been, in violation of any U.S. federal, state, local or foreign law (including common law),
regulation, rule, requirement, decision or order relating to pollution or protection of
worker health, the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata), natural resources, or wildlife, including,
without limitation, laws and regulations relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, wastes, toxic substances,
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hazardous substances, petroleum and petroleum products (collectively, Materials of
Environmental Concern), or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling of, or exposure to, Materials of
Environmental Concern (collectively
,
Environmental Laws
),
which violation includes,
without limitation, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its subsidiaries under
applicable Environmental Laws, nor has the Company or any of its subsidiaries received any
written communication, whether from a governmental authority, citizens group, employee or
otherwise, that alleges that the Company or any of its subsidiaries is in violation of any
Environmental Law, (ii) there is no claim or action with respect to which the Company or any
of its subsidiaries has received written notice, and no written notice by any person or
entity alleging potential liability for investigatory costs, cleanup costs, governmental
response costs, natural resources damages, property damages, personal injuries, attorneys
fees or penalties arising out of, based on or resulting from the presence, or release into
the environment, of any Material of Environmental Concern at any location owned, leased or
operated by the Company or any of its subsidiaries, now or in the past (collectively,
Environmental Claims) pending or, to the knowledge of the Company, threatened in writing
against the Company or any of its subsidiaries or any person or entity whose liability for
any Environmental Claim the Company or any of its subsidiaries has retained or assumed
either contractually or by operation of law and (iii) to the knowledge of the Company, there
are no past or present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or disposal of any
Material of Environmental Concern, that would be reasonably expected to result in a
violation of any Environmental Law or form the basis of a potential Environmental Claim
against the Company or any of its subsidiaries or any person or entity whose liability for
any Environmental Claim the Company or any of its subsidiaries has retained or assumed
either contractually or by operation of law;
(x) The Company and each of its Subsidiaries own, are licensed to use, or
possess all intellectual property and proprietary rights, including, without limitation,
trademarks, trademark licenses, service marks, trade names, patents, patent licenses,
copyrights, copyright licenses, works of authorship, all applications and registrations for
the foregoing, approvals, trade secrets, domain names, technology, know-how and processes
and all other similar rights (collectively, the Intellectual Property Rights) necessary to
conduct their respective businesses, free and clear of liens. To the best knowledge of the
Company, (i) no third party is violating or infringing the Intellectual Property Rights of
the Company or any of its Subsidiaries and (ii) the conduct of the business of the Company
and its Subsidiaries does not violate or infringe the Intellectual Property Rights of
others, except as would not reasonably be expected to result in a Material Adverse Effect;
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(y) Except as would not result, individually or in the aggregate, in a
Material Adverse Effect or except as disclosed in the Pricing Prospectus, neither the
Company, nor the Companys business operations, is in violation of any Health Care Laws. For
purposes of this Agreement, Health Care Laws means (i) all federal and state fraud and
abuse laws, including, but not limited to, the federal Anti-Kickback Statute (42 U.S.C.
§1320a-7(b)), the Stark Law (42 U.S.C. §1395nn and §1395(q)), the Anti-Inducement Law (42
U.S.C. § 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. §3729 et seq.), the
administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the exclusion laws (42 U.S.C. §
1320a-7), the civil monetary penalty laws (42 U.S.C. § 1320a-7a) and the regulations
promulgated pursuant to such statutes, (ii) the Health Insurance Portability and
Accountability Act of 1996 (Pub. L. No. 104-191) and the Health Information Technology for
Economic and Clinical Health Act of 2009, and the regulations promulgated thereunder and
comparable state privacy and security laws, (iii) Medicare (Title XVIII of the Social
Security Act) and the regulations promulgated thereunder, (iv) Medicaid (Title XIX of the
Social Security Act) and the regulations promulgated thereunder, (v) the federal Food, Drug,
and Cosmetic Act (21 U.S.C. § 301 et seq.) and the regulations promulgated pursuant thereto,
(vi) quality, safety and accreditation standards and requirements of all applicable state
laws or regulatory bodies and (vii) any and all other applicable health care laws,
regulations, manual provisions, policies and administrative guidance, each of (i) through
(vii) as may be amended from time to time. Except as disclosed in the Pricing Prospectus,
the Company has not received notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any governmental authority
alleging that any product, operation or activity is in violation of any applicable Health
Care Law or permit and has no knowledge that any such governmental authority is considering
any such claim, litigation, arbitration, action, suit, investigation or proceeding; and the
Company has not received notice, either verbally or in writing, that any governmental
authority has taken, is taking or intends to take action to limit, suspend, modify or revoke
any permits and has no knowledge that any such governmental authority is considering such
action, except for any of the foregoing that would not reasonably be expected to result in a
Material Adverse Effect;
(z) The Company and each of its Subsidiaries possess such permits, licenses,
franchises, certificates, orders and other approvals or authorizations issued by
governmental or regulatory authorities (Permits) as are necessary under applicable law to
conduct their businesses in the manner described in the Pricing Prospectus, except for any
of the foregoing that would not, individually or in the aggregate, result in a Material
Adverse Effect or except as disclosed in the Pricing Prospectus. The Company and its
Subsidiaries have each fulfilled and performed all of their respective obligations with
respect to the Permits, and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or result in any other impairment of the
rights of the holder of any such Permits, except for any of the foregoing that would not,
individually or in the aggregate, result in a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries has received notice of any revocation or
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modification of any such Permits or has any reason to believe that any such Permits
will not be renewed in the ordinary course, except that would not, individually or in the
aggregate, result in a Material Adverse Effect;
(aa) The Company holds, and is operating in material compliance with, such
registrations, licenses, approvals, authorizations and clearances of the United States Food
and Drug Administration (FDA) required for the conduct of its business as currently
conducted (collectively, the FDA Authorizations), except where the failure to hold or
operate in material compliance with the FDA Authorizations would not result in a Material
Adverse Effect, and all such FDA Authorizations are in full force and effect. The Company
has fulfilled and performed all of its material obligations with respect to the FDA
Authorizations, and no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other material impairment
of the rights of the holder of any FDA Authorization, except where the failure to so fulfill
or perform, or the occurrence of such event, would not result in a Material Adverse Effect.
Except as disclosed in the Pricing Prospectus, the Company has operated and currently is in
compliance in all material respects with applicable statutes and implementing regulations
administered or enforced by the FDA, except where the failure to so comply would not result
in a Material Adverse Effect. Except as disclosed in the Pricing Prospectus, the Company has
not received notice of any pending or threatened claim, suit, proceeding, hearing,
enforcement, audit, investigation, arbitration or other action from the FDA or applicable
foreign regulatory agency alleging that any operation or activity of the Company is in
violation of any applicable law, rule or regulation;
(bb) Except as disclosed in the Pricing Prospectus, since January 1, 2007,
the Company has not had any product or manufacturing site (whether Company-owned or that of
a contract manufacturer for the Companys products) subject to a governmental authority
(including FDA) shutdown or import or export prohibition, nor received any FDA Form 483 or
other governmental authority notice of inspectional observations, Warning Letters,
untitled letters or requests or requirements to make changes to the Companys products
that if not complied with would reasonably be expected to result in a Material Adverse
Effect on the Company, or similar correspondence or notice from the FDA or other
governmental authority in respect of the Company business and alleging or asserting
noncompliance with any applicable law, Permit or such requests or requirements of a
governmental authority, and, to the knowledge of the Company, neither the FDA nor any
governmental authority is considering such action;
(cc) Except as would not result in a Material Adverse Effect, there are no
recalls, field notifications, field corrections, market withdrawals or replacements, safety
alerts or other notice of action relating to an alleged lack of safety, efficacy or
regulatory compliance of the Companys products, or, to the Companys knowledge, material
product complaints with respect to the Companys products, and to the Companys knowledge,
there are no notices or pending or threatened action by FDA that would be reasonably likely
to result in
-12-
(i) a material recall, field notification, field correction, market withdrawal or
replacement, safety alert or other notice of action relating to an alleged lack of safety,
efficacy, or regulatory compliance of the Companys products with respect to the Companys
products, (ii) a material change in labeling of any the Companys products, or (iii) a
termination or suspension of marketing or testing of any the Companys products;
(dd) The Company and each of its Subsidiaries have filed all necessary U.S.
federal, state and foreign income and franchise tax returns or have properly requested
extensions thereof, and have paid all taxes required to be paid by any of them and, if due
and payable, any related or similar assessment, fine or penalty levied against any of them
except as may be being contested in good faith and by appropriate proceedings or have been
accrued for on the consolidated financial statements of the Company, except where the
failure to file such tax returns or pay such taxes, assessments, fines and penalties
individually or in the aggregate would not result in a Material Adverse Effect. The Company
has made adequate charges, accruals and reserves in its consolidated financial statements
contained in the Pricing Prospectus in respect of all U.S. federal, state and foreign income
and franchise taxes for all periods as to which the tax liabilities of the Company or any of
its subsidiaries has not been finally determined, except to the extent that the failure to
do so would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect;
(ee) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the Companys knowledge, is imminent that would result in a
Material Adverse Effect;
(ff) The Company and each of its Subsidiaries are insured by recognized and,
to the Companys knowledge, financially sound institutions with policies in such amounts and
with such deductibles and covering such risks as are generally deemed reasonably adequate
for the conduct of their respective businesses, including, without limitation, policies
covering real and personal property owned, leased or operated by them against theft, damage,
destruction or acts of vandalism, and all such insurance is in full force and effect.
Neither the Company nor any of its Subsidiaries has any reason to believe that it will not
be able to (i) renew its existing insurance coverage as and when such policies expire or
(ii) obtain comparable coverage from similar institutions as may be reasonably necessary or
appropriate to conduct the business of the Company
and its Subsidiaries as now conducted and at a cost that would not reasonably be
expected to result in a Material Adverse Effect;
(gg) No relationship, direct or indirect, that would be required to be
described pursuant to Item 404 of Regulation S-K under the Act in an annual report on Form
10-K filed by the Company exists between or among the Company or any of its subsidiaries, on
the one hand, and the directors, officers, stockholders, customers or suppliers of the
Company or any of its subsidiaries,
-13-
on the other hand, that has not been described in the Pricing Prospectus and the
Prospectus;
(hh) Each employee benefit plan (as defined under Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder
(collectively, ERISA)) which is subject to Title IV of ERISA (each, a Plan) and is
maintained by the Company or any of its subsidiaries, is in compliance in all material
respects with ERISA to the extent subject thereto. ERISA Affiliate means, with respect to
the Company, any member of any group of organizations described in Sections 414(b), (c), (m)
or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the Code) of which the Company is a member. Except as would
not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect: (a) no reportable event (as defined under Section 4043(c) of ERISA other
than those events for which the 30 day notice period has been waived) has occurred respect
to any Plan which is maintained by the Company or any of its ERISA Affiliates, (b) neither
the Company nor any of its ERISA Affiliates has incurred any unsatisfied liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any Plan or (ii)
Sections 412, or 4972 of the Code and (c) each Plan established or maintained by the Company
that is intended to be qualified under Section 401 of the Code has received a determination
letter from the Internal Revenue Service stating that it is so qualified, and to the
Companys knowledge nothing has occurred, whether by action or failure to act, which would
cause the loss of such qualification;
(ii) Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would
give rise to a valid claim against any of them or the Underwriters for a brokerage
commission, finders fee or like payment in connection with the offering and sale of the
Securities;
(jj) There is and has been no failure on the part of the Company or any of
its directors or officers, in their capacities as directors or officers, to comply with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith;
(kk) None of the transactions contemplated by this Agreement will violate or
result in a violation of Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors
of the Federal Reserve System;
(ll) Neither the Company nor any of its subsidiaries, nor, to the knowledge
of the Company, any director, officer, agent, employee or other representative acting on
behalf of the Company or any of its subsidiaries, has taken any action in furtherance of an
offer, payment, promise to pay, or authorization or approval of the payment or giving of
money, property, gifts or
-14-
anything else of value, directly or indirectly, to any government official or employee
to influence official action or secure an improper advantage that would constitute a
violation of the Foreign Corrupt Practices Act of 1977;
(mm) The operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with (i) applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, except that would not reasonably be expected to result in a Material Adverse
Effect, (ii) the applicable money laundering statutes of jurisdictions where the Company and
its subsidiaries conduct business, (iii) the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the Money Laundering Laws) and (iv) no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened;
(nn) Neither the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of the Company or any of
its subsidiaries: (i) is currently subject to any U.S. sanctions administered and/or
enforced by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC) or
(ii) appears on the Specially Designated Nationals and Blocked Persons list maintained by
OFAC or the Annex to Executive Order 13224 issued by the President of the United States,
each as amended from time to time. The Company will not directly or indirectly use the
proceeds of the offering contemplated hereby, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently subject to any U.S.
trade and economic sanctions administered by OFAC nor provide such proceeds to any
destination, entity or person prohibited from receiving them by the laws or regulations of
the United States or will otherwise fail to comply with those United States laws and
regulations;
(oo) The Company is subject to and in compliance with the reporting
requirements of Section 13 or 15(d) of the Exchange Act;
(pp) Prior to the date hereof, neither the Company nor any of its affiliates
has taken any action which is designed to or which has constituted or which might reasonably
have been expected to cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Securities.
2. Subject to the terms and conditions herein set forth, (a) the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 97.25% of the principal amount
thereof, the principal amount of Securities set forth
-15-
opposite the name of such Underwriter in Schedule I hereto, and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional Securities as
provided below, the Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at the same purchase
price set forth in clause (a) of this Section 2, that portion of the aggregate principal amount of
the Optional Securities as to which such election shall have been exercised (to be adjusted by you
so as to eliminate fractions of $1,000) determined by multiplying such aggregate principal amount
of Optional Securities by a fraction, the numerator of which is the maximum aggregate principal
amount of Optional Securities which such Underwriter is entitled to purchase as set forth opposite
the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum
aggregate principal amount of Optional Securities which all of the Underwriters are entitled to
purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at their election up to
$50,000,000 in aggregate principal amount of Optional Securities, at the purchase price set forth
in clause (a) of the first paragraph of this Section 2, for the sole purpose of covering sales of
securities in excess of the aggregate principal amount of Firm Securities. Any such election to
purchase Optional Securities may be exercised by written notice from you to the Company, given
within a period of 13 calendar days after the First Time of Delivery (as defined in Section 4
hereof), setting forth the aggregate principal amount of Optional Securities to be purchased and
the date on which such Optional Securities are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof) and in no event
later than five Business Days following such written notice.
3. Upon the authorization by you of the release of the Securities, the several
Underwriters propose to offer the Securities for sale upon the terms and conditions set forth in
the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will be
represented by one or more definitive global Securities in book-entry form which will be deposited
by or on behalf of the Company with The Depository Trust Company (DTC) or its designated
custodian. The Company will deliver the Securities to Goldman, Sachs & Co., for the account of
each Underwriter, against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer in Federal (same day) funds, by causing DTC to credit the Securities to
the account of Goldman, Sachs & Co. at DTC. The Company will cause the certificates representing
the Securities to be made available to Goldman, Sachs & Co. for checking at least twenty-four hours
prior to the Time of Delivery (as defined below) at the office of Latham & Watkins LLP, 885 Third
Avenue, Suite 1000, New York, NY 10022-4834 (the Closing Location). The time and date of such
delivery and payment shall be, with respect to the Firm Securities, 9:30 a.m., New York City time,
on August 9, 2010, or such other time and date as Goldman, Sachs & Co. and the Company may agree
upon in writing, and, with respect to the Optional Securities, 9:30 a.m., New York City time, on
the date specified by Goldman, Sachs & Co. in the written notice given by the Underwriters of the
Underwriters election to purchase the Optional Securities, or at such other time and
-16-
date as Goldman, Sachs & Co. and the Company may agree upon in writing. Such time and date
for delivery of the Firm Securities is herein called the First Time of Delivery, any time and
date for delivery of Optional Securities is herein called an Optional Time of Delivery, and each
such time and date for delivery of Securities is herein called a Time of Delivery.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the
parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriters pursuant to Section 8(k) hereof, will be
delivered at such time and date at the Closing Location, and the Securities will be delivered at
DTC or its designated custodian, all at each Time of Delivery. A meeting will be held at the
Closing Location at 5:00 p.m., New York City time, on the New York Business Day next preceding such
Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to
the preceding sentence will be available for review by the parties hereto. For the purposes of
this Section 4, New York Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters and the Independent Underwriter:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commissions close of business on the
second business day following the date of this Agreement; to make no further amendment or any
supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time
of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has
been filed and to furnish you with copies thereof; to prepare a final term sheet, containing solely
a description of the Securities, in a form approved by you and to file such term sheet pursuant to
Rule 433(d) under the Act within the time required by such Rule; to file promptly all other
material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the
Act; to file promptly all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in
connection with the offering or sale of the Securities; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities,
of any notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the
qualification of the Securities or the shares of Stock issuable upon conversion of the Securities
for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose,
-17-
or of any request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other
prospectus or suspending any such qualification, to promptly use its best efforts to obtain the
withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly
to take such steps including, without limitation, amending the Registration Statement or filing a
new registration statement, at its own expense, as may be necessary to permit offers and sales of
the Securities by the Underwriters (references herein to the Registration Statement shall include
any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a
form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not
later than may be required by Rule 424(b) under the Act; and to make no further amendment or
supplement to such form of prospectus which shall be disapproved by you promptly after reasonable
notice thereof;
(c) If by the third anniversary (the Renewal Deadline) of the initial effective
date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the
Company will file, if it has not already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Securities, in a form satisfactory to you. If at the
Renewal Deadline the Company is no longer eligible to file an automatic shelf registration
statement, the Company will, if it has not already done so, file a new shelf registration statement
relating to the Securities, in a form satisfactory to you and will use its best efforts to cause
such registration statement to be declared effective within 180 days after the Renewal Deadline.
The Company will take all other action necessary or appropriate to permit the public offering and
sale of the Securities to continue as contemplated in the expired registration statement relating
to the Securities. References herein to the Registration Statement shall include such new
automatic shelf registration statement or such new shelf registration statement, as the case may
be;
(d) Promptly from time to time to take such action as you may reasonably request to
qualify the Securities and the shares of Stock issuable upon conversion of the Securities for
offering and sale under the securities laws of such jurisdictions as you may reasonably request and
to comply with such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any jurisdiction or to subject
itself to taxation in any such jurisdiction where it is not then so subject;
(e) Prior to 10:00 a.m., New York City time, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the Underwriters with
written and electronic copies of the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in
-18-
connection with the offering or sale of the Securities and the shares of Stock issuable upon
conversion of the Securities and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the Prospectus in order to
comply with the Act, the Exchange Act or the Trust Indenture Act, to notify you and upon your
request to file such document and to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many written and electronic copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance; and in case any Underwriter is required to
deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in
connection with sales of any of the Securities and the shares of Stock issuable upon conversion of
the Securities at any time nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(f) To make generally available to its securityholders as soon as practicable, but
in any event not later than sixteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(g) During the period beginning from the date hereof and continuing to, and
including, the date that is 90 days after the date of the Prospectus, not to offer, sell, contract
to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as
provided hereunder of, any securities of the Company that are substantially similar to the
Securities or the Stock, including but not limited to any options or warrants to purchase shares of
Stock or any securities that are convertible into or exchangeable for, or that represent the right
to receive, Stock or any such substantially similar securities (other than (i) pursuant to the
Securities, (ii) pursuant to the warrant transactions under the Hedge Transactions, (iii) upon the
exercise of outstanding options or vesting of outstanding restricted stock awards pursuant to our
existing employee or director stock compensation option or stock incentive plans, (iv) the shares
of Stock to be distributed from the Companys existing deferred compensation plan, (v) the shares
of Stock the Company is obligated to issue to its existing 401K retirement savings plans, (vi) a
proposed acquisition or an acquisition pursuant to which the Company agrees to issue or issues
shares of Stock; provided that the aggregate market value of such shares of Stock may not exceed
10% of the market capitalization of the Company as of the date hereof and the recipients of such
shares of Stock agree to be bound by the restrictions contained in this paragraph for 90 days after
-19-
the date hereof, and (vi) upon the conversion, exchange or exercise of convertible,
exchangeable or exercise of securities outstanding as of the date of this Agreement), without the
prior written consent of Goldman, Sachs & Co.;
(h) To pay the required Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise
in accordance with Rules 456(b) and 457(r) under the Act;
(i) To use the net proceeds received by it from the sale of the Securities pursuant
to this Agreement in the manner specified in the Pricing Prospectus under the caption Use of
Proceeds;
(j) To reserve and keep available at all times, free of preemptive rights, shares of
Stock for the purpose of enabling the Company to satisfy any obligation to issue shares of its
Stock upon conversion of the Securities; and
(k) To list, subject to notice of issuance, the shares of Stock issuable upon
conversion of the Securities on the New York Stock Exchange (the Exchange).
6.
(a) (i) The Company represents and agrees that, other than the final term sheet in the
form attached as Schedule III hereto prepared and filed pursuant to Section 5(a) hereof, without
the prior consent of Goldman, Sachs & Co., the Company has not made and will not make any offer
relating to the Securities that would constitute a free writing prospectus as defined in Rule 405
under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company and
Goldman, Sachs & Co., other than one or more term sheets relating to the Securities containing
customary information and conveyed to purchasers of Securities, it has not made and will not make
any offer relating to the Securities that would constitute a free writing prospectus; and
(iii) any such free writing prospectus the use of which has been consented to by the Company
and Goldman, Sachs & Co. (including the final term sheet in the form attached as Schedule III
hereto prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule II(a) hereto (or,
in the case of the final term sheet, on Schedule III hereto);
(b) The Company has complied and will comply with the requirements of Rule 433 under
the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the
Commission or retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free
Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing
Prospectus would conflict with the information in the Registration Statement, the Pricing
Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make
-20-
the statements therein, in the light of the circumstances then prevailing, not misleading, the
Company will give prompt notice thereof to Goldman, Sachs & Co. and, if requested by Goldman, Sachs
& Co., will prepare and furnish without charge to each Underwriter an Issuer Free Writing
Prospectus or other document which will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply to any statements or omissions in an
Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein.
7. The Company covenants and agrees with the several Underwriters and Independent
Underwriter that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Companys counsel and accountants in connection with the
registration of the Securities and the shares of Stock issuable upon conversion of the Securities
under the Act and all other expenses in connection with the preparation, printing, reproduction and
filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer
Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters (including any agreement with the Independent
Underwriter), this Agreement, the Indenture, the Blue Sky Memorandum, closing documents (including
any compilations thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all expenses in connection with the qualification of the
Securities and the shares of Stock issuable upon conversion of the Securities for offering and sale
under state securities laws as provided in Section 5(d) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters and the Independent Underwriter in connection with
such qualification and in connection with the Blue Sky survey; (iv) any fees charged by securities
rating services for rating the Securities; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required review by FINRA of
the terms of the sale of the Securities; (vi) all fees and expenses in connection with listing the
shares of Stock issuable upon conversion of the Securities on the Exchange; (vii) the cost of
preparing the Securities; (viii) the fees and expenses of the Trustee and any agent of the Trustee
and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the
Securities; and (ix) all other reasonable costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the
Underwriters and the Independent Underwriter will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other statements of the
Company herein are, at and as of the Time of Delivery, true and correct, the condition that the
Company shall have performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
-21-
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet
contemplated by Section 5(a) hereof, and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission and no notice
of objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Latham & Watkins LLP, counsel for the Underwriters, shall have furnished to you
such written opinion or opinions, dated each Time of Delivery, in form and substance reasonably
satisfactory to the Underwriters, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(c) Simpson Thacher & Bartlett LLP, counsel for the Company, shall have furnished to
you their written opinion and negative assurance statement substantially in the form attached as
Annex II(a) hereto, dated each Time of Delivery;
(d) Laurence G. Miller, as general counsel to the Company, shall have furnished to
you his written opinion substantially in the form attached as Annex II(b) hereto, dated each Time
of Delivery;
(e) Hyman, Phelps & McNamara PC, as special healthcare regulatory counsel to the
Company, shall have furnished to you their written opinion substantially in the form attached as
Annex II(c) hereto, dated each Time of Delivery;
(f) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any post effective amendment
to the Registration Statement filed subsequent to the date of this Agreement and also at each Time
of Delivery, PricewaterhouseCoopers LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto;
(g) (i) Neither the Company nor any of its subsidiaries shall have sustained since
the date of the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and
(ii) since the
-22-
respective dates as of which information is given in the Pricing Prospectus there shall not
have been any change in the capital stock or long term debt of the Company or any of its
subsidiaries (other than changes due to (i) issuances of the Companys common stock under the
Companys employee benefit plans and the Companys dividend reinvestment plan, (ii) any shares
purchased under the Companys existing stock repurchase program or (iii) any scheduled repayment of
the Companys existing debt) or any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position, stockholders equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is
in the judgment of Goldman, Sachs & Co. so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Securities on the terms and
in the manner contemplated in the Prospectus;
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the Companys debt securities by any nationally recognized statistical rating
organization, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Companys debt securities;
(i) On or after the Applicable Time there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities generally on the
Exchange; (ii) a suspension or material limitation in trading in the Companys securities on the
Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or
New York, State authorities or a material disruption in commercial banking or securities settlement
or clearance services in the United States; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a national emergency or war
or (v) the occurrence of any other calamity or crisis or any change in financial, political or
economic conditions in the United States or elsewhere, if the effect of any such event specified in
clause (iv) or (v) in the judgment of Goldman, Sachs & Co. makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(j) The shares of Stock issuable upon conversion of the Securities shall have been
duly listed, subject to notice of issuance, on the Exchange;
(k) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a), (f) and (g) of this Section and as to such other matters
as you may reasonably request; and
-23-
(l) The Company shall have obtained and delivered to the Underwriters executed copies of an
agreement from all holders of the Company listed in Schedule V hereto, substantially to the effect
set forth in Annex III hereof.
9. (a) The Company will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or any issuer information filed or required to be
filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided, however, that none of
the Company shall be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Goldman, Sachs & Co. expressly for
use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any
such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by such Underwriter through
Goldman, Sachs & Co. expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) The Company will indemnify and hold harmless Goldman, Sachs & Co., in its
capacity as Independent Underwriter, against any losses, claims, damages or
-24-
liabilities, joint or several, to which the Independent Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or omission to act or any alleged act or omission to act by
Goldman, Sachs & Co. as Independent Underwriter in connection with any transaction contemplated by
this Agreement or undertaken in preparing for the purchase, sale and delivery of the Shares, except
as to this clause (iii) to the extent that any such loss, claim, damage or liability results from
the gross negligence or bad faith of Goldman, Sachs & Co. in performing the services as Independent
Underwriter, and will reimburse the Independent Underwriter for any legal or other expenses
reasonably incurred by the Independent Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c)
above of notice of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to any indemnified
party (except to the extent that such failure to notify results in any material prejudice against
the indemnifying party with respect to such action) otherwise than under such subsection. In case
any such action shall be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation; provided, that in case any such action shall be brought against
any indemnified party and such indemnifying party notifies such indemnified party of its election
so to assume the defense thereof, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
contrary; (ii) the indemnifying party has failed within a reasonable time to retain counsel
satisfactory to the indemnified party; (iii) the indemnified party shall have reasonably
concluded that there may be legal defenses available to it that are different from or in addition
to those available to the indemnifying party; or (iv) the named parties in any such action
(including any impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing
-25-
interests between them. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters or Independent Underwriter, as applicable, on the
other from the offering of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Company on the one hand
and the Underwriters or Independent Underwriter, as applicable, on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters or the Independent Underwriter, as
applicable, on the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters or the Independent Underwriter,
as applicable, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriters on the
other and the parties relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company, the Underwriters and the Independent
Underwriter agree that it would not be just and equitable if contribution pursuant to this
subsection (e) were determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to
-26-
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters obligations in this subsection (e) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(f) The obligations of the Company under this Section 9 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter or Independent Underwriter within
the meaning of the Act and each broker-dealer affiliate of any Underwriter; and the obligations of
the Underwriters or Independent Underwriter under this Section 9 shall be in addition to any
liability which the respective Underwriters or Independent Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the Company (including
any person who, with his or her consent, is named in the Registration Statement as about to become
a director of the Company) and to each person, if any, who controls the Company within the meaning
of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion arrange for you or
another party or other parties to purchase such Securities on the terms contained herein. If
within thirty six hours after such default by any Underwriter you do not arrange for the purchase
of such Securities, then the Company shall be entitled to a further period of thirty six hours
within which to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed periods, you notify
the Company that you have so arranged for the purchase of such Securities, or the Company notifies
you that it has so arranged for the purchase of such Securities, you or the Company shall have the
right to postpone the Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or
in any other documents or arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term Underwriter as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally been a party to
this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities
of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Securities which remains unpurchased does not exceed
one eleventh of the aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal amount of Securities
which such
-27-
Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of Securities which such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities
of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of Securities which remains unpurchased exceeds one eleventh
of the aggregate principal amount of all the Securities, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof
and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other
statements of the Company, the several Underwriters and the Independent Underwriter, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or the Independent Underwriter or any
controlling person of any Underwriter or the Independent Underwriter, or the Company, or any
officer or director or controlling person of the Company, and shall survive delivery of and payment
for the Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company
shall not then be under any liability to any Underwriter or Independent Underwriter except as
provided in Sections 7 and 9 hereof; but, if for any other reason, the Securities are not delivered
by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters and
the Independent Underwriter, through you, for all out of pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the Underwriters and
Independent Underwriter in making preparations for the purchase, sale and delivery of the
Securities, but the Company shall not then be under further liability to any Underwriter and
Independent Underwriter except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by you.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
(i) Underwriters shall be delivered or sent by mail, telex or facsimile
-28-
transmission to Goldman, Sachs & Co. at 200 West Street, New York, New York 10282-2198,
Attention: Registration Department, (ii) Independent Underwriter, shall be delivered or sent by
mail, telex or facsimile transmission to Goldman, Sachs & Co. at 200 West Street, New York, New
York 10282-2198, Attention: Registration Department and (iii) Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an Underwriter or
Independent Underwriter pursuant to Section 9(d) hereof shall be delivered or sent by mail, telex
or facsimile transmission to such Underwriter or Independent Underwriter at its address set forth
in its Underwriters Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, Independent Underwriter, the Company and, to the extent provided in Sections 9 and 11
hereof, the officers and directors of the Company and each person who controls the Company, any
Underwriter or Independent Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue of
this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term
business day shall mean any day when the Commissions office in Washington, D.C. is open for
business.
16. (a) The Company hereby confirms its engagement of the services of the
Independent Underwriter as, and the Independent Underwriter hereby confirms its agreement with the
Company to render services as, a qualified independent underwriter within the meaning of Section
(f)(12) of Rule 2720 with respect to the offering and sale of the Securities.
(b) The Independent Underwriter hereby represents and warrants to, and agrees with, the
Company and the Underwriters that with respect to the offering and sale of the Securities as
described in the Prospectus:
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(i)
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The Independent Underwriter constitutes a qualified independent
underwriter within the meaning of Section (f)(12) of Rule 2720;
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-29-
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(ii)
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The Independent Underwriter has participated in the preparation of
the Registration Statement and the Prospectus and has exercised the usual
standards of due diligence in respect thereto; and
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(iii)
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The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act specifically
including those inherent in Section 11 thereof.
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(c) The Independent Underwriter hereby agrees with the Company and the Underwriters that, as
part of its services hereunder, in the event of any amendment or supplement to the Prospectus, the
Independent Underwriter will render services as a qualified independent underwriter within the
meaning of Section (f)(12) of Rule 2720 with respect to the offering and sale of the Securities as
described in the Prospectus as so amended or supplemented that are substantially the same as those
services being rendered with respect to the offering and sale of the Securities as described in the
Prospectus (including those described in subsection (b) above).
(d) The Company, the Underwriters and the Independent Underwriter agree to comply in all
material respects with all of the requirements of Rule 2720 applicable to them in connection with
the offering and sale of the Securities. The Company agrees to cooperate with the Underwriters and
the Independent Underwriter to enable the Underwriters to comply with Rule 2720 and the Independent
Underwriter to perform the services contemplated by this Agreement.
(e) The Company and the Independent Underwriter agree that the Independent Underwriter will
provide its services in its capacity as Independent Underwriter hereunder without compensation
other than such compensation that the Independent Underwriter may receive as an Underwriter
hereunder.
(f) The Independent Underwriter hereby consents to the references to it as set forth under the
caption Underwriting in the Prospectus and in any amendment or supplement thereto made in
accordance with Section 5 hereof.
17. The Company acknowledges and agrees that (i) the purchase and sale of the
Securities pursuant to this Agreement is an arms-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith
and with the process leading to such transaction each Underwriter is acting solely as a principal
and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
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18. This Agreement supersedes all prior agreements and understandings (whether
written or oral) among the Company, the Underwriters and the Independent Underwriter, or any of
them, with respect to the subject matter hereof.
19.
THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE
OF NEW YORK. The Company agrees that any suit or proceeding arising in respect of this agreement
or our engagement will be tried exclusively in the U.S. District Court for the Southern District of
New York or, if that court does not have subject matter jurisdiction, in any state court located in
The City and County of New York and the Company agrees to submit to the jurisdiction of, and to
venue in, such courts.
20. The Company, each of the Underwriters and the Independent Underwriter hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
21. This Agreement may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
22. Notwithstanding anything herein to the contrary, the Company is authorized to
disclose to any persons the U.S. federal and state income tax treatment and tax structure of the
potential transaction and all materials of any kind (including tax opinions and other tax analyses)
provided to the Company relating to that treatment and structure, without the Underwriters or
Independent Underwriter, imposing any limitation of any kind. However, any information relating to
the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not
apply) to the extent necessary to enable any person to comply with securities laws. For this
purpose, tax structure is limited to any facts that may be relevant to that treatment.
-31-
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
and the Independent Underwriter, this letter and such acceptance hereof shall constitute a binding
agreement between each of the Underwriters, the Independent Underwriter and the Company. It is
understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination upon request, but without warranty on your part as to the
authority of the signers thereof.
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Very truly yours,
Teleflex Incorporated
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By:
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/s/ C. Jeffrey Jacobs
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Name:
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C. Jeffrey Jacobs
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Title:
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Treasurer
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-32-
Accepted as of the date hereof:
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Goldman, Sachs & Co.
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By
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/s/ Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
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Jefferies & Company Inc.
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By
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/s/ Craig McCracken
Name: Craig McCracken
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Title: Managing Director
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Morgan Stanley & Co. Incorporated
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By
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/s/ Jon Hammack
Name: Jon Hammack
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Title: Executive Director
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
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By
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/s/ Prasanth Rao-Kathi
Name: Prasanth Rao-Kathi
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Title: Managing Director
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J.P. Morgan Securities Inc.
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By
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/s/ Santosh Sreenivasan
Name: Santosh Sreenivasan
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Title: Managing Director
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Goldman, Sachs & Co.
as Qualified Independent Underwriter
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By
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/s/ Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
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-34-
SCHEDULE I
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Aggregate
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Principal
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Amount of
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Optional
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Securities to
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be
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Principal
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Purchased if
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Amount of
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Maximum
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Securities to be
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Option
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Underwriter
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Purchased
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Exercised
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Goldman, Sachs & Co.
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$
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105,000,000
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$
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15,000,000
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Jefferies & Company Inc.
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$
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70,000,000
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$
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10,000,000
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Morgan Stanley & Co. Incorporated
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$
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70,000,000
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$
|
10,000,000
|
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
$
|
52,500,000
|
|
|
$
|
7,500,000
|
|
J.P. Morgan Securities Inc.
|
|
$
|
52,500,000
|
|
|
$
|
7,500,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
350,000,000
|
|
|
$
|
50,000,000
|
|
|
|
|
-1-
SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
None.
(b) Additional Documents Incorporated by Reference: None.
-2-
SCHEDULE III
Filed pursuant to Rule 433 under the Securities Act of 1933
Issuer Free Writing Prospectus dated August 3, 2010
Relating to Preliminary Prospectus Supplement dated August 2, 2010
Registration Statement No. 333-168464
PRICING TERM SHEET
Dated August 3, 2010 to the
Preliminary Prospectus Supplement Referred to Below
Teleflex Incorporated
Offering of
$350,000,000 principal amount of
3.875% Convertible Senior Subordinated Notes due 2017
The information in this pricing term sheet relates only to the Convertible Senior Subordinated
Notes offering and should be read together with (i) the preliminary prospectus supplement dated
August 2, 2010 relating to the Convertible Senior Subordinated Notes offering, including the
documents incorporated by reference therein, and (ii) the accompanying prospectus dated August 2,
2010, each filed with the Securities and Exchange Commission (the SEC).
|
|
|
Issuer:
|
|
Teleflex Incorporated, a Delaware corporation.
|
|
|
|
Ticker/Exchange for Common
Stock:
|
|
TFX/The New York Stock Exchange (NYSE)
|
|
|
|
Securities Offered:
|
|
3.875% Convertible Senior Subordinated Notes due 2017 (the
Notes).
|
|
|
|
Aggregate Principal Amount
Offered:
|
|
$350,000,000 aggregate principal amount of Notes.
|
|
|
|
Underwriters Option to
Purchase Additional Notes:
|
|
Up to $50,000,000 principal amount of additional Notes.
|
|
|
|
Net Proceeds of the Offering:
|
|
Approximately $338.6 million (or approximately $387.2
million if the underwriters exercise their option to
purchase additional notes in full), after deducting the
underwriters discounts and commissions and estimated
offering expenses payable by the Issuer.
|
|
|
|
Convertible Note Hedge
Transactions and Warrant
Transactions:
|
|
Approximately $25.0 million of the net proceeds from the
offering will be used to pay the cost of the convertible
note hedge transactions (after such cost is partially
offset by the proceeds to us from the sale of the
warrants). If the underwriters exercise their option to
purchase additional notes, the notional size of the
convertible note hedge transactions and the warrant
transactions will be automatically increased in a manner
proportionate to the increase in the principal amount of
the notes being sold in the offering. In such event, the
Issuer intends to use a proportionate portion of the net
proceeds from the sale of such additional Notes (together
with proceeds to the Issuer from the increase in the size
of the warrant transactions) to fund the additional cost of
the
|
-1-
|
|
|
|
|
increased convertible note hedge transactions. The
strike price of the warrant transactions is $74.648
(subject to customary anti-dilution adjustments), which
represents a 40% premium over the Closing Stock Price.
|
|
|
|
Maturity Date:
|
|
August 1, 2017, unless earlier converted or repurchased by
the Issuer at the holders option upon a fundamental
change.
|
|
|
|
Annual Interest Rate:
|
|
3.875% per annum, accruing from the Settlement Date.
|
|
|
|
Interest Payment Dates:
|
|
Each February 1 and August 1, beginning on February 1, 2011.
|
|
|
|
Interest Payment Record Dates:
|
|
January 15 and July 15.
|
|
|
|
Public Offering Price:
|
|
100%
|
|
|
|
Closing Stock Price:
|
|
$53.32 per share of the Issuers common stock on the NYSE
as of August 3, 2010.
|
|
|
|
Conversion Premium:
|
|
Approximately 15% above the Closing Stock Price.
|
|
|
|
Conversion Price:
|
|
Approximately $61.32 per share of the Issuers common
stock, subject to adjustment.
|
|
|
|
Conversion Rate:
|
|
16.3084 shares of the Issuers common stock per $1,000
principal amount of the Notes, subject to adjustment.
|
|
|
|
Joint Book-Running Managers:
|
|
Goldman, Sachs & Co., Jefferies & Company, Inc., Morgan
Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner &
Smith Incorporated and J.P. Morgan Securities Inc.
|
|
|
|
Pricing Date:
|
|
August 3, 2010
|
|
|
|
Expected Settlement Date:
|
|
August 9, 2010
|
|
|
|
CUSIP/ISIN Number:
|
|
879369AA4 / US879369AA42
|
|
|
|
Pro Forma Ratio of Earnings
to Fixed Charges:
|
|
Assuming the Refinancing Transactions were completed as of
January 1, 2009, the pro forma ratio of earnings to
fixed charges for the six months ended June 27, 2010 is
3.1.
|
|
|
|
Borrowing Capacity:
|
|
As of June 27, 2010, on an as adjusted basis after giving
effect to the Refinancing Transactions, the Issuer would
have approximately $345.4 million of borrowing capacity,
consisting of $311.0 million of aggregate borrowing
capacity under the Issuers revolving credit facility and
$34.4 million of borrowing capacity under the Issuers
accounts receivable securitization facility.
|
|
|
|
Adjustment to Conversion Rate
Upon Conversion Upon a
Make-Whole Fundamental
Change:
|
|
The following table sets forth the number of additional
shares of the Issuers common stock by which the conversion
rate will be increased per $1,000 principal amount of
Convertible Senior Subordinated Notes for conversions in
connection with a make-whole fundamental change based on
the stock price and effective date of such make-whole
fundamental change:
|
-2-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effective
|
|
Stock Price
|
Date
|
|
$53.32
|
|
$55.00
|
|
$60.00
|
|
$65.00
|
|
$70.00
|
|
$80.00
|
|
$90.00
|
|
$100.00
|
|
$120.00
|
|
$140.00
|
|
$160.00
|
|
$180.00
|
August 9, 2010
|
|
|
2.4462
|
|
|
|
2.3988
|
|
|
|
1.8223
|
|
|
|
1.4229
|
|
|
|
1.1561
|
|
|
|
0.7968
|
|
|
|
0.5412
|
|
|
|
0.3503
|
|
|
|
0.1375
|
|
|
|
0.0542
|
|
|
|
0.0248
|
|
|
|
0.0075
|
|
August 1, 2011
|
|
|
2.4462
|
|
|
|
2.2671
|
|
|
|
1.6831
|
|
|
|
1.2788
|
|
|
|
1.0186
|
|
|
|
0.7023
|
|
|
|
0.4689
|
|
|
|
0.2975
|
|
|
|
0.1053
|
|
|
|
0.0337
|
|
|
|
0.0093
|
|
|
|
0.0000
|
|
August 1, 2012
|
|
|
2.4186
|
|
|
|
2.1625
|
|
|
|
1.5680
|
|
|
|
1.1563
|
|
|
|
0.8944
|
|
|
|
0.6024
|
|
|
|
0.4000
|
|
|
|
0.2501
|
|
|
|
0.0824
|
|
|
|
0.0237
|
|
|
|
0.0042
|
|
|
|
0.0000
|
|
August 1, 2013
|
|
|
2.3672
|
|
|
|
2.1010
|
|
|
|
1.4760
|
|
|
|
1.0431
|
|
|
|
0.7621
|
|
|
|
0.5051
|
|
|
|
0.3283
|
|
|
|
0.2038
|
|
|
|
0.0610
|
|
|
|
0.0135
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
August 1, 2014
|
|
|
2.3591
|
|
|
|
2.0756
|
|
|
|
1.4063
|
|
|
|
0.9483
|
|
|
|
0.6473
|
|
|
|
0.3811
|
|
|
|
0.2430
|
|
|
|
0.1443
|
|
|
|
0.0353
|
|
|
|
0.0012
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
August 1, 2015
|
|
|
2.3794
|
|
|
|
2.0643
|
|
|
|
1.3271
|
|
|
|
0.8247
|
|
|
|
0.4993
|
|
|
|
0.2336
|
|
|
|
0.1322
|
|
|
|
0.0626
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
August 1, 2016
|
|
|
2.4462
|
|
|
|
2.0944
|
|
|
|
1.2521
|
|
|
|
0.7020
|
|
|
|
0.3644
|
|
|
|
0.1198
|
|
|
|
0.0638
|
|
|
|
0.0228
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
August 1, 2017
|
|
|
2.4462
|
|
|
|
1.8734
|
|
|
|
0.3582
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
The exact stock prices and effective dates may not be set forth in the table above, in
which case:
|
|
|
if the stock price is between two stock prices in the table or the effective date is
between two effective dates in the table, the number of additional shares will be
determined by a straight-line interpolation between the number of additional shares set
forth for the higher and lower stock prices and the earlier and later effective dates,
as applicable, based on a 365-day year;
|
|
|
|
|
if the stock price is greater than $180.00 per share (subject to adjustment in the
same manner as the stock prices set forth in the column headings of the table above),
the conversion rate will not be increased; and
|
|
|
|
|
if the stock price is less than $53.32 per share (subject to adjustment in the same
manner as the stock prices set forth in the column headings of the table above), the
conversion rate will not be increased.
|
Notwithstanding the foregoing, in no event will the conversion rate exceed 18.7546 shares per
$1,000 principal amount of notes, subject to adjustments in the same manner as the conversion rate
as set forth under Description of NotesConversion RightsConversion Rate Adjustments in the
preliminary prospectus supplement dated August 2, 2010.
Capitalization
The following table sets forth Issuers cash and cash equivalents and capitalization as of
June 27, 2010:
|
|
|
on an actual basis; and
|
|
|
|
|
on an as adjusted basis to give effect to the Refinancing Transactions.
|
This table should be read in conjunction with the information set forth under the Use of
Proceeds section and the Description of Other Indebtedness section included in the preliminary
prospectus supplement and the Issuers consolidated financial statements and the notes thereto
incorporated by reference in the preliminary prospectus supplement and accompanying prospectus.
-3-
|
|
|
|
|
|
|
|
|
|
|
As of June 27, 2010
|
|
|
|
Actual
|
|
|
As Adjusted
(1)
|
|
|
|
(Dollars in thousands)
|
|
Cash and cash equivalents
|
|
$
|
287,129
|
|
|
$
|
171,922
|
|
|
|
|
|
|
|
|
Current borrowings:
|
|
|
|
|
|
|
|
|
Accounts receivable securitization facility
(2)
|
|
$
|
39,700
|
|
|
$
|
39,700
|
|
Other
(3)
|
|
$
|
1,764
|
|
|
$
|
1,764
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current borrowings
|
|
$
|
41,464
|
|
|
$
|
41,464
|
|
|
|
|
|
|
|
|
|
|
Long-term debt:
|
|
|
|
|
|
|
|
|
Credit Facilities:
|
|
|
|
|
|
|
|
|
Term loan facility due 2012
(4)
|
|
$
|
600,000
|
|
|
$
|
36,123
|
|
Term loan facility due 2014
(4)
|
|
|
|
|
|
|
363,877
|
|
Revolving credit facility due 2012
|
|
|
|
|
|
|
843
|
|
Revolving credit facility due 2014
|
|
|
|
|
|
|
9,157
|
|
Existing 2007 Senior Notes:
|
|
|
|
|
|
|
|
|
7.62% Series A Senior Notes due 2012
|
|
|
130,000
|
|
|
|
|
|
7.94% Series B Senior Notes due 2014
|
|
|
40,000
|
|
|
|
|
|
Floating Rate Series C Senior Notes due 2012
|
|
|
26,600
|
|
|
|
|
|
Existing 2004 Senior Notes
(5)
:
|
|
|
|
|
|
|
|
|
6.66% Series 2004-1 Tranche A Senior Notes due 2011
|
|
|
145,000
|
|
|
|
145,000
|
|
7.14% Series 2004-1 Tranche B Senior Notes due 2014
|
|
|
96,500
|
|
|
|
96,500
|
|
7.46% Series 2004-1 Tranche C Senior Notes due 2016
|
|
|
90,100
|
|
|
|
90,100
|
|
3.875% Convertible Senior Subordinated Notes due 2017
(6)
|
|
|
|
|
|
|
350,000
|
|
Unamortized discount on 3.875% Convertible Senior Subordinated
Notes due 2017
(6)
|
|
|
|
|
|
|
(73,263
|
)
|
|
|
|
|
|
|
|
Total long-term debt
|
|
$
|
1,128,200
|
|
|
$
|
1,018,337
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total debt
|
|
$
|
1,169,664
|
|
|
$
|
1,059,801
|
|
|
|
|
|
|
|
|
|
|
Common shareholders equity:
|
|
|
|
|
|
|
|
|
Common shares, $1 par value
(7)
|
|
|
42,191
|
|
|
|
42,191
|
|
Additional paid-in capital
(6)
|
|
|
289,319
|
|
|
|
320,047
|
|
Retained earnings
|
|
|
1,502,831
|
|
|
|
1,482,834
|
|
Accumulated other comprehensive income
|
|
|
(121,188
|
)
|
|
|
(121,188
|
)
|
Less: Treasury stock, at cost (2,264,190 shares)
|
|
|
(135,921
|
)
|
|
|
(135,921
|
)
|
|
|
|
|
|
|
|
Total common shareholders equity
|
|
$
|
1,577,232
|
|
|
$
|
1,587,963
|
|
|
|
|
|
|
|
|
Total capitalization
|
|
$
|
2,746,896
|
|
|
$
|
2,647,764
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
For purposes of these calculations, the as adjusted information assumes that the
prepayment make-whole amount included in the aggregate prepayment purchase price of the Existing
2007 Senior Notes equals approximately $27.6 million, based on applicable interest rates as of
August 2, 2010; the actual amount of the prepayment make-whole amount will be calculated using
applicable interest rates on the second business day preceding the prepayment date. In addition,
the as adjusted information assumes that accrued and unpaid interest equals approximately $4.9
million.
|
|
(2)
|
|
The unused borrowing capacity under Issuers accounts receivable securitization facility was
$34.4 million on an actual basis and $34.4 million on an adjusted basis.
|
|
(3)
|
|
Other current borrowings consist of outstanding indebtedness under a short-term working capital
credit facility supporting an operating subsidiary in China.
|
|
(4)
|
|
Aggregate unused borrowing capacity under Issuers revolving credit facility was $297.8 million
on an actual basis and $311.0 million on an as adjusted basis.
|
|
(5)
|
|
The interest rates are effective as of June 28, 2010.
|
-4-
|
|
|
(6)
|
|
In accordance with ASC 470-20, the fair value of the feature to convert the debt into common
stock is reported as a component of stockholders equity. Upon issuance of the notes, the debt will
be reported at a discount to the face amount resulting in a decrease in the amount of debt with an
increase in equity reported in Issuers financial statements. Under GAAP, the amount of debt
reported will accrete up to the face amount over the expected term of the debt. The determination
of the fair values of the debt and equity components has been estimated but is subject to change
based upon the completion of Issuers analysis of non-convertible debt interest rates. Issuer
currently estimates that the fair value of the feature to convert the debt into common stock which
will be reported as unamortized discount on the notes being offered is equal to approximately $73.3
million on a pre-tax basis; this amount will be reported, on an
after-tax basis, as an increase to additional paid-in capital on an as adjusted basis. ASC 470-20
does not affect the actual amount that Issuer is required to repay. In addition, additional paid-in
capital is reduced as a result of the net cost of the convertible note hedge transactions and
warrant transactions, which is approximately $25.0 million on a pre-tax basis; this amount will be
reported on an after-tax basis on an as adjusted basis.
|
|
(7)
|
|
There are 200,000,000 authorized shares of Issuers common stock, of which 39,927,082 shares
were issued and outstanding as of July 14, 2010 on an actual and as adjusted basis. This amount
does not include (i) the shares of Issuers common stock issuable upon conversion of the notes
being offered hereby if Issuer elects to satisfy its conversion obligation by physical settlement
or combination settlement; (ii) the shares of Issuers common stock issuable under the warrant
transactions being entered into concurrently with this offering; (iii) 2,475,030 shares of Issuers
common stock issuable upon exercise of outstanding stock options granted under Issuers 2000 stock
compensation plan (the 2000 Plan) and Issuers 2008 stock incentive plan (the 2008 Plan); (iv)
421,871 shares of Issuers common stock issuable upon vesting of outstanding restricted stock
awards under the 2000 Plan; (v) 1,724,910 shares of Issuers common stock reserved for issuance
under the 2000 Plan and the 2008 Plan; and (vi) approximately 20,000 shares to be distributed from
the deferred compensation plan.
|
The Issuer has filed a registration statement (including the preliminary prospectus supplement
dated August 2, 2010 and an accompanying prospectus dated August 2, 2010) with the SEC, for the
offering to which this communication relates. Before you invest, you should read the relevant
preliminary prospectus supplement, the accompanying prospectus and the other documents the Issuer
has filed with the SEC for more complete information about the Issuer and the offering. You may get
these documents for free by visiting EDGAR on the SEC web site at www.sec.gov. Alternatively,
copies may be obtained from Goldman, Sachs & Co., Attn: Prospectus Department, Goldman, Sachs & Co.
at 200 West Street, New York, NY 10282, (866) 471-2526 or emailing prospectus-ny@ny.email.gs.com,
Jefferies & Company, Inc. at 520 Madison Avenue, 12th Floor, New York, NY 10022, Attention: Equity
Syndicate Prospectus Department (877) 547-6340 or emailing Prospectus_Department@Jefferies.com,
Morgan Stanley & Co. Incorporated at 180 Varick Street, 2nd Floor, New York, NY 10014, Attention:
Prospectus Department, (866) 718-1649 or by emailing prospectus@morganstanley.com, BofA Merrill
Lynch at 4 World Financial Center, New York, NY 10080, Attention: Prospectus Department or emailing
dg.prospectus_requests@baml.com or J.P. Morgan Securities Inc. at 4 Chase Metrotech Center, CS
Level, Brooklyn, NY 11245, Attention: Prospectus Library.
-5-
SCHEDULE IV
Significant Subsidiaries
Arrow International, Inc. (Pennsylvania)
Arrow International Investment Corp. (Delaware)
Teleflex Holding Company (Canada)
Teleflex Holdings Netherlands B.V. (Netherlands)
Teleflex Medical Europe Limited (Ireland)
Teleflex Medical Incorporated (California)
TFX Equities Incorporated (Delaware)
TFX International Corporation (Delaware)
TFX North America Inc. (Delaware)
-6-
SCHEDULE V
Jeffrey P. Black
Richard A. Meier
John Suddarth
Laurence G. Miller
Vince Northfield
George Babich, Jr.
William R. Cook
Stephen K. Klasko
Benson F. Smith
Sigismundus W.W. Lubsen
Stuart A. Randle
Harold L. Yoh III
Patricia C. Barron
Jeffrey A. Graves
James W. Zu
-7-
Exhibit 4.2
TELEFLEX INCORPORATED
as Issuer
WELLS FARGO BANK, N.A.
as Trustee
First Supplemental Indenture
Dated as of August 9, 2010
to the Indenture dated as
of
August 2, 2010
3.875% Convertible Senior Subordinated Notes due 2017
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
PAGE
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ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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Section 1.01
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Scope of Supplemental Indenture
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1
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Section 1.02
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Definitions
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2
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Section 1.03
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References to Interest
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16
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ARTICLE 2. THE SECURITIES
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16
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Section 2.01
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Title and Terms; Payments
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16
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Section 2.02
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Book-Entry Provisions for Global Notes
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17
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Section 2.03
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Reporting Requirement
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18
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Section 2.04
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Repurchase and Cancellation
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19
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ARTICLE 3. FUNDAMENTAL CHANGES AND PURCHASES THEREUPON
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19
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Section 3.01
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Purchase at Option of Holders Upon a Fundamental Change
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19
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Section 3.02
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Effect of Fundamental Change Purchase Notice
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21
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Section 3.03
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Withdrawal of Fundamental Change Purchase Notice
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21
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Section 3.04
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Deposit of Fundamental Change Purchase Price
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22
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Section 3.05
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Notes Purchased in Whole or in Part
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22
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Section 3.06
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Covenant to Comply With Applicable Laws Upon Purchase of Notes
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22
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Section 3.07
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Repayment to the Company
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23
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ARTICLE 4. CONVERSION
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23
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Section 4.01
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Right to Convert
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23
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Section 4.02
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Conversion Procedures
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25
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Section 4.03
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Settlement Upon Conversion
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27
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Section 4.04
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Adjustment of Conversion Rate
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29
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Section 4.05
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Certain Other Adjustments
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39
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Section 4.06
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Adjustment
to Conversion Rate Upon Conversion in Connection with a Make-Whole
Fundamental Change
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39
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Section 4.07
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Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale
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40
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Section 4.08
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Taxes on Shares Issued
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43
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Section 4.09
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Reservation of Shares; Shares to be Fully Paid; Compliance With Governmental
Requirements; Listing of Common Stock
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43
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Section 4.10
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Responsibility of Trustee
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43
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Section 4.11
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Notice to Holders Prior to Certain Actions
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44
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Section 4.12
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Stockholder Rights Plan
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44
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ARTICLE 5. REMEDIES
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45
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Section 5.01
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Events of Default
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45
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Section 5.02
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Acceleration
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46
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Section 5.03
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Additional Interest
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47
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Section 5.04
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Waiver; Unconditional Right of Holders to Receive Amounts Due Upon Conversion
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47
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Section 5.05
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Notice of Defaults
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48
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Section 5.06
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Overdue Payments
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48
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i
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PAGE
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ARTICLE 6. SATISFACTION AND DISCHARGE
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48
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Section 6.01
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Satisfaction and Discharge of the Supplemental Indenture
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48
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Section 6.02
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Deposited Monies to Be Held in Trust by Trustee
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49
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Section 6.03
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Paying Agent to Repay Monies Held
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49
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Section 6.04
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Return of Unclaimed Monies
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49
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Section 6.05
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Reinstatement
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50
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ARTICLE 7. SUPPLEMENTAL INDENTURES
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50
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Section 7.01
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Supplemental Indentures Without Consent of Holders
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50
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Section 7.02
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Supplemental Indentures With Consent of Holders
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51
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Section 7.03
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Notice of Amendment or Supplement
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52
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ARTICLE 8. SUCCESSOR COMPANY
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52
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Section 8.01
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Consolidation, Merger and Sale of Assets
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52
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Section 8.02
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Successor Person Substituted
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53
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Section 8.03
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Opinion of Counsel to Be Given to Trustee
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53
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ARTICLE 9. MISCELLANEOUS
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53
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Section 9.01
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Governing Law
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53
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Section 9.02
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Legal Holidays
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54
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Section 9.03
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No Security Interest Created
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54
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Section 9.04
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Trust Indenture Act
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54
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Section 9.05
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Benefits of Supplemental Indenture
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54
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Section 9.06
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Calculations
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54
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Section 9.07
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Effect of Headings and Table of Contents
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54
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Section 9.08
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Execution in Counterparts
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54
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Section 9.09
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Separability Clause
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54
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Section 9.10
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Ratification of Original Indenture
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54
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Section 9.11
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The Trustee
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55
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Section 9.12
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No Recourse Against Others
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55
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ARTICLE 10. SUBORDINATION
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55
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Section 10.01
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Agreement to Subordinate
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55
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Section 10.02
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Liquidation; Dissolution; Bankruptcy
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55
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Section 10.03
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Default on Designated Senior Indebtedness
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56
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Section 10.04
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Acceleration of Notes
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57
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Section 10.05
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When Distribution Must Be Paid Over
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57
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Section 10.06
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Notice by Company
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57
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Section 10.07
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Subrogation
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57
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Section 10.08
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Relative Rights
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58
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Section 10.09
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Subordination May Not Be Impaired by Company
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58
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Section 10.10
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Distribution or Notice to Representative or Holders of Senior Indebtedness
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58
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Section 10.11
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Rights of Trustee and Paying Agent
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59
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Section 10.12
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Authorization to Effect Subordination; Filing Proof of Claim
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59
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Section 10.13
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Reliance and Amendments
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59
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Section 10.14
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No Layering
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60
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Section 10.15
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No Waiver of Subordination Provisions
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60
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EXHIBIT
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Exhibit A
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Form of Note
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A-1
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ii
FIRST SUPPLEMENTAL INDENTURE (this
Supplemental Indenture
), dated as of August 9, 2010,
between Teleflex Incorporated, a Delaware corporation (the
Company
), and Wells Fargo Bank, N.A,
(the
Trustee
) as trustee under the Indenture dated as of August 2, 2010, between the Company and
the Trustee (as amended or supplemented from time to time in accordance with the terms thereof, the
"
Original Indenture
).
RECITALS OF THE COMPANY
WHEREAS, the Company executed and delivered the Original Indenture to the Trustee to provide,
among other things, for the issuance, from time to time, of the Companys unsecured Securities, in
an unlimited aggregate principal amount, in one or more series to be established by the Company
under, and authenticated and delivered as provided in, the Original Indenture;
WHEREAS, Section 9.1(j) of the Original Indenture provides for the Company and the Trustee to
enter into supplemental indentures to the Original Indenture to establish the form and terms of
Securities of any series as contemplated by Section 2.1 of the Original Indenture;
WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to
execute and deliver this Supplemental Indenture;
WHEREAS, pursuant to the terms of the Original Indenture, the Company desires to establish a
new series of its Securities to be known as its 3.875% Convertible Senior Subordinated Notes due
2017 (the
Notes
), the form and substance of such Notes and the terms, provisions and conditions
thereof to be set forth as provided in the Original Indenture and this Supplemental Indenture;
WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note and the
Form of Notice of Conversion, Form of Fundamental Change Purchase Notice and Form of Assignment and
Transfer contemplated under the terms of the Notes are to be substantially in the forms hereinafter
provided; and
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental
Indenture, and all requirements necessary to make (i) this Supplemental Indenture a valid
instrument in accordance with its terms, and (ii) the Notes, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the Company have been
performed, and the execution and delivery of this Supplemental Indenture have been duly authorized
in all respects.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the
premises and the purchases of the Notes by the Holders thereof, it is mutually agreed, for the
benefit of the Company and the equal and proportionate benefit of all Holders of the Notes, as
follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01
Scope of Supplemental Indenture
. The changes, modifications and supplements to the Original Indenture effected by this
Supplemental Indenture
1
shall be applicable only with respect to, and shall only govern the terms
of, the Notes, which may be issued from time to time, and shall not apply to any other Securities
that may be issued under the Original Indenture unless a supplemental indenture with respect to
such other Securities specifically incorporates such changes, modifications and supplements. The
provisions of this Supplemental Indenture shall supersede any corresponding provisions in the
Original Indenture.
Section 1.02
Definitions
. For all purposes of the Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(i) the terms defined in this Article 1 shall have the meanings assigned to them in
this Article 1 and include the plural as well as the singular;
(ii) all words, terms and phrases defined in the Original Indenture (but not otherwise
defined herein) shall have the same meanings as in the Original Indenture;
(iii) all other terms used herein that are defined in the Trust Indenture Act, either
directly or by reference therein, shall have the meanings assigned to them in the Trust
Indenture Act;
(iv) all accounting terms not otherwise defined herein shall have the meanings assigned
to them in accordance with generally accepted accounting principles, and, except as
otherwise herein expressly provided, the term generally accepted accounting principles
with respect to any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of this instrument; and
(v) the words herein, hereof and hereunder and other words of similar import
refer to this Supplemental Indenture as a whole and not to any particular Article, Section
or other subdivision.
Additional Interest
has the meaning specified in Section 5.03.
Additional Notes
has the meaning specified in Section 2.01.
Additional Shares
has the meaning specified in Section 4.06(a).
Adjustment Event
means, any event that requires an adjustment to the Conversion Rate
pursuant to Sections 4.04(a), (b), (c), (d) or (e).
Affiliate
of any specified person means any other person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified person. For
purposes of this definition, control, as used with respect to any person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such person, whether through the ownership of voting securities, by agreement or
otherwise. For purposes of this definition, the terms
controlling,
controlled by
and
under common control with
have correlative meanings.
Agent Members
has the meaning specified in Section 2.02(a).
2
Bankruptcy Law
means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
Bid Solicitation Agent
means the Company or such other person (including the Trustee) as may
be appointed, from time to time, by the Company to solicit bids for the Trading Price of the Notes
in accordance with Section 4.01(b)(2). The Trustee shall initially act as the Bid Solicitation
Agent.
Board of Directors
means:
(1) with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;
(2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;
(3) with respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and
(4) with respect to any other person, the board or committee of such person serving a
similar function.
Business Day
means, with respect to any Note, any day other than a Saturday, a Sunday or a
day on which the Federal Reserve Bank of New York is authorized or required by law or executive
order to close or to be closed.
Capital Lease Obligations
of any person means the obligations of such person to pay rent or
other amounts under any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be classified and accounted
for as capital leases on a balance sheet of such person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Cash Settlement
has the meaning specified in Section 4.03(a).
Cash Settlement Averaging Period
with respect to any Note being converted means:
(1) with respect to any Conversion Date occurring during the period beginning on March
30, 2017, the 80 consecutive Trading Days beginning on, and including, the 82nd Scheduled
Trading Day prior to the Stated Maturity; and
(2) in all other cases, the 80 consecutive Trading Day period beginning on, and
including, the third Trading Day immediately following the related Conversion Date.
Clause A Distribution
has the meaning specified in Section 4.04(c).
Clause B Distribution
has the meaning specified in Section 4.04(c).
Clause C Distribution
has the meaning specified in Section 4.04(c).
3
close of business
means 5:00 p.m., New York City time.
Code
means the U.S. Internal Revenue Code of 1986, as amended.
Combination Settlement
has the meaning specified in Section 4.03(a).
Common Equity
of any person means Capital Stock of such person that is generally entitled
(a) to vote in the election of directors of such person or (b) if such person is not a corporation,
to vote or otherwise participate in the selection of the governing body, partners, managers or
others that will control the management or policies of such person.
Common Stock
means the common stock of the Company, par value $1 per share, at the date of
this Supplemental Indenture, or such other Reference Property into which the Companys common stock
is changed pursuant to Section 4.07.
Company
has the meaning specified in the first paragraph of this Supplemental Indenture.
Conversion Agent
means the Trustee or such other office or agency designated by the Company
where Notes may be presented for conversion. The Trustee shall initially be the Conversion Agent.
Conversion Date
has the meaning specified in Section 4.02(b).
Conversion Notice
has the meaning specified in Section 4.02(b)(1).
Conversion Obligation
has the meaning specified in Section 4.01(a).
Conversion Price
means, in respect of each Note, as of any date, $1,000,
divided by
the
Conversion Rate as of such date.
Conversion Rate
means initially 16.3084 shares of Common Stock per $1,000 principal amount
of Notes, subject to adjustment as set forth herein.
Corporate Trust Office
means the address of the Trustee specified in Section 12.2 of the
Original Indenture or such other address as to which the Trustee may give notice to the Company.
Credit Facilities
means that certain credit agreement, dated as of October 1, 2007, by and
among the Company, the guarantors party thereto, the lenders party thereto, JPMorgan Chase Bank,
N.A., as administrative agent and collateral agent, and Bank of America, N.A., as syndication
agent, including any related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and, in each case, as amended, restated, modified,
renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or
refinanced (including by means of sales of debt securities) in whole or in part from time to time.
Custodian
means the Trustee, as custodian with respect to the Notes (so long as the Notes
constitute Global Notes), or any successor entity.
4
Daily Conversion Value
means, for each of the 80 consecutive Trading Days during the
applicable Cash Settlement Averaging Period, one-eightieth (1/80th) of the product of (a) the
applicable Conversion Rate on such Trading Day and (b) the Daily VWAP of the Common Stock on such
Trading Day.
Daily Deliverable Shares
means, for each of the 80 consecutive Trading Days during the
applicable Cash Settlement Averaging Period, a number of shares of Common Stock equal to (i) the
difference between the Daily Conversion Value for such Trading Day and the Daily Specified Dollar
Amount,
divided by
(ii) the Daily VWAP for such Trading Day.
Daily Principal Portion
means, for each of the 80 consecutive Trading Days during the
applicable Cash Settlement Averaging Period, an amount of cash equal to the lesser of (i) the Daily
Specified Dollar Amount and (ii) the Daily Conversion Value for such Trading Day.
Daily Settlement Amount
means, for each of the 80 consecutive Trading Days during the
applicable Cash Settlement Averaging Period, an amount consisting of:
(a) the Daily Principal Portion; and
(b) if the Daily Conversion Value for such Trading Day exceeds the Daily Specified
Dollar Amount, the Daily Deliverable Shares.
Daily Specified Dollar Amount
means an amount equal to the Specified Dollar Amount (if any),
divided by
80.
Daily VWAP
means, for each Trading Day, the per share volume-weighted average price as
displayed under the heading Bloomberg VWAP on Bloomberg page TFX.N <equity> AQR (or its
equivalent successor if such page is not available) in respect of the period from scheduled open of
trading until the scheduled close of trading of the primary trading session on such Trading Day (or
if such volume-weighted average price is unavailable, the market value of one share of the Common
Stock on such Trading Day determined, using a volume-weighted average method, by a nationally
recognized independent investment banking firm retained for this purpose by the Company). The
Daily VWAP shall be determined without regard to after hours trading or any other trading outside
of the regular trading session trading hours.
Default
means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
Defaulted Amounts
has the meaning specified in Section 5.06.
Depository
means initially The Depository Trust Company until a successor Depository shall
have become such pursuant to the applicable provisions of the Indenture, and thereafter
Depository shall mean such successor Depository.
Designated Senior Indebtedness
means:
(1) any Indebtedness outstanding under the Credit Facilities;
5
(2) any Indebtedness outstanding under the Existing Senior Notes; and
(3) any other Senior Indebtedness the principal amount of which is $25.0 million or
more and that has been designated by the Company as Designated Senior Indebtedness.
Distributed Property
has the meaning specified in Section 4.04(c).
Dividend Threshold
means initially $0.34 and will be adjusted, in a manner inversely
proportional to adjustments to the Conversion Rate pursuant to Section 4.04;
provided
that no
adjustment will be made to the Dividend Threshold for any adjustment to the Conversion Rate under
Section 4.04(d).
Effective Date
has the meaning specified in Section 4.06(c).
Event of Default
has the meaning specified in Section 5.01.
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
Ex-Dividend Date
means the first date on which shares of the Common Stock trade on the
applicable exchange or in the applicable market, regular way, without the right to receive the
issuance, dividend or distribution in question.
Existing Note Purchase Agreement
means, with respect to any series or tranche of Existing
Senior Notes, the note purchase agreement among the Company, the guarantors thereto and the initial
holders of such Existing Senior Notes, as supplemented, amended, restated, extended, renewed,
replaced or otherwise modified from time to time prior to the date hereof.
Existing Senior Notes
(i) the Companys (a) Series 2004-1 Tranche A Notes due 2011, (b)
Series 2004-1 Tranche B Notes due 2014 and (c) Series 2004-1 Tranche C Notes due 2016, each issued
pursuant to the Existing Note Purchase Agreement, dated July 8, 2004, as amended and (ii) the
Companys (a) Series A Senior Notes due 2012, (b) Series B Senior Notes due 2014 and (c) Floating
Rate Series C Senior Notes due 2012, each issued pursuant to the Existing Note Purchase Agreement,
dated October 1, 2007.
Expiration Date
has the meaning specified in Section 4.04(e).
Form of Assignment and Transfer
means the Form of Assignment and Transfer attached as
Attachment 3 to the Form of Note attached hereto as Exhibit A.
Form of Fundamental Change Purchase Notice
means the Form of Fundamental Change Purchase
Notice attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.
Form of Notice of Conversion
means the Form of Notice of Conversion attached as Attachment
1 to the Form of Note attached hereto as Exhibit A.
6
Fundamental Change
shall be deemed to have occurred at the time after the Notes are
originally issued if any of the following occurs:
(1) a person or group within the meaning of Section 13(d) of the Exchange Act, other than
the Company, its Subsidiaries and its and their respective employee benefit plans, files a Schedule
TO or any schedule, form or report under the Exchange Act disclosing that such person or group has
become, or the Company acquires knowledge based upon a public announcement by such a person or
group, that such a person or group has become, the direct or indirect beneficial owner, as
defined in Rule 13d-3 under the Exchange Act, of the Companys Common Equity representing more than
50% of the voting power of the Companys Common Equity;
(2) consummation of (i) any recapitalization, reclassification or change of the Common Stock
(other than changes resulting from a subdivision or combination) as a result of which the Common
Stock would be converted into, or exchanged for, stock, other securities, other property or assets
or (ii) any share exchange, consolidation or merger pursuant to which the Common Stock will be
converted into cash, securities or other property or assets, or any sale, conveyance, transfer,
lease or other disposition, in one transaction or a series of transactions, of all or substantially
all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any person
other than the Company or one of its Subsidiaries;
provided, however
, that a transaction (1) as a
result of which the holders of all classes of the Companys Common Equity immediately prior to such
transaction will own, directly or indirectly, more than 50% of all classes of Common Equity of the
continuing or surviving corporation or limited liability company (that is treated as a corporation
for U.S. federal income tax purposes) or transferee or a direct or indirect parent thereof
immediately after such transaction or (2) which is effected solely to change the Companys
jurisdiction of incorporation into a jurisdiction within the U.S. and results in reclassification,
conversion or exchange of outstanding Common Stock solely into shares of common stock of the
surviving entity or a direct or indirect parent thereof, shall not be a Fundamental Change;
provided further
, that, for the avoidance of doubt, the sale, conveyance, transfer, lease or other
disposition, in one transaction or a series of transactions, of all or substantially all of the
assets of the Companys Commercial and/or Aerospace segments (as such terms are defined in the
Companys condensed consolidated financial statements for the six months ended June 27, 2010) shall
not be a Fundamental Change;
(3) the Companys stockholders approve any plan or proposal for the liquidation or dissolution
of the Company; or
(4) the Common Stock (or other common stock issuable upon conversion) ceases to be listed or
quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global
Market (or any of their respective successors).
A Fundamental Change as a result of clause (1), (2) or (4) above will not be deemed to have
occurred, however, in connection with any transaction or transactions described in clause (1) or
clause (2) pursuant to which at least 90% of the consideration (excluding cash payments for
fractional shares and cash payments made pursuant to dissenters appraisal rights and cash
dividends) received or to be received by holders of Common Stock in connection with such
transaction or transactions consists of shares of common stock or equivalent Common Equity
7
that are
listed or quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the
NASDAQ Global Market (or any of their respective successors) or will be so listed or quoted when
issued or exchanged in connection with such transaction or transactions and as a result of this
transaction or transactions the notes become convertible based on such consideration pursuant to
the Section 4.07 and subject to Section 4.03.
Fundamental Change Company Notice
has the meaning specified in Section 3.01(b).
Fundamental Change Purchase Date
has the meaning specified in Section 3.01(a).
Fundamental Change Purchase Notice
has the meaning specified in Section 3.01(a)(1).
Fundamental Change Purchase Price
has the meaning specified in Section 3.01(a).
Fundamental Change Expiration Time
has the meaning specified in Section 3.01(a)(1).
GAAP
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect on the date of this Supplemental Indenture.
Global Note
means any Note that is a Global Security.
Guarantee
of or by any person means any obligation, contingent or otherwise, of the
guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other person (the primary obligor) in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof;
(2) to purchase or lease property, securities or services for the purpose of assuring the
owner of such Indebtedness or other obligation of the payment thereof;
(3) to maintain working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation; or
(4) as an account party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation;
provided
, that the term Guarantee will not include endorsements for collection or deposit in
the ordinary course of business. In any computation of the Indebtedness or other
8
liabilities of
the obligor under any Guarantee, the Indebtedness or other obligations that are the subject of such
Guarantee will be assumed to be direct obligations of such obligor.
Hedging Obligations
means, with respect to any specified person, the obligations
of such person under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements;
(2) other agreements or arrangements designed to manage interest rates or interest rate
risk; and
(3) commodity swap agreements, commodity cap agreements, commodity collar agreements,
foreign exchange contracts, currency swap agreements or any other agreements or arrangements
designed to protect such person against fluctuations in, or providing for the transfer or
mitigation of risks related to, currency exchange rates or commodity prices, in each case,
either generally or under specific contingencies.
For the avoidance of doubt, no obligation of any specified person under any Permitted
Convertible Indebtedness Call Transaction will constitute a Hedging Obligation with respect to such
person.
Holder
means a person in whose name a Note is registered.
Indebtedness
of any person means, any indebtedness of such person (excluding accrued
expenses and commercial letters of credit, trade payables or similar obligations to a trade
creditor accrued in the ordinary course of business), whether or not contingent, without
duplication:
(1) all Obligations of such person for borrowed money (including, without limitation,
any such obligations convertible into Capital Stock or other securities);
(2) all Obligations of such person evidenced by bonds, debentures, notes or similar
instruments or letters of credit (or, without duplication, reimbursement agreements in
respect thereof);
(3) all Obligations of such person in respect of the deferred and unpaid purchase price
of any property or services due more than six months after such property is acquired or such
services are completed, except any earn-out obligations until such obligation becomes a
liability on the balance sheet of such person in accordance with GAAP and if not paid after
becoming due and payable (excluding current accounts payable incurred in the ordinary course
of business);
(4) all Indebtedness 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;
9
(5) all Guarantees by such person of Indebtedness of others;
(6) all Capital Lease Obligations of such person;
(7) all obligations, contingent or otherwise, of such person as an account party in
respect of letters of credit and letters of guaranty;
(8) all obligations, contingent or otherwise, of such person in respect of bankers
acceptances; and
(9) representing any Hedging Obligations.
For the avoidance of doubt, no indebtedness of any person under any Permitted Convertible
Indebtedness Call Transaction will constitute Indebtedness of such person. 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 liable therefor as a result of such
persons 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.
Indenture
means the Original Indenture, as originally executed and as supplemented from time
to time by one or more indentures supplemental thereto, including this Supplemental Indenture,
entered into pursuant to the applicable provisions of the Indenture, including, for all purposes of
this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern the Original Indenture, this Supplemental Indenture and any
other such supplemental indenture, respectively.
Initial Notes
has the meaning specified in Section 2.01.
Interest Payment Date
means, with respect to the payment of interest on the Notes, each
February 1 and August 1 of each year.
Issue Date
means, with respect to the Notes, August 9, 2010.
Last Reported Sale Price
of the Common Stock on any date means:
(1) the closing sale price per share (or if no closing sale price is reported, the average of
the bid and ask prices or, if more than one in either case, the average of the average bid and the
average ask prices) on that date as reported in composite transactions for the principal U.S.
national or regional securities exchange on which the Common Stock is traded;
(2) if the Common Stock is not listed for trading on a U.S. national or regional securities
exchange on the relevant date, the Last Reported Sale Price shall be the last quoted
bid price for the Common Stock in the over-the-counter market on the relevant date as reported
by Pink OTC Markets Inc. or a similar organization; or
(3) if the Common Stock is not so quoted, the Last Reported Sale Price shall be as
determined by a nationally recognized independent investment banking firm selected
10
by the Company
for this purpose. The Last Reported Sale Price of the Common Stock will be determined without
reference to early hours, after hours or extended market trading.
Make-Whole Fundamental Change
means any transaction or event that constitutes a Fundamental
Change, determined after giving effect to any exceptions or exclusions to such definition,
including without limitation the first full paragraph immediately following clause (4) of the
definition thereof, but without regard to the first
proviso
in clause (2) of the definition
thereof.
Market Disruption Event
means:
(1) for purposes of determining amounts due upon conversion pursuant to Section 4.03, (x) a
failure by the primary U.S. national or regional securities exchange or market on which the Common
Stock is listed or admitted to trading to open for trading during its regular trading session or
(y) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading
Day for the Common Stock for more than a one half-hour period in the aggregate during regular
trading hours of any suspension or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by the relevant securities exchange or otherwise) in the Common Stock or
in any options, contracts or future contracts relating to the Common Stock and
(2) for all other purposes, if the Common Stock is listed for trading on the New York Stock
Exchange or another U.S. national or regional securities exchange, the occurrence or existence
during the one-half hour period ending on the scheduled close of trading on any Trading Day of any
material suspension or limitation imposed on trading (by reason of movements in price exceeding
limits permitted by the stock exchange or otherwise) in the Common Stock or in any options,
contracts or future contracts relating to the Common Stock.
Measurement Period
has the meaning specified in Section 4.01(b)(2).
Merger Common Stock
has the meaning specified in Section 4.07(c)(1).
Merger Event
has the meaning specified in Section 4.07(a).
Merger Valuation Percentage
has the meaning specified in Section 4.07(d)(1).
Merger Valuation Period
has the meaning specified in Section 4.07(d)(2).
Minimum Holder
has the meaning specified in Section 4.01(b)(2).
Nonpayment Default
has the meaning specified in Section 10.03(a)(2).
Note
or
Notes
has the meaning specified in the fourth paragraph of the recitals of this
Supplemental Indenture, and shall include any Additional Notes issued pursuant to Section 2.01.
11
Obligations
means any principal, interest, penalties, fees, premiums, make whole amounts,
indemnifications, reimbursements, damages and other costs, expenses and liabilities payable under
the documentation governing any Indebtedness.
open of business
means 9:00 a.m., New York City time.
Original Indenture
has the meaning specified in the first paragraph of this Supplemental
Indenture.
Outstanding
with respect to the Notes, has the meaning specified in Section 2.9 of the
Original Indenture with respect to Securities outstanding, as modified by Section 2.04 and
Section 3.04.
Paying Agent
has the meaning set forth in the Original Indenture, which shall initially be
the Trustee, and shall be the person authorized by the Company to pay the principal amount of,
interest on, or Fundamental Change Purchase Price of, any Notes on behalf of the Company.
Payment Blockage Notice
has the meaning specified in Section 10.03(a)(2).
Payment Default
has the meaning specified in Section 10.03(a)(1).
Permitted Convertible Indebtedness Call Transaction
means (i) any call or capped option (or
substantively equivalent derivative transaction) on Common Stock purchased by the Company or one of
its Subsidiaries in connection with the issuance of the Notes (a
Permitted Bond Hedge
Transaction
); and (ii) any call option, warrant or right to purchase (or substantively equivalent
derivative transaction) on Common Stock sold by the Company substantially concurrently with any
purchase of a related Permitted Bond Hedge Transaction (a
Permitted Warrant Transaction
).
Physical Notes
means certificated Notes that are not in global form and are registered in
the name of the Holder and issued in denominations of $1,000 principal amount and multiples
thereof.
Physical Settlement
has the meaning specified in Section 4.03(a).
Register
has the meaning specified in Section 2.4 of the Original Indenture with respect to
the register with respect to the Notes.
Regular Record Date
means, with respect to the payment of interest on the Notes, the January
15 (whether or not a Business Day) immediately preceding an Interest Payment Date on February 1 and
the July 15 (whether or not a Business Day) immediately preceding an Interest Payment Date on
August 1.
Reference Property
has the meaning specified in Section 4.07(a).
Representative
means the indenture trustee or other trustee, agent or representative for any
Senior Indebtedness;
provided
that, if no Representative has been appointed under the instrument
governing any series of Senior Indebtedness, any holder or group of holders of such
12
series of
Senior Indebtedness certifying that it holds a percentage of such series of Designated Senior
Indebtedness sufficient to cause the acceleration thereof will be deemed a Representative.
Scheduled Trading Day
means a day that is scheduled to be a Trading Day on the principal
U.S. national securities exchange or market on which the Common Stock is listed or admitted for
trading. If the Common Stock is not so listed or admitted for trading, Scheduled Trading Day
means a Business Day.
Senior Indebtedness
means:
(1) all Indebtedness of the Company outstanding under the Credit Facilities, all
Existing Senior Notes, all Hedging Obligations, all Treasury Management Arrangements and all
Obligations with respect to any of the foregoing;
(2) any other Indebtedness of the Company permitted to be incurred under the terms of
this Supplemental Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of payment to the
Notes; and
(3) all Obligations with respect to the items listed in the preceding clauses (1) and
(2).
Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness will not include:
(1) any liability for federal, state, local or other taxes owed or owing by the
Company;
(2) any intercompany Indebtedness of the Company or any of its Subsidiaries to the
Company or any of its Affiliates;
(3) any Indebtedness incurred for the purchase of goods or materials or for services
obtained in the ordinary course of business (other than with the proceeds of revolving
credit borrowings permitted hereby); or
(4) the portion of any Indebtedness that is incurred in violation of this Supplemental
Indenture;
provided
that Indebtedness under Designated Senior Indebtedness will not cease to
be Senior Indebtedness by virtue of this clause (4) if it was advanced on the basis of an
Officers Certificate to the effect that it was permitted to be incurred under this
Supplemental Indenture.
Settlement Amount
has the meaning specified in Section 4.03(a)(2).
Settlement Election
has the meaning specified in Section 4.03(a)(1).
Settlement Election Notice
has the meaning specified in Section 4.03(a)(1).
Settlement Method
means, with respect to any conversion of Notes, Physical Settlement, Cash
Settlement or Combination Settlement, as elected by the Company.
13
Significant Subsidiary
means, with respect to any person, a Subsidiary of such person that
would constitute a significant subsidiary as such term is defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as in effect on the original date of
issuance of the Notes.
Specified Dollar Amount
means an amount of cash per $1,000 principal amount of converted
Note equal to $1,000;
provided
that, in the event of the delivery of any Settlement Election Notice
specifying a different Specified Dollar Amount pursuant to Section 4.03(a)(1), during the period
during which such Settlement Election Notice is effective, the Specified Dollar Amount shall be as
specified in such Settlement Election Notice.
Spin-Off
has the meaning specified in Section 4.04(c).
Stated Maturity
means, with respect to any Note and the payment of the principal amount
thereof, August 1, 2017.
Stock Price
has the meaning specified in Section 4.06(c).
Subsidiary
means, with respect to any specified person:
(1) any corporation, association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the occurrence of any
contingency and after giving effect to any voting agreement or stockholders agreement that
effectively transfers voting power) to vote in the election of directors, managers or trustees of
the corporation, association or other business entity is at the time owned or controlled, directly
or indirectly, by that person or one or more of the other Subsidiaries of that person (or a
combination thereof); and
(2) any partnership or limited liability company of which (a) more than 50% of the capital
accounts, distribution rights, total equity and voting interests or general and limited partnership
interests, as applicable, are owned or controlled, directly or indirectly, by such person or one or
more of the other Subsidiaries of that person or a combination thereof, whether in the form of
membership, general, special or limited partnership interests or otherwise, and (b) such person or
any Subsidiary of such person is a controlling general partner or otherwise controls such entity.
Successor Company
has the meaning specified in Section 8.01(a).
Supplemental Indenture
has the meaning specified in the first paragraph hereof.
Trading Day
means:
(1) for purposes of determining amounts due upon conversion pursuant to Section 4.03 only, a
day on which (x) there is no Market Disruption Event (as defined in clause (1) of the definition
thereof) and (y) trading in the Common Stock generally occurs on the New
York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange,
on the principal other U.S. national or regional securities exchange on which the Common Stock is
then listed or, if the Common Stock is not then listed on a U.S. national or
14
regional securities
exchange, on the principal other market on which the Common Stock is then traded, except that if
the Common Stock (or other security for which a Daily VWAP must be determined) is not so listed or
traded, Trading Day means a Business Day; and
(2) for all other purposes, a day on which trading in the Common Stock generally occurs on the
New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange,
on the principal other U.S. national or regional securities exchange on which the Common Stock is
then listed or, if the Common Stock is not then listed on a U.S. national or regional securities
exchange, on the principal other market on which the Common Stock is then traded and there is no
Market Disruption Event (as defined in clause (2) of the definition thereof);
provided
that if the
Common Stock (or other security for which a closing sale price must be determined) is not so listed
or traded, Trading Day means a Business Day.
Trading Price
of the Notes on any date of determination means the average of the secondary
market bid quotations obtained by the Bid Solicitation Agent for $5.0 million principal amount of
the Notes at approximately 3:30 p.m., New York City time, on such determination date from three
independent nationally recognized securities dealers selected by the Company;
provided
that if
three such bids cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are
obtained, then the average of the two bids shall be used, and if only one such bid can reasonably
be obtained by the Bid Solicitation Agent, that one bid shall be used. If the Bid Solicitation
Agent cannot reasonably obtain at least one bid for $5.0 million principal amount of the Notes from
a nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of
Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the
Common Stock and the applicable Conversion Rate on such Trading Day.
Trading Price Condition
has the meaning specified in Section 4.01(b)(2).
Treasury Management Arrangement
means any agreement or other arrangement governing the
provision of treasury or cash management services, including deposit accounts, overdraft, credit or
debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check
concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade
finance services and other cash management services.
Trigger Event
has the meaning specified in Section 4.04(c).
Trustee
has the meaning set forth in the first paragraph of this Supplemental Indenture.
Underwriters
means Goldman, Sachs & Co.; Jefferies & Company Inc.; Morgan Stanley & Co.
Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated; and J.P. Morgan Securities Inc.
unit of Reference Property
has the meaning specified in Section 4.07(a).
U.S.
means the United States of America.
Valuation Period
has the meaning specified in Section 4.04(c).
15
Voting Stock
of any specified person as of any date means the Capital Stock of such person
that is at the time entitled to vote in the election of the Board of Directors of such person.
Section 1.03
References to Interest
. Any reference to interest on, or in respect of, any Note in the Indenture shall be deemed
to include Additional Interest if, in such context, Additional Interest is, was or would be payable
pursuant to Section 5.03. Any express mention of the payment of Additional Interest in any
provision hereof shall not be construed as excluding Additional Interest in those provisions hereof
where such express mention is not made.
ARTICLE 2.
THE SECURITIES
Section 2.01
Title and Terms; Payments
. There is hereby established a Series of Securities designated the 3.875% Convertible
Senior Subordinated Notes due 2017 initially limited in aggregate principal amount to
$400,000,000, which amount shall be as set forth in a Company Order for the authentication and
delivery of Notes pursuant to Section 2.3 of the Original Indenture.
The principal amount of Notes then Outstanding shall be payable at the Stated Maturity.
Interest on the Notes shall accrue at a rate of 3.875% per annum, from the Issue Date or from the
most recent date on which interest has been paid or duly provided for, until the principal thereof
is paid or made available for payment. Interest shall be payable semi-annually in arrears on each
Interest Payment Date, beginning on February 1, 2011, to the person in whose name a Note is
registered on the Register at the close of business on the Regular Record Date immediately
preceding the applicable Interest Payment Date. Interest will be computed on the basis of a
360-day year composed of twelve 30-day months. The Notes will not have the benefit of Article XIII
of the Original Indenture.
The Company may, at its election and without notice to or the consent of the Holders of the
Notes, hereafter issue additional notes (
Additional Notes
) under the Indenture with the same
terms and with the same CUSIP numbers as the Notes issued on the date of this Supplemental
Indenture (the
Initial Notes
) in an unlimited aggregate principal amount. The Notes and such
Additional Notes, if any, will be treated as a single class for all purposes of the Indenture,
including waivers, amendments and offers to purchase;
provided
that, if any such Additional Notes
subsequently issued are not fungible for U.S. federal income tax purposes or securities law
purposes with any Notes previously issued, such Additional Notes shall trade separately from such
previously issued Notes under a separate CUSIP number but shall otherwise be treated as a single
class with all other Notes issued under the Indenture.
The Form of Note shall be substantially as set forth in Exhibit A and the Form of Notice of
Conversion, the Form of Fundamental Change Purchase Notice and the Form of Assignment
and Transfer shall be substantially as set forth in Attachments 1, 2 and 3, respectively, to
Exhibit A, each of which is incorporated into and shall be deemed a part of this Supplemental
Indenture, and in each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by the Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may, consistently herewith, be determined to
be
16
necessary or appropriate by the Officers of the Company executing such Notes, as evidenced by
their execution of the Notes.
The Company shall pay the principal of and interest on any Global Note in immediately
available funds to the Depository or its nominee, as the case may be, as the registered Holder of
such Global Note. The Company shall pay the principal of and interest on any Physical Notes at the
office or agency designated by the Company for that purpose, unless a Holder timely requests to
have such amounts paid by wire transfer in accordance with the final three sentences of this
paragraph, in which case the Company shall instead pay such principal of and interest on any
Physical Notes by wire transfer in accordance with the transfer instructions provided in such
request. The Company has initially designated the Trustee as its Paying Agent and its Registrar in
respect of the Notes and its agency in New York City as a place where Notes may be presented for
payment or for registration of transfer. The Company may, however, change the Paying Agent or the
Registrar for the Notes without prior notice to the Holders thereof, and the Company or one of its
wholly owned Subsidiaries may act as the Paying Agent or the Registrar for the Notes. Payments on
any Physical Notes having a principal amount of at least $10,000,000 shall be payable, if the
Holder of such Physical Notes so requests in accordance with the two immediately succeeding
sentences, by wire transfer of immediately available funds to an account specified by the Holder at
a bank in New York City, New York. To request payment by wire transfer, the Holder must give
appropriate transfer instructions to the Trustee or other Paying Agent (if not the Trustee) at
least 15 Business Days before the requested wire payment is due and, in the case of any interest
payments, the instructions must be given by the person who is shown on the Trustees records as the
Holder of the Physical Note on the applicable Regular Record Date. All applications for payment by
wire transfer shall remain in effect unless and until new instructions are given in the manner
described in the immediately preceding sentence.
A Holder may transfer or exchange Notes at the office of the Registrar in accordance with
Section 2.7 of the Original Indenture. The Company is not required to transfer or exchange any
Note surrendered for conversion pursuant to Section 4.01(b).
Section 2.02
Book-Entry Provisions for Global Notes.
(a) The Notes initially shall be issued in the form of one or more Global Notes without
interest coupons (i) registered in the name of Cede & Co., as nominee of the Depository and
(ii) delivered to the Trustee as custodian for the Depository.
Members of, or participants in, the Depository (
Agent Members
) shall have no rights under
this Supplemental Indenture or the Original Indenture with respect to any Global Note held on their
behalf by the Depository, or the Trustee as its custodian, or under the Global Note, and Cede &
Co., or such other person designated by the Depository as its nominee, may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of
the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depository or impair, as
between the Depository and its Agent Members, the operation of customary practices governing the
exercise of the rights of any Holder.
17
(b) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to
the Depository, its successors or their respective nominees. Notwithstanding anything to the
contrary in Section 2.7 of the Original Indenture, interests of beneficial owners in a Global
Note may be transferred or exchanged, in whole or in part, for Physical Notes, only if:
(1) the Depository notifies the Company at any time that the Depository is unwilling or unable
to continue as Depository for the Global Notes and a successor Depository is not appointed within
60 days;
(2) the Depository ceases to be registered as a clearing agency under the Exchange Act and a
successor Depository is not appointed within 60 days; or
(3) an Event of Default with respect to the Notes has occurred and is continuing and such
beneficial owner requests that its Notes be issued as Physical Notes,
in each case in accordance with the rules and procedures of the Depository. Other than as set
forth in this Section 2.02(b), the Notes shall remain in global form as Global Notes.
(c) In connection with any transfer or exchange of a portion of the beneficial interest
in the Global Note to beneficial owners pursuant to Section 2.7 of the Original Indenture, as
modified by this Section 2.02, the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the principal amount of
the Global Note in an amount equal to the principal amount of the beneficial interest in the
Global Note to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and amount in accordance
with Section 2.7 of the Original Indenture, as modified by this Section 2.02.
(d) In connection with the transfer of the entire Global Note to beneficial owners
pursuant to Section 2.7 of the Original Indenture, as modified by this Section 2.02, the
Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the Global Note, an
equal aggregate principal amount of Physical Notes of authorized denominations and the same
tenor.
(e) The Holder of Global Notes may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent Members, to take any
action that a Holder is entitled to take under this Supplemental Indenture, Original Indenture
or the Notes.
Section 2.03
Reporting Requirement
. For purposes of Section 4.4 of the Original Indenture, (i) Clause (i) of Section 4.4(a)
shall not apply and the applicable date set forth in clause (ii) of such Section 4.4(a) shall give
effect to any grace period provided by Rule 12b-25 under the Exchange Act and (ii) documents filed
by the Company with the Commission via the Commissions EDGAR system shall be deemed to be filed
with the Trustee as of the time
18
such documents are filed via the Commissions EDGAR system. For
the Trustees administrative convenience, the Company shall notify the Trustee by email of such
filing.
Section 2.04
Repurchase and Cancellation
. To the extent permitted by law, the Company may at any time and from time to time
repurchase Notes in open market purchases or by tender at any price or in negotiated transactions
without giving prior notice to Holders. The Company shall surrender any Notes repurchased by the
Company to the Trustee for cancellation in accordance with Section 2.12 of the Original Indenture
and any such Notes repurchased by the Company shall be deemed to be no longer Outstanding. Any
Notes surrendered for cancellation by the Company shall not be reissued or resold.
ARTICLE 3.
FUNDAMENTAL CHANGES AND PURCHASES THEREUPON
Section 3.01
Purchase at Option of Holders Upon a Fundamental Change
. (a) If a Fundamental Change occurs at any time prior to the Stated Maturity, then
each Holder of Notes shall have the right, at such Holders option, to require the Company to
purchase for cash any or all of such Holders Notes, or any portion of the principal amount
thereof, that is equal to $1,000 or an integral multiple of $1,000, on a date (the
Fundamental Change Purchase Date
) specified by the Company that is not less than 20 calendar
days or more than 35 calendar days following the date of the Fundamental Change Company
Notice, at a purchase price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest thereon, if any, to, but excluding, the Fundamental Change Purchase Date (the
Fundamental Change Purchase Price
);
provided
,
however
, that if the Fundamental Change
Purchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to
which such Regular Record Date relates, the Company shall instead pay the full amount of
accrued and unpaid interest on the Interest Payment Date to the Holders of record as of the
preceding Regular Record Date.
Purchases of Notes under this Section 3.01 shall be made, at the option of the Holder thereof,
upon:
(1) delivery to the Paying Agent by a Holder of a duly completed notice (the
Fundamental
Change Purchase Notice
) in the form set forth in Attachment 2 to the Form of Note attached hereto
as Exhibit A (if the Notes are Physical Notes) or in compliance with the Depositorys procedures
for tendering interests in Global Notes (if the Notes are Global Notes)
in each case before the close of business on the Business Day immediately preceding the
Fundamental Change Purchase Date (the
Fundamental Change Expiration Time
); and
(2) delivery of the Notes, in the case of Physical Notes, to the Paying Agent appointed by the
Company (together with all necessary endorsements for transfer), or book-entry transfer of the
Notes, in compliance with the procedures of the Depository, such delivery or transfer being a
condition to receipt by the Holder of the Fundamental Change Purchase Price therefor.
The Fundamental Change Purchase Notice in respect of any Notes to be purchased shall state:
19
(1) if such Notes are Physical Notes, the certificate numbers of such Notes;
(2) the portion of the principal amount of such Notes, which must be $1,000 or an integral
multiple thereof; and
(3) that such Notes are to be purchased by the Company pursuant to the applicable provisions
of the Notes and this Supplemental Indenture;
provided, however
, that if such Notes are Global Notes, the Fundamental Change Purchase Notice must
also comply with appropriate procedures of the Depository;
provided
,
further
that that if Physical
Notes have not been issued, the Fundamental Change Purchase Notice must comply with appropriate
procedures of the Depository.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 3.01 shall have the right to
withdraw, in whole or in part, such Fundamental Change Purchase Notice at any time prior to the
Fundamental Change Expiration Time by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 3.03.
The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental
Change Purchase Notice or written notice of withdrawal thereof.
(b) On or before the 20th calendar day after the occurrence of a Fundamental Change, the
Company shall provide to all Holders of the Notes, the Trustee and the Paying Agent (in the
case of any Paying Agent other than the Trustee) a notice (the
Fundamental Change Company
Notice
) of the occurrence of such Fundamental Change and of the purchase right at the option
of the Holders arising as a result thereof. Such notice shall be sent by first class mail or,
in the case of any Global Notes, in accordance with the procedures of the Depository for
providing notices. Simultaneously with providing such Fundamental Change Company Notice, the
Company shall make a press release and publish such information on the Companys website or
through such other public medium as the Company may use at such time.
Each Fundamental Change Company Notice shall specify:
(1) the events causing the Fundamental Change;
(2) the date of the Fundamental Change;
(3) the last date on which a Holder of Notes may exercise the purchase right pursuant to this
Article 3;
(4) the Fundamental Change Purchase Price;
(5) the Fundamental Change Purchase Date;
(6) the name and address of the Paying Agent and the Conversion Agent, if applicable;
20
(7) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(8) that the Notes with respect to which a Fundamental Change Purchase Notice has been
delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Purchase
Notice in accordance with this Supplemental Indenture;
(9) that the Holder must exercise the purchase right prior to the Fundamental Change
Expiration Time;
(10) that the Holder shall have the right to withdraw any Notes surrendered for purchase prior
to the Fundamental Change Expiration Time; and
(11) the procedures that Holders must follow to require the Company to purchase their Notes.
No failure of the Company to give the foregoing notices and no defect therein shall limit the
purchase rights of the Holders of Notes or affect the validity of the proceedings for the purchase
of the Notes pursuant to this Section 3.01.
(c) Notwithstanding the foregoing, there shall be no purchase of any Notes pursuant to
this Section 3.01 if the principal amount of the Notes has been accelerated, and such
acceleration has not been rescinded, on or prior to the Fundamental Change Purchase Date
(except in the case of an acceleration resulting from a Default by the Company in the payment
of the Fundamental Change Purchase Price with respect to such Notes). The Paying Agent will
promptly return to the respective Holders thereof any Physical Notes held by it during the
acceleration of the Notes (except in the case of an acceleration resulting from a Default by
the Company in the payment of the Fundamental Change Purchase Price with respect to such
Notes) and shall deem to be cancelled any instructions for book-entry transfer of the Notes in
compliance with the procedures of the Depository, in which case, upon such return or
cancellation, as the case may be, the Fundamental Change Purchase Notice with respect thereto
shall be deemed to have been withdrawn.
Section 3.02
Effect of Fundamental Change Purchase Notice
. Upon receipt by the Paying Agent of a Fundamental Change Purchase Notice specified in
Section 3.01, the Holder of the Note in respect of which such Fundamental Change Purchase Notice
was given shall (unless such Fundamental Change Purchase Notice is withdrawn in accordance with
Section 3.03) thereafter be entitled to receive solely the Fundamental Change Purchase Price in
cash with respect to such Note. Such Fundamental Change Purchase Price shall be paid to such
Holder, subject to receipt of funds by the Paying Agent, on the later of (x) the applicable
Fundamental Change Purchase Date (provided the conditions in Section 3.01 have been satisfied) and
(y) the time of delivery or book-entry transfer of such Note to the Paying Agent by the Holder
thereof in the manner required by Section 3.01.
Section 3.03
Withdrawal of Fundamental Change Purchase Notice
. A Fundamental Change Purchase Notice may be withdrawn (in whole or in part) by means of a
written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental
21
Change Company Notice at any time prior to the Fundamental Change Expiration Time, specifying:
(1) the principal amount of the Notes with respect to which such notice of withdrawal is being
submitted;
(2) if Physical Notes have been issued, the certificate numbers of the withdrawn Notes; and
(3) the principal amount, if any, of such Notes that remains subject to the original
Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an
integral multiple of $1,000;
provided, however
, that if Physical Notes have not been issued, the notice must comply with
appropriate procedures of the Depository.
The Paying Agent will promptly return to the respective Holders thereof any Physical Notes
with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with
the provisions of this Section 3.03.
Section 3.04
Deposit of Fundamental Change Purchase Price
. Prior to 11:00 a.m., New York City time on the Fundamental Change Purchase Date, the
Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as the Paying Agent, shall segregate and hold in trust as provided herein)
an amount of money (in immediately available funds if deposited on such Business Day) sufficient to
pay the Fundamental Change Purchase Price of all the Notes or portions thereof that are to be
purchased as of the Fundamental Change Purchase Date. If the Paying Agent holds cash sufficient to
pay the Fundamental Change Purchase Price of the Notes for which a Fundamental Change Purchase
Notice has been tendered and not withdrawn in accordance with this Supplemental Indenture on the
Fundamental Change Purchase Date, then as of such Fundamental Change Purchase Date, (a) such Notes
will cease to be Outstanding and interest will cease to accrue thereon (whether or not book-entry
transfer of such Notes is made or such Notes have been delivered to the Paying Agent) and (b) all
other rights of the Holders in
respect thereof will terminate (other than the right to receive the Fundamental Change
Purchase Price upon delivery or book-entry transfer of such Notes).
Section 3.05
Notes Purchased in Whole or in Part
. Any Note that is to be purchased, whether in whole or in part, shall be surrendered at the
office of the Paying Agent (with, if the Company or the Trustee so requires in the case of Physical
Notes, due endorsement by, or a written instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or such Holders attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder
of such Note, without service charge, a new Note or Notes, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion
of the principal amount of the Note so surrendered that is not purchased.
Section 3.06
Covenant to Comply With Applicable Laws Upon Purchase of Notes
. In connection with any offer to purchase Notes under Section 3.01, the Company shall,
22
in
each case if required, (i) comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules
under the Exchange Act that may then be applicable, (ii) file a Schedule TO or any other required
schedule under the Exchange Act and (iii) otherwise comply with all federal and state securities
laws, in each case, so as to permit the rights and obligations under Section 3.01 to be exercised
in the time and in the manner specified in Section 3.01.
Section 3.07
Repayment to the Company
. To the extent that the aggregate amount of cash deposited by the Company pursuant to
Section 3.04 exceeds the aggregate Fundamental Change Purchase Price of the Notes or portions
thereof that the Company is obligated to purchase as of the Fundamental Change Purchase Date, then,
following the Fundamental Change Purchase Date, the Paying Agent shall promptly return any such
excess to the Company.
ARTICLE 4.
CONVERSION
Section 4.01
Right to Convert
. (a) Subject to and upon compliance with the provisions of this Article 4, each
Holder of Notes shall have the right, at such Holders option, to convert the principal amount
of any such Notes, or any portion of such principal amount equal to $1,000 or an integral
multiple thereof, at the Conversion Rate then in effect (subject to the settlement provisions
set forth in Section 4.03, the
Conversion Obligation
) (x) prior to the close of business on
the Business Day immediately preceding May 1, 2017, only upon satisfaction of one or more of
the conditions described in Section 4.01(b) and (y) on or after May 1, 2017, at any time prior
to the close of business on the second Scheduled Trading Day immediately preceding the Stated
Maturity.
(b) (1) The Notes may be surrendered for conversion during any fiscal quarter (and only
during such fiscal quarter) commencing after September 26, 2010, if the Last Reported Sale
Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the
period of 30 consecutive Trading Days ending on the last Trading Day of the immediately
preceding fiscal quarter is greater than 130% of the applicable Conversion Price on each
applicable Trading Day. The Company shall determine at the beginning of each fiscal quarter
commencing after September 26, 2010 whether the Notes may be surrendered for conversion in
accordance with this clause (1) and shall notify the Company and the Trustee (in the case of a
Conversion Agent other than the Trustee) if the Notes become convertible in accordance with
this clause (1).
(2) The Notes may be surrendered for conversion during the five Business Day period after any
five consecutive Trading Day period (the
Measurement Period
) in which the Trading Price per
$1,000 principal amount of Notes, as determined following a request by a Holder of at least $1.0
million aggregate principal amount of Notes (a
Minimum Holder
) in accordance with the procedures
set forth in this clause (2), for each Trading Day of such Measurement Period was less than 98% of
the product of the Last Reported Sale Price of the Common Stock on such Trading Day and the
applicable Conversion Rate on such Trading Day (the
Trading Price Condition
). The Trading Prices
shall be determined by the Bid Solicitation Agent pursuant to this clause (2) and the definition of
Trading Price set forth in Section 1.02. The Company shall provide written notice to the Bid
Solicitation Agent (if other
23
than the Company) of the three independent nationally recognized
securities dealers selected by the Company in accordance with the definition of Trading Price,
along with appropriate contact information for each. The Bid Solicitation Agent (if other than the
Company) shall have no obligation to determine the Trading Price of the Notes in accordance with
this clause (2) unless requested by the Company, and the Company shall have no obligation to make
such request unless a Minimum Holder provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the
Last Reported Sale Price of the Common Stock and the applicable Conversion Rate, at which time the
Company shall instruct the Bid Solicitation Agent to determine (or, if the Company is then acting
as Bid Solicitation Agent, the Company shall determine) the Trading Price of the Notes beginning on
the next Trading Day following the receipt of such evidence and on each successive Trading Day
until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the
product of the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate. If
the Company does not so instruct the Bid Solicitation Agent to obtain (or, if the Company is then
acting as Bid Solicitation Agent, the Company does not obtain) bids when required, then the Trading
Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of
the Last Reported Sale Price of the Common Stock and the applicable Conversion Rate on each day the
Company fails to do so. If the Trading Price Condition has been met, the Company shall so notify
the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time
after the Trading Price Condition has been met, the Trading Price per $1,000 principal amount of
Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common
Stock on such Trading Day and the applicable Conversion Rate, the Company shall so notify the
Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(3) Prior to the close of business on the Business Day immediately preceding May 1, 2017, if
the Company elects to:
(a) issue to all or substantially all holders of the Common Stock rights, options or
warrants entitling them, for a period of not more than 45 calendar days after the date of
such issuance to subscribe for or purchase shares of the Common Stock, at a price per share
less than the average of the Last Reported Sale Prices of the Common Stock for the 10
consecutive Trading Day period ending on the Trading Day immediately preceding the date of
announcement of such issuance; or
(b) distribute to all or substantially all holders of the Common Stock the Companys
assets, debt securities or rights to purchase securities of the Company, which distribution
has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of
the Last Reported Sale Price of the Common Stock on, and including, the Trading Day
immediately preceding the date of announcement for such distribution,
then, in each case, the Company shall notify the Holders of the Notes at least 85 Scheduled Trading
Days prior to the Ex-Dividend Date for such issuance or distribution. The Company shall notify
Holders of any such issuance or distribution with Ex-Dividend Date on or after May 1, 2017 and on
or prior to August 1, 2017, at least 85 Scheduled Trading Days prior to such Ex-Dividend Date.
Once the Company has given such notice, a Holder may surrender all or a
24
portion of its Notes for
conversion at any time until the earlier of (x) the close of business on the Business Day
immediately preceding such Ex-Dividend Date and (y) the Companys announcement that such issuance
or distribution will not take place. A Holder may not convert any Notes based on this Section
4.01(b)(3) if such Holder of the Notes participates, at the same time and upon the same terms as
holders of Common Stock and as a result of holding the Notes, in any of the transactions described
in this Section 4.01(b)(3) without having to convert its Notes as if it held a number of shares of
Common Stock equal to the applicable Conversion Rate
multiplied by
the principal amount (expressed
in thousands) of Notes held by such Holder.
(4) Prior to the close of business on the Business Day immediately preceding May 1, 2017, if:
(a) a Fundamental Change occurs;
(b) a Make-Whole Fundamental Change occurs; or
(c) the Company is a party to (i) a consolidation, merger or binding share exchange
pursuant to which the Common Stock would be converted into cash, securities or other assets
or (ii) a sale, conveyance, transfer or lease of all or substantially all of its assets, in
each case that does not constitute a Fundamental Change;
a Holder may surrender all or a portion of its Notes for conversion at any time from or after the
effective date of the transaction until 35 Trading Days immediately following such effective date,
or if such transaction also constitutes a Fundamental Change, until the related Fundamental Change
Purchase Date. The Company shall notify Holders and the Trustee as promptly as
practicable following the date on which the Company publicly announces such transaction
but in no event later than five Business Days after the effective date of such transaction.
Section 4.02
Conversion Procedures
. (a) Each Note shall be convertible at the office of the Conversion Agent and, if
applicable, in accordance with the procedures of the Depository.
(b) In order to exercise the conversion privilege with respect to a beneficial interest
in a Global Note, the Holder must complete the appropriate instruction form for conversion
pursuant to the Depositorys book-entry conversion program, furnish appropriate endorsements
and transfer documents if required by the Company or the Conversion Agent, and pay the funds,
if any, required by Section 4.03(c) and any taxes or duties if required pursuant to Section
4.08, and the Conversion Agent must be informed of the conversion in accordance with the
customary practice of the Depository. In order to exercise the conversion privilege with
respect to any Physical Notes, the Holder of any such Notes to be converted, in whole or in
part, shall:
(1) complete and manually sign a conversion notice in the form set forth in the Form of Notice
of Conversion (the
Conversion Notice
) or a facsimile of the Conversion Notice;
(2) deliver the Conversion Notice, which is irrevocable, and the Note to the Conversion Agent;
25
(3) if required, furnish appropriate endorsements and transfer documents,
(4) if required, make any payment required under Section 4.03(c); and
(5) if required, pay all transfer or similar taxes as set forth in Section 4.08.
The date on which the Holder satisfies all of the applicable requirements set forth above shall be
the
Conversion Date
with respect to such Notes surrendered for conversion. The Conversion Agent
will, as promptly as possible, and in any event within one Business Day of the receipt thereof,
provide the Company with notice of any conversion by a Holder of the Notes.
(c) Each Conversion Notice shall state the name or names (with address or addresses) in
which any certificate or certificates for shares of Common Stock which shall be issuable on
such conversion shall be issued. All such Notes surrendered for
conversion shall, unless the shares of Common Stock issuable on conversion are to be issued in the same name as the
registration of such Notes, be duly endorsed by, or be accompanied by instruments of transfer
in form satisfactory to the Company duly executed by, the Holder or its duly authorized
attorney.
(d) In case any Notes of a denomination greater than $1,000 shall be surrendered for
partial conversion, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of the Notes so surrendered, without charge, new Notes in authorized
denominations in an aggregate principal amount equal to the unconverted portion of the
surrendered Notes.
Each conversion shall be deemed to have been effected as to any such Notes (or portion
thereof) surrendered for conversion on the relevant Conversion Date; provided, however, that the
person in whose name the certificate for any shares of Common Stock delivered upon conversion is
registered shall be treated as a stockholder of record as of the close of business on the relevant
Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical
Settlement) or the last Trading Day of the applicable Cash Settlement Averaging Period, subject to
Section 4.04(h) (if the Company elects to satisfy the related Conversion Obligation by Combination
Settlement), as the case may be. Upon the Conversion Date of Notes surrendered for conversion,
such person shall no longer be a Holder with respect to such Notes.
(e) Upon the conversion of a beneficial interest in Global Notes, the Conversion Agent
shall make a notation in its records as to the reduction in the principal amount represented
thereby. The Company shall notify the Trustee in writing of any conversions of Notes effected
through any Conversion Agent other than the Trustee.
(f) Notwithstanding the foregoing, a Note in respect of which a Holder has delivered a
Fundamental Change Purchase Notice exercising such Holders right to require the Company to
purchase such Note may be converted only if such Fundamental Change Purchase Notice is
withdrawn in accordance with Section 3.03 prior to the relevant Fundamental Change Purchase
Expiration Time, except to the extent that a portion of such Holders Note is not subject to
such Fundamental Change Purchase Notice.
26
Section 4.03
Settlement Upon Conversion.
(a) Subject to this Section 4.03 and Section 4.06(b), upon conversion of any Note, the
Company may elect to deliver to Holders in full satisfaction of its Conversion Obligation in
respect of each $1,000 principal amount of Notes being converted:
cash (
Cash Settlement
), shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of
Common Stock in accordance with Section 4.03(d) (
Physical Settlement
) or a combination of
cash and shares of Common Stock, together with cash, if applicable, in lieu of any fractional
share of Common Stock in accordance with Section 4.03(d) (
Combination Settlement
).
(1) The Company shall from time to time make an election with respect to the Settlement Method
it chooses to satisfy its Conversion Obligation (a
Settlement Election
). Each Settlement Election
shall be effective until the Company provides a notice of a different Settlement Election (each
such notice, a
Settlement Election Notice
), and such different Settlement Election becomes
effective. The Company may not make a different Settlement Election after the 165
th
Scheduled Trading Day preceding the Stated Maturity. As of the date of this Supplemental Indenture,
the Company has made a Settlement Election of Combination Settlement with a Specified Dollar Amount
equal to $1,000. If the Company makes a different Settlement Election, the Company shall provide
to all Holders, the Trustee and the Conversion Agent a Settlement Election Notice with respect to
each Settlement Election specifying the newly chosen Settlement Method, the effective date of such
Settlement Election (which cannot
be earlier than the third Scheduled Trading Day following the delivery of such Settlement
Election Notice) and in the case of Combination Settlement, the Specified Dollar Amount. If the
Company makes a Settlement Election specifying Combination Settlement in respect of its Conversion
Obligation but does not specify a Specified Dollar Amount in the notice of such Settlement
Election, the Specified Dollar Amount shall be deemed to be equal to $1,000. Simultaneously with
providing such Settlement Election Notice, the Company shall issue a press release containing the
relevant information and make such information available on its website.
In addition, the Company may at any time irrevocably elect Combination Settlement with a
Specified Dollar Amount of $1,000;
provided, however
, that after the 165
th
Scheduled
Trading Day preceding the Stated Maturity, in no event may the Company make such irrevocable
election if such election would result in a different Settlement Method. The Company may make such
irrevocable election in its sole discretion without any consent of the Holders. If the Company
chooses to make this irrevocable election, the Company shall provided notice to all Holders, the
Trustee and the Conversion Agent. Simultaneously with providing such notice, the Company shall
issue a press release containing the relevant information and make this information available on
its website. Following such irrevocable election, the Company will not have the right to make a
different Settlement Election.
(2) The cash, shares of Common Stock or combination of cash and shares of Common Stock in
respect of any conversion of Notes (the
Settlement Amount
) shall be computed as follows:
(a) if the Company elects to satisfy its Conversion Obligation in respect of such
conversion by Physical Settlement, the Company shall deliver to the converting Holder a
number of shares of Common Stock per $1,000 principal amount of Notes being converted equal
to the applicable Conversion Rate together with cash, if
27
applicable, in lieu of fractional
share of Common Stock in accordance with Section 4.03(d);
(b) if the Company elects to satisfy its Conversion Obligation in respect of such
conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of
each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of
the Daily Conversion Values for each of the 80 consecutive Trading Days during the applicable
Cash Settlement Averaging Period; and
(c) if the Company elects to satisfy its Conversion Obligation in respect of such
conversion by Combination Settlement, the Company shall pay and deliver, as the case may be,
for each $1,000 principal amount of Notes being converted, an amount of cash and shares of
Common Stock equal to the sum of the Daily Settlement Amounts for each of the 80 consecutive
Trading Days during the applicable Cash Settlement Averaging Period, together with cash, if
applicable, in lieu of any fractional share of Common Stock in accordance with Section
4.03(d).
(3) The Company shall pay or deliver, as the case may be, the consideration due in respect of
its Conversion Obligation (i) on the third Business Day immediately following the applicable
Conversion Date, if the Company elects to satisfy its Conversion Obligation in
respect of such conversion by Physical Settlement;
provided
that for all such conversions
occurring on or after the Regular Record Date immediately preceding the Stated Maturity, the
Company shall deliver the shares of Common Stock on the Stated Maturity; and (ii) on the third
Business Day immediately following the last Trading Day of the applicable Cash Settlement Averaging
Period, if the Company elects to satisfy its Conversion Obligation in respect of such conversion by
Cash Settlement or Combination Settlement.
(b) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if
applicable) shall be determined by the Company promptly following the last day of the Cash
Settlement Averaging Period. Promptly after such determination of the Daily Settlement
Amounts or the Daily Conversion Values, as the case may be, and the amount of cash deliverable
in lieu of any fractional share in accordance with Section 4.03(d), the Company shall notify
the Trustee in writing and the Conversion Agent (if other than the Trustee) of the Daily
Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash
deliverable in lieu of fractional shares of Common Stock. The Trustee and the Conversion
Agents (if other than the Trustee) shall have no responsibility for any such determination.
(c) Upon the conversion of any Notes, the Holder of such Notes shall not be entitled to
receive any separate cash payment for accrued and unpaid interest, if any, except to the
extent specified below. The Companys delivery to the Holder of cash, shares of Common Stock,
or a combination of cash and shares of Common Stock, together with any cash payment for any
fractional share of Common Stock, if applicable, issuable upon conversion shall be deemed to
satisfy in full the Companys obligation to pay the principal amount of the Notes so converted
and accrued and unpaid interest, if any, to, but not including, the Conversion Date. As a
result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall
be deemed to be paid in full rather than cancelled,
28
extinguished or forfeited. Upon a
conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid
interest shall be deemed to be paid first out of any cash paid upon such conversion.
Notwithstanding the foregoing, if Notes are converted after the close of business on any
Regular Record Date and prior to the open of business on the immediately following Interest
Payment Date, Holders of such Notes at the close of business on such Regular Record Date shall
receive the interest payable on such Notes on the corresponding Interest Payment Date
notwithstanding the conversion. Notes surrendered for conversion during the period from the
close of business on any Regular Record Date to the open of business on the immediately
following Interest Payment Date must be accompanied by funds equal to the amount of interest
payable on the Notes so converted (whether or not the Holder was a Holder of record on such
Regular Record Date);
provided
that no such payment need be made on Notes converted:
(A) after the close of business on the Regular Record Date immediately preceding the Stated
Maturity,
(B) if the Company has specified a Fundamental Change Purchase Date that is after a Regular
Record Date and on or prior to the Business Day immediately following the corresponding Interest
Payment Date, or
(C) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of
conversion with respect to such Note.
(d) The Company shall not issue any fractional share of Common Stock upon conversion of
the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable
upon conversion based on (i) the Daily VWAP of the Common Stock on the relevant Conversion
Date (in the case of Physical Settlement) or (ii) the Daily VWAP on the last Trading Day of
the relevant Cash Settlement Averaging Period (in the case of Combination Settlement). For
each Note surrendered for conversion, if the Company has elected Combination Settlement, the
full number of shares that shall be issued upon conversion thereof shall be computed on the
basis of the aggregate Daily Settlement Amounts for the applicable Cash Settlement Averaging
Period and any fractional share remaining after such computation shall be paid in cash. In
addition, if more than one Note shall be surrendered for conversion at one time by the same
Holder, the number of full shares that shall be issued upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Notes (or specified portions
thereof) so surrendered.
Section 4.04
Adjustment of Conversion Rate.
The Conversion Rate shall be adjusted from time to time by the Company if any of the following
events occurs, except that the Company shall not make any adjustment to the Conversion Rate if
Holders of the Notes participate (other than in the case of a share split or share combination), at
the same time and upon the same terms as holders of the Common Stock and solely as a result of
holding the Notes, in any of the transactions described in this Section 4.04, without having to
convert their Notes, as if such Holders held a number of shares of Common Stock equal to the
applicable Conversion Rate,
multiplied
by the principal amount (expressed in thousands) of Notes
held by such Holder. If any dividend, distribution or issuance described in this Section 4.04 is
declared but not so paid or made, or any share split or combination described below in paragraph
(a) is announced but the
29
outstanding shares of Common Stock are not split or combined, as the case
may be, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of
Directors determines not to pay or make such dividend, distribution or issuance, or not to split or
combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that
would then be in effect if such dividend, distribution, issuance, share split or share combination
had not been declared or announced.
(a) If the Company exclusively issues to all or substantially all holders of the Common
Stock shares of Common Stock as a dividend or distribution on shares of Common Stock, or if
the Company effects a share split or share combination, the Conversion Rate shall be adjusted
based on the following formula:
where,
|
|
|
CR
0
=
|
|
the Conversion Rate in effect immediately prior to the open of business on
the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open
of business on the effective date of such share split or share combination, as
applicable;
|
|
|
|
CR
1
=
|
|
the Conversion Rate in effect immediately after the open of business on
such Ex-Dividend Date or such effective date;
|
|
|
|
OS
0
=
|
|
the number of shares of Common Stock outstanding immediately prior to the
open of business on such Ex-Dividend Date or such effective date; and
|
|
|
|
OS
1
=
|
|
the number of shares of Common Stock outstanding immediately after giving
effect to such dividend, distribution, share split or share combination.
|
Any adjustment made under this Section 4.04(a) shall become effective immediately after the
open of business on such Ex-Dividend Date or effective date.
(b) If the Company issues to all or substantially all holders of its Common Stock any
rights, options or warrants entitling them for a period of not more than 45 calendar days
after the date of such issuance to subscribe for or purchase shares of the Common Stock, at a
price per share less than the average of the Last Reported Sale Prices of the Common Stock for
the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement of such issuance, the Conversion Rate shall be increased
based on the following formula:
|
|
|
|
|
|
|
|
|
|
|
CR
1
|
|
=
|
|
CR
0
|
|
x
|
|
OS
0
+ X
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OS
0
+ Y
|
|
|
30
where,
|
|
|
CR
0
=
|
|
the Conversion Rate in effect immediately prior to the open of business on
the Ex-Dividend Date for such issuance;
|
|
|
|
CR
1
=
|
|
the Conversion Rate in effect immediately after the open of business on
such Ex-Dividend Date;
|
|
|
|
OS
0
=
|
|
the number of shares of Common Stock outstanding immediately prior to the
open of business on such Ex-Dividend Date;
|
|
|
|
X =
|
|
the total number of shares of Common Stock issuable pursuant to such rights,
options or warrants; and
|
|
|
|
Y =
|
|
the number of shares of Common Stock equal to the aggregate price payable to
exercise such rights, options or warrants
divided
by the average of the Last Reported
Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the date of announcement of the
issuance of such rights, options or warrants.
|
Any increase made under this Section 4.04(b) shall be made successively whenever any such
rights, options or warrants are issued and shall become effective immediately after the open of
business on the Ex-Dividend Date for such issuance. To the extent that such rights, options or
warrants are not exercised prior to their expiration or shares of the Common Stock are not
delivered upon exercise of such rights, options or warrants, the Conversion Rate shall be decreased
to the Conversion Rate that would then be in effect had the increase with respect to the issuance
of such rights, options or warrants been made on the basis of delivery of only the number of shares
of Common Stock actually delivered.
For purposes of this Section 4.04(b), in determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of the Common Stock at less than such
average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day
period ending on the Trading Day immediately preceding the date of announcement for such issuance,
and in determining the aggregate offering price of such shares of the Common Stock, there shall be
taken into account any consideration received by the Company for such rights, options or warrants
and any amount payable on exercise or conversion thereof and the value of such consideration, if
other than cash, to be determined by the Board of Directors.
(c) If the Company distributes shares of its Capital Stock, evidences of its
indebtedness, other assets or property of the Company or rights, options or warrants to
acquire its Capital Stock or other securities, to all or substantially all holders of the
Common Stock, excluding
(1) dividends or, distributions as to which an adjustment was effected pursuant to Section
4.04(a) or Section 4.04(b);
(2) dividends or distributions paid exclusively in cash as to the provisions set forth in
Section 4.04(d) shall apply;
31
(3) Spin-Offs as to which the provisions set forth below in this Section 4.04(c) shall apply;
and
(4) any dividends or distributions in connection with a Merger Event that is included in
Reference Property.
(any of such shares of Capital Stock, evidences of indebtedness, other assets or property or
rights, options or warrants to acquire Capital Stock or other securities of the Company, the
Distributed Property
), then the Conversion Rate shall be increased based on the following
formula:
|
|
|
|
|
|
|
|
|
|
|
CR
1
|
|
=
|
|
CR
0
|
|
x
|
|
SP
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SP
0
- FMV
|
|
|
where,
|
|
|
CR
0
=
|
|
the Conversion Rate in effect immediately prior to the open of business on
the Ex-Dividend Date for such distribution;
|
|
|
|
CR
1
=
|
|
the Conversion Rate in effect immediately after the open of business on
such Ex-Dividend Date;
|
|
|
|
SP
0
=
|
|
the average of the Last Reported Sale Prices of the Common Stock over the
10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the Ex-Dividend Date for such distribution; and
|
|
|
|
FMV =
|
|
the fair market value (as determined by the Board of Directors) of the
Distributed Property distributed with respect to each outstanding share of the Common
Stock on the Ex-Dividend Date for such distribution.
|
If the Board of Directors determines the FMV (as defined above) of any distribution for
purposes of this Section 4.04(c) by reference to the actual or when-issued trading market for any
securities, it shall in doing so consider the prices in such market over the same period used in
computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day
period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution.
Notwithstanding the foregoing, if FMV (as defined above) is equal to or greater than
SP
0
(as defined above), in lieu of the foregoing increase, each Holder of Notes shall
receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same
terms as holders of the Common Stock receive the Distributed Property, the amount and kind of the
Distributed Property that such Holder would have received as if such Holder had owned a number of
shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the
distribution.
Any increase made under the above portion of this Section 4.04(c) shall become effective
immediately after the open of business on the Ex-Dividend Date for such distribution.
32
With respect to an adjustment to the Conversion Rate pursuant to this Section 4.04(c) where
there has been a payment of a dividend or other distribution on the Common Stock of shares of
Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or
other business unit of the Company, and such Capital Stock or similar equity interest is listed or
quoted (or will be listed or quoted upon consummation of the distribution) on a U.S. national
securities exchange or reasonably comparable non-U.S. equivalent (a
Spin-Off
), the Conversion
Rate shall be increased based on the following formula:
|
|
|
|
|
|
|
|
|
|
|
CR
1
|
|
=
|
|
CR
0
|
|
x
|
|
FMV
0
+ MP
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MP
0
|
|
|
where,
|
|
|
CR
0
=
|
|
the Conversion Rate in effect immediately prior to the open of business on
the Ex-Dividend Date for such Spin-Off;
|
|
|
|
CR
1
=
|
|
the Conversion Rate in effect immediately after the open of business on the
Ex-Dividend Date for such Spin-Off;
|
|
|
|
FMV
0
=
|
|
the average of the Last Reported Sale Prices of the Capital Stock or
similar equity interest distributed to holders of Common Stock applicable to one share
of Common Stock (determined for purposes of the definition of Last Reported Sale Price
as if such Capital Stock or similar equity interest were the Common Stock) over the
first 10 consecutive Trading Day period commencing on, and including, the effective
date of the Spin-Off (the
Valuation Period
); and
|
|
|
|
MP
0
=
|
|
the average of the Last Reported Sale Prices of Common Stock over the
Valuation Period.
|
The adjustment to the Conversion Rate made under the preceding paragraph shall occur on the
last day of the Valuation Period but will be given effect as of the Ex-Dividend Date for the
Spin-Off;
provided
that in respect of any conversion for which the first Trading Day of the Cash
Settlement Averaging Period occurs after the effective date for a Spin-Off, but during the
Valuation Period for such Spin-Off, references in the portion of this Section 4.04(c) related to
Spin-Offs to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as
have elapsed since, and including, the effective date of such Spin-Off but before the first Trading
Day of the Cash Settlement Averaging Period;
provided further
that if one or more Trading Days of
any Cash Settlement Averaging Period occurs on or after the Ex-Dividend Date for a Spin-Off, but on
or prior to the first Trading Day of the Valuation Period (which is the effective date for such
Spin-Off), such Cash Settlement Averaging Period will be suspended on the first such Trading Day
and will resume on the second Trading Day of the Valuation Period for such Spin-Off, with
references in this portion of Section 4.04(c) related to Spin-Offs to 10 Trading Days deemed
replaced with references to one (1) Trading Day.
For the purposes of this Section 4.04(c) (and subject in all respects to Section 4.12),
rights, options or warrants distributed by the Company to all holders of its Common Stock entitling
them to subscribe for or purchase shares of the Companys Capital Stock (either initially
33
or under
certain circumstances), which rights, options or warrants, until the occurrence of a specified
event or events (a
Trigger Event
): (1) are deemed to be transferred with such shares of Common
Stock; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this Section 4.04(c), (and no
adjustment to the Conversion Rate under this Section 4.04(c) will be required) until the occurrence
of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have
been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be
made under this Section 4.04(c). If any such right, option or warrant, including any such existing
rights, options or warrants distributed prior to the date of this Supplemental Indenture, are
subject to events, upon the occurrence of which such rights, options or warrants become exercisable
to purchase different securities, evidences of indebtedness or other assets, then the date of the
occurrence of any and each such event shall be deemed to be the date of distribution and
Ex-Dividend Date of such deemed distribution (in which case the original rights, options or
warrants shall be deemed to terminate and expire on such date without exercise by any of the
holders). In addition, in the event of any distribution or deemed distribution of rights, options
or warrants, or any Trigger Event or other event (of the type described in the preceding sentence)
with respect thereto that was counted for purposes of calculating a distribution amount for which
an adjustment to the Conversion Rate under this Section 4.04(c) was made, (1) in the case of any
such rights, options or warrants which shall all
have been redeemed or purchased without exercise by any Holders thereof, upon such final
redemption or repurchase (x) the Conversion Rate shall be readjusted as if such rights, options or
warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give
effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or purchase price received by holders
of Common Stock with respect to such rights, options or warrants (assuming each such holder had
retained such rights, options or warrants), made to all holders of Common Stock as of the date of
such redemption or purchase, and (2) in the case of such rights, options or warrants which shall
have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall
be readjusted as if such rights and warrants had not been issued.
For purposes of this Section 4.04(c) and subsections (a) and (b) of this Section 4.04, any
dividend or distribution to which this Section 4.04(c) applies which also includes one or both of:
(a) a dividend or distribution of shares of Common Stock to which Section 4.04(a)
applies (the
Clause A Distribution
);
(b) a dividend or distribution of rights, options or warrants to which Section 4.04(b)
applies (the
Clause B Distribution
),
then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c)
applies (the
Clause C Distribution
) and any Conversion Rate adjustment required by this Section
4.04(c) with respect thereto shall then be made, and (2) the Clause A Distribution and Clause B
Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion
Rate adjustment required by Section 4.04(a) and Section 4.04(b) with respect thereto shall then be
made, except that, if determined by the Company, (I) the Ex-Dividend Date of the Clause A
Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend
34
Date of the Clause
C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause
B Distribution shall be deemed not to be outstanding immediately prior to the open of business on
such Ex-Dividend Date or such effective date within the meaning of Section 4.04(a) or outstanding
immediately prior to the open of business on such Ex-Dividend Date within the meaning of Section
4.04(b).
(d) If any cash dividend or distribution is made to all or substantially all holders of
the Common Stock, other than a regular, quarterly cash dividend that does not exceed the
Dividend Threshold, the Conversion Rate shall be adjusted based on the following formula:
|
|
|
|
|
|
|
|
|
|
|
CR
1
|
|
=
|
|
CR
0
|
|
x
|
|
SP
0
- T
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SP
0
- C
|
|
|
where,
|
|
|
CR
0
=
|
|
the Conversion Rate in effect immediately prior to the open of business on
the Ex-Dividend Date for such dividend or distribution;
|
|
|
|
CR
1
=
|
|
the Conversion Rate in effect immediately after the open of business on the
Ex-Dividend Date for such dividend or distribution;
|
|
|
|
SP
0
=
|
|
the average of the Last Reported Sale Prices of the Common Stock over 10
consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the Ex-Dividend Date for such dividend or distribution (or, if the Company
declares such a dividend or distribution less than 11 Trading Days prior to such
Ex-Dividend Date, 10 shall be replaced with a smaller number of Trading Days that will
have occurred after, and not including, such declaration date, and prior to, and not
including, such Ex-Dividend Date);
|
|
|
|
T =
|
|
the Dividend Threshold in effect on the Ex-Dividend Date for such dividend or
distribution;
provided
that if the dividend or distribution is not a regular quarterly
cash dividend, the Dividend Threshold shall be deemed to be zero; and
|
|
|
|
C =
|
|
the amount in cash per share that the Company distributes to holders of the
Common Stock.
|
Any increase pursuant to this Section 4.04(d) shall become effective immediately after the
open of business on the Ex-Dividend Date for such dividend or distribution.
Notwithstanding the foregoing, if C (as defined above) is equal to or greater than
SP
0
(as defined above), in lieu of the foregoing adjustment, each Holder shall
receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as
holders of shares of the Common Stock, the amount of cash that such Holder would have received if
such Holder had owned a number of shares of Common Stock equal to the Conversion Rate on the
Ex-Dividend Date for such cash dividend or distribution.
35
(e) If the Company or any of its Subsidiaries make a payment in respect of a tender offer
or exchange offer for the Common Stock, to the extent that the cash and value of any other
consideration included in the payment per share of the Common Stock exceeds the Last Reported
Sale Price of the Common Stock on the Trading Day next succeeding the last date on which
tenders or exchanges may be made pursuant to such tender or exchange offer (the
Expiration
Date
), the Conversion Rate shall be increased based on the following formula:
|
|
|
|
|
|
|
|
|
|
|
CR
1
|
|
=
|
|
CR
0
|
|
x
|
|
AC + (SP
1
x OS
1
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OS
0
x SP
1
|
|
|
where,
|
|
|
CR
0
=
|
|
the Conversion Rate in effect immediately prior to the close of business on
the 10th Trading Day immediately following, and including, the Trading Day next
succeeding the Expiration Date;
|
|
|
|
CR
1
=
|
|
the Conversion Rate in effect immediately after the close of business on
the 10th Trading Day immediately following, and including, the Trading Day next
succeeding the Expiration Date;
|
|
|
|
AC =
|
|
the aggregate value of all cash and any other consideration (as determined by
the Board of Directors) paid or payable for shares of Common Stock purchased in such
tender offer or exchange offer;
|
|
|
|
OS
0
=
|
|
the number of shares of Common Stock outstanding immediately prior to the
Expiration Date (prior to giving effect to the purchase of all shares accepted for
purchase or exchange in such tender offer or exchange offer);
|
|
|
|
OS
1
=
|
|
the number of shares of Common Stock outstanding immediately after the
Expiration Date (after giving effect to the purchase of all shares accepted for
purchase or exchange in such tender or exchange offer); and
|
|
|
|
SP
1
=
|
|
the average of the Last Reported Sale Prices of the Common Stock over the
10 consecutive Trading Day period commencing on, and including, the Trading Day next
succeeding the Expiration Date.
|
The adjustment to the Conversion Rate under this Section 4.04(e) shall occur at the close of
business on the 10th Trading Day immediately following, and including, the Trading Day next
succeeding the Expiration Date;
provided
that for purposes of determining the applicable Conversion
Rate in respect of any conversion during the 10 Trading Day period commencing on, and including,
the Trading Day next succeeding the Expiration Date, references in this Section 4.04(e) with
respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have
elapsed from, and including, the Trading Day next succeeding the Expiration Date, but excluding,
the Conversion Date.
(f) To the extent permitted by law and any applicable stock exchange rules, the Company
from time to time may increase the Conversion Rate by any amount for a period
36
of at least 20
Business Days. Whenever the Conversion Rate is increased pursuant to this Section 4.04(f),
the Company shall mail to Holders of record of the Notes a notice of the increase at least 10
days prior to the date the increased Conversion Rate takes effect, and such notice shall state
the increased Conversion Rate and the period during which it will be in effect.
(g) The Company may (but shall not be required to) increase the Conversion Rate, in
addition to any adjustments pursuant to Section 4.04(a), 4.04(b), 4.04(c), 4.04(d), 4.04(e) or
4.04(f), if the Board of Directors considers such increase to be advisable to avoid or
diminish any income tax to holders of Common Stock or rights to purchase shares of Common
Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or
similar event.
(h) If a Holder converts a Note and, on any Trading Day during the applicable Cash
Settlement Averaging Period:
(1) shares of Common Stock are deliverable as part of the Daily Settlement Amount for such
Trading Day;
(2) an Adjustment Event has occurred, but will not result in an adjustment to the Conversion
Rate for such Trading Day for such Holder; and
(3) the shares of Common Stock that the Holder shall receive as part of the Daily Settlement
Amount for such Trading Day will not be entitled to participate in the distribution or transaction
requiring the adjustment (because such shares were not held by such Holder on the record date
corresponding to such distribution or transaction or otherwise),
then the Company will adjust the number of shares of Common Stock or cash deliverable to such
Holder as part of the Daily Settlement Amount for such Trading Day in a manner that appropriately
reflects the relevant distribution or transaction requiring adjustment.
(i) All calculations under this Article 4 shall be made by the Company and shall be made
to the nearest cent (including, in the case of any adjustment to the Conversion Rate, the
resulting adjustment to the Conversion Price) or to the nearest one ten-thousandth of a share.
No adjustment to the Conversion Rate shall be made pursuant to Sections 4.04(a) (e) in such
a manner as to result in the reduction to the Conversion Price to less than the par value per
share of the Common Stock.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall
promptly file with the Trustee and any Conversion Agent an Officers Certificate setting forth
the Conversion Rate after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officers Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate
of which it has knowledge is still in effect. Promptly after delivery of such certificate,
the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the
adjusted Conversion Rate and the date on which each adjustment becomes effective and shall
mail such notice of such adjustment of the
37
Conversion Rate to each Holder of the Notes.
Failure to deliver such notice shall not affect the legality or validity of any such
adjustment.
(k) For purposes of this Section 4.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so long as the
Company does not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company, but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.
(l) Except as stated in this Section 4.04 and Section 4.12, the Company will not adjust
the Conversion Rate for the issuance of shares of the Common Stock or any securities
convertible into or exchangeable for shares of the Common Stock or
the right to purchase shares of the Common Stock or such convertible or exchangeable securities. In addition,
notwithstanding any of the foregoing, the applicable Conversion Rate will not be adjusted:
(1) upon the issuance of any shares of Common Stock pursuant to any present or future plan
providing for the reinvestment of dividends or interest payable on the Companys securities and the
investment of additional optional amounts in shares of Common Stock under any plan;
(2) upon the issuance of any shares of Common Stock or options or rights to purchase those
shares to or pursuant to any present or future employee, director or consultant benefit or deferred
compensation plan or program of or assumed by the Company or any of its Subsidiaries;
(3) stock repurchases that are not tender offers referred to Section 4.04(e), including
structured or derivative transactions, pursuant to a stock repurchase program approved by the Board
of Directors;
(4) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right or
exercisable, exchangeable or convertible security not described in clause (2) of this Section
4.04(l) and outstanding as of the date the Notes were first issued;
(5) for a change in the par value of the Common Stock; or
(6) for accrued and unpaid interest on the Notes, if any.
(m) Adjustments to the Conversion Rate will be calculated to the nearest 1/10,000th of a
share. No adjustment will be made pursuant to this Section 4.04 in the Conversion Rate unless
the adjustment would require a change of at least 1% in the Conversion Rate. However, any
such adjustments less than 1% of the Conversion Rate will be carried forward and the Company
will make such carried forward adjustment to the Conversion Rate on the Conversion Date for
any Notes and on each Trading Day of a Cash Settlement Averaging Period with respect to any
Conversion Date for any Notes, regardless of whether the aggregate adjustment is less than 1%.
38
Section 4.05
Certain Other Adjustments
. Whenever any provision of the Indenture requires the Company to calculate the Last Reported
Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts over a
span of multiple days (including any Cash Settlement Averaging Period), the Company shall make
appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes
effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date
of the event occurs, at any time during the period when the Last Reported Sale Prices, the Daily
VWAPs, the Daily Conversion Values or the Daily Settlement Amounts are to be calculated.
Section 4.06
Adjustment to Conversion Rate Upon Conversion in Connection with a Make-Whole
Fundamental Change.
(a) If a Make-Whole Fundamental Change occurs and a Holder elects to convert its Notes in
connection with such Make-Whole Fundamental Change, the Company shall, under certain
circumstances, increase the Conversion Rate for the Notes so surrendered for
conversion by a number of additional shares of Common Stock (the
Additional Shares
), as
described below. A conversion of Notes shall be deemed for these purposes to be in
connection with such Make-Whole Fundamental Change if the relevant Conversion Notice is
received by the Conversion Agent from, and including, the Effective Date of the Make-Whole
Fundamental Change up to, and including, the Business Day immediately prior to the related
Fundamental Change Purchase Date (or, in the case of a Make-Whole Fundamental Change that
would have been a Fundamental Change but for the first
proviso
in clause (2) of the definition
thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole
Fundamental Change).
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental
Change, the Company shall satisfy the related Conversion Obligation based on the Settlement
Method then in effect in accordance with Section 4.03;
provided, however
, that if, at the
effective time of a Make-Whole Fundamental Change described in Clause (2) of the definition of
Fundamental Change, the Reference Property is comprised entirely of cash, then, for any
conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the
Conversion Obligation shall be calculated based solely on the Stock Price for the Make-Whole
Fundamental Change and shall be deemed to be an amount equal to the applicable Conversion Rate
(as increased by the number of Additional Shares, if any)
multiplied by
such Stock Price. In
such event, the Conversion Obligation shall be determined and paid to Holders in cash on the
third Business Day following the applicable Conversion Date.
(c) The number of Additional Shares, if any, by which the Conversion Rate will be
increased shall be determined by reference to the table attached as
Schedule A
hereto,
based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the
Effective Date
) and the price (the
Stock Price
) paid (or deemed paid) per share of the
Common Stock in the Make-Whole Fundamental Change. If the holders of the Common Stock receive
only cash in a Make-Whole Fundamental Change described in clause (2) of the definition of
Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the
Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the
ten consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the Effective Date of the Make-
39
Whole Fundamental Change. The Board of Directors
shall make appropriate adjustments to the Stock Price, in its good faith determination, to
account for any adjustment to the Conversion Rate that becomes effective, or any event
requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs,
during such five consecutive Trading Day period.
The exact Stock Prices and Effective Dates may not be set forth in the table in
Schedule
A
, in which case:
(1) If the Stock Price is between two Stock Prices in the table or the Effective Date is
between two Effective Dates in the table, the number of Additional Shares shall be determined by a
straight-line interpolation between the number of Additional Shares set forth for the higher and
lower Stock Prices and the earlier and later Effective Dates, as applicable, based on a 365-day
year.
(2) If the Stock Price is greater than $180.00 per share (subject to adjustment in the same
manner as the Stock Prices set forth in the column headings of the table in
Schedule A
pursuant to Section 4.06(d)), the Conversion Rate shall not be increased.
(3) If the Stock Price is less than $53.32 per share (subject to adjustments in the same
manner as the Stock Prices set forth in the column headings of the table in
Schedule A
pursuant to Section 4.06(d)), the Conversion Rate shall not be increased.
Notwithstanding the foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion exceed 18.7546 shares per $1,000 principal amount of Notes, subject to
adjustments in the same manner as the Conversion Rate as set forth in Section 4.04.
(d) The Stock Prices set forth in the column headings of the table in
Schedule A
hereto shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise
adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior
to such adjustment,
multiplied by
a fraction, the numerator of which is the Conversion Rate
immediately prior to such adjustment giving rise to the Stock Price adjustment and the
denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares
set forth in such table shall be adjusted in the same manner and at the same time as the
Conversion Rate as set forth in Section 4.04.
(e) The Company shall notify the Holders of the Effective Date of any Make-Whole
Fundamental Change and issue a press release announcing such Effective Date no later than five
Business Days after such Effective Date.
Section 4.07
Effect of Recapitalization, Reclassification, Consolidation,
Merger or Sale.
(a) In the case of:
(1) any recapitalization, reclassification or change of the Common Stock (other than changes
resulting from a subdivision or combination);
(2) any consolidation, merger or share exchange involving the Company; or
40
(3) any sale, conveyance, transfer, lease or disposition to a third party of the consolidated
assets of the Company and its Subsidiaries taken as a whole;
in each case as a result of which the Common Stock would be converted into, or exchanged for,
stock, other securities, or other property or assets (including cash or any combination thereof)
(any such event, a
Merger Event
), then, at the effective time of such Merger Event, the right to
convert each $1,000 principal amount of Notes based on the Common Stock will, without the consent
of the Holders of the Notes, shall be changed into a right to convert such principal amount of
Notes based on the kind and amount of shares of stock, other securities or other property or assets
(including cash or any combination thereof) that a holder of a number of shares of Common Stock
equal to the Conversion Rate immediately prior to such Merger Event would have owned or been
entitled to receive (the
Reference Property
, with each
unit of Reference Property
meaning the
type and amount of Reference Property that a holder of one
share of Common Stock is entitled to receive) and, prior to or at the effective time of such Merger
Event, the Company or the successor or purchasing person, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force
at the date of execution of such supplemental indenture) providing for such change in the right to
convert each $1,000 principal amount of Notes;
provided, however
, that (i) the Company shall
continue to have the right to elect the Settlement Method upon conversion of the Notes in
accordance with Section 4.03 and (ii) (x) any amount payable in cash upon conversion of the Notes
in accordance with Section 4.03 shall continue to be payable in cash, (y) any shares of Common
Stock that the Company would have been required to deliver upon conversion of the Notes in
accordance with Section 4.03 shall instead be deliverable in the amount and type of Reference
Property that a holder of that number of shares of Common Stock would have received in such Merger
Event and (z) the Daily VWAP shall be calculated based on the value of a unit of Reference
Property;
provided however
that if the Holders of the Common Stock receive only cash in such Merger
Event, the amount deliverable upon conversion shall equal, for each $1,000 principal amount of
Notes, the Conversion Rate in effect on the Conversion Date multiplied by the price paid per share
of the Common Stock in such Merger Event and settlement will occur on the third Business Day
following the Conversion Date.
If, as a result of the Merger Event, each share of Common Stock is converted into the right to
receive more than a single type of consideration (determined based in part upon any form of
stockholder election), then (x) the Reference Property based on which the Notes will be convertible
will be deemed to be the weighted average of the types and amounts of consideration received by the
holders of Common Stock that affirmatively make such an election, and (y) the unit of Reference
Property for purposes of the foregoing sentence shall refer to the consideration referred to in
clause (x) attributable to one share of Common Stock. The Company shall notify Holders, the
Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as
practicable after such determination is made.
The Company shall not become a party to any such Merger Event unless its terms are consistent
with this Section 4.07. Such supplemental indenture described in the second immediately preceding
paragraph shall provide for adjustments which shall be as nearly equivalent to the adjustments
provided for in this Article 4 in the judgment of the Board of Directors or the board of directors
of the successor person. If, in the case of any such Merger Event, the Reference Property
receivable thereupon by a holder of Common Stock includes
41
shares of stock, securities or other
property or assets (including cash or any combination thereof) of a person other than the successor
or purchasing person, as the case may be, in such Merger Event, then such supplemental indenture
shall also be executed by such other person.
(b) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder, at the address of such Holder as it appears on the register of the
Notes maintained by the Registrar, within 20 days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such supplemental indenture. The
above provisions of this Section 4.07 shall similarly apply to successive Merger Events. If
this Section 4.07 applies to any Merger Event, Section 4.04 shall not apply.
(c) In connection with any Merger Event, the Dividend Threshold shall be subject to
adjustment as described in clause (1), clause (2) or clause (3) below, as the case may be.
(1) In the case of a Merger Event in which the Reference Property (determined, as appropriate,
pursuant to the second paragraph of subsection (a) above and excluding any dissenters appraisal
rights) is composed entirely of shares of common stock (the
Merger Common Stock
), the Dividend
Threshold at the effective time of such Merger Event shall be equal to (x) the Dividend Threshold
immediately prior to the effective time of such Merger Event,
divided by
(y) the number of shares
of Merger Common Stock that a holder of one share of Common Stock would receive in such Merger
Event (such quotient rounded down to nearest cent) (subject to adjustment as provided in 4.04(d)).
(2) In the case of a Merger Event in which the Reference Property (determined, as appropriate,
pursuant to the second paragraph of subsection (a) above and excluding any dissenters appraisal
rights) is composed in part of shares of Merger Common Stock, the Dividend Threshold at the
effective time of such Merger Event shall be equal to (x) the Dividend Threshold immediately prior
to the effective time of such Merger Event,
multiplied by
(y) the Merger Valuation Percentage for
such Merger Event (such product rounded down to nearest cent) (subject to adjustment as provided in
4.04(d)).
(3) For the avoidance of doubt, in the case of a Merger Event in which the Reference Property
(determined, as appropriate, pursuant to the second paragraph of subsection (a) above and excluding
any dissenters appraisal rights) is composed entirely of consideration other than shares of common
stock, the Dividend Threshold at and after the effective time of such Merger Event shall be equal
to zero.
(d) For purposes of subsection (c) of this Section 4.07, the following terms shall have
the following meanings:
(1) The
Merger Valuation Percentage
for any Merger Event shall be equal to (x) the
arithmetic average of the Last Reported Sale Prices of one share of such Merger Common Stock over
the relevant Merger Valuation Period (determined as if references to Common Stock in the
definition of Last Reported Sale Price were references to the Merger
42
Common Stock for such
Merger Event),
divided by
(y) the arithmetic average of the Last Reported Sale Prices of one share
of Common Stock over the relevant Merger Valuation Period.
(2) The
Merger Valuation Period
for any Merger Event means the five consecutive Trading Day
period immediately preceding, but excluding, the effective date for such Merger Event.
Section 4.08
Taxes on Shares Issued
The Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue
or delivery of shares of Common Stock on conversion of Notes pursuant hereto;
provided, however
,
that if such documentary, stamp or similar issue or transfer tax is due because the Holder or
beneficial owner of such Notes has requested that shares of Common Stock be issued in a name other
than that of the Holder or beneficial owner of the converted Notes, then
such taxes shall be paid by such Holder or beneficial owner, and the Company shall not be
required to issue or deliver any stock certificate evidencing such shares unless and until such
Holder or beneficial owner shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
Section 4.09
Reservation of Shares; Shares to be Fully Paid; Compliance With Governmental
Requirements; Listing of Common Stock
The Company shall reserve, out of its authorized but unissued shares or shares held in
treasury, sufficient shares of Common Stock to satisfy conversion of the Notes from time to time as
such Notes are presented for conversion (assuming that, at the time of the computation of such
number of shares or securities, all such Notes would be converted by a single Holder and that
Physical Settlement is applicable).
The Company covenants that all shares of Common Stock that may be issued upon conversion of
Notes shall be newly issued shares or treasury shares, shall be duly authorized, validly issued,
fully paid and non-assessable and shall be free from preemptive rights and free from any tax, lien
or charge (other than those created by the Holder).
The Company shall list or cause to have quoted any shares of Common Stock to be issued upon
conversion of Notes on each national securities exchange or over-the-counter or other domestic
market on which the Common Stock is then listed or quoted.
Section 4.10
Responsibility of Trustee
The Trustee and any Conversion Agent shall not at any time be under any duty or responsibility
to any Holder of Notes to determine or calculate the Conversion Rate, to determine whether any
facts exist which may require any adjustment of the Conversion Rate, or to confirm the accuracy of
any such adjustment when made or the appropriateness of the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. The Trustee and any other
Conversion Agent shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock or of any other securities or property that may at any time
be issued or delivered upon the conversion of any Notes; and the Trustee and the Conversion Agent
make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall
be responsible for any failure of the Company to issue, transfer or deliver any shares of Common
Stock or stock certificates or other securities or property or cash
43
upon the surrender of any Notes
for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article 4. The rights, privileges, protections, immunities and
benefits given to the Trustee, including without limitation its right to be compensated,
reimbursed, and indemnified, are extended to, and shall be enforceable by, the Trustee in each of
its capacities hereunder, including its capacity as Conversion Agent and if it is so appointed by
the Company and accepts such appointment, as Bid Solicitation Agent.
Section 4.11
Notice to Holders Prior to Certain Actions
In case of any:
(a) action by the Company or one of its Subsidiaries that would require an adjustment in
the Conversion Rate pursuant to Section 4.04 or Section 4.12; or
(b) Merger Event; or
(c) voluntary or involuntary dissolution, liquidation or winding up of the Company or any
of its Subsidiaries;
then, in each case (unless notice of such event is otherwise required pursuant to another provision
of this Supplemental Indenture), the Company shall cause to be filed with the Trustee and the
Conversion Agent (if other than the Trustee) and to be mailed to each Holder of Notes at such
Holders address appearing in the Register, which the Company shall provide to the Trustee, except
with respect to notice periods otherwise specified in this Supplemental Indenture (in which case
such other provisions setting forth notice periods shall control) as promptly as practicable but in
any event at least 10 days prior to the applicable date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such action by the Company or one of
its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common
Stock of record are to be determined for the purposes of such action by the Company or one of its
Subsidiaries, or (y) the date on which such Merger Event, dissolution, liquidation or winding up is
expected to become effective or occur, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such Merger Event, dissolution, liquidation or winding up. Failure to
give such notice, or any defect therein, shall not affect the legality or validity of such dividend
(or any other distribution), Merger Event, dissolution, liquidation or winding up.
Section 4.12
Stockholder Rights Plan
. Each share of Common Stock, if any, issued upon conversion of Notes pursuant to this
Article 4 shall be entitled to receive the appropriate number of rights, if any, and the
certificates representing the Common Stock issued upon such conversion shall bear such legends, if
any, in each case as may be provided by the terms of any stockholder rights plan adopted by the
Company and in effect upon conversion of such Notes, as the same may be amended from time to time.
Notwithstanding the foregoing, if prior to any conversion such rights have separated from the
shares of Common Stock in accordance with the provisions of the applicable stockholder rights
agreement, the Conversion Rate shall be adjusted at the time of separation as if the Company had
distributed to all holders of the Common Stock, shares of the Companys Capital Stock, evidences of
indebtedness, assets,
44
property, rights, options or warrants as described in Section 4.04(c),
subject to readjustment in the event of the expiration, termination or redemption of such rights.
ARTICLE 5.
REMEDIES
Section 5.01
Events of Default
. Each of the following events shall be an
Event of Default
wherever used herein with
respect to the Notes, and, except to the extent set forth in this Section 5.01, the Notes shall not
have the benefit of any Event of Default specified in Section 6.1 of the Original Indenture,
which shall not apply with respect to the Notes, and this Section 5.01 supersedes the entirety
thereof:
(a) default for 30 days in the payment when due of interest on the Notes, whether or not
prohibited by the provisions of Article 10;
(b) default in the payment of principal of any Note when due and payable at Stated
Maturity, upon purchase in connection with a Fundamental Change, upon declaration of
acceleration or otherwise, when the same becomes due and payable, whether or not prohibited by
the provisions of Article 10;
(c) failure by the Company to comply with its obligation to convert the Notes in
accordance with this Supplemental Indenture upon exercise of a Holders conversion right,
whether or not any cash payment due upon conversion is prohibited by the provisions of Article
10, and such failure continues for five Business Days following the last Business Day of the
relevant period set forth in Section 4.03(a)(3) for the settlement of such conversion;
(d) failure by the Company to comply with its obligations under Section 8.01;
(e) failure by the Company to provide a Fundamental Change Company Notice pursuant to
Section 3.01(b), notice of a Make-Whole Fundamental Change pursuant to Section 4.06(e) or
notice of a specified corporate transaction required by Section 4.01(b)(3) or Section
4.01(b)(4) in accordance with the relevant Section, in each case when due;
(f) failure by the Company to comply with any of its other agreements (other than a
covenant or warranty or default in whose performance or whose breach is elsewhere in this
Section 5.01 specifically provided for) contained in the Notes or this Supplemental Indenture
for 60 days after the Company has received written notice of such default from the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes;
(g) default by the Company or any of its Subsidiaries with respect to any mortgage,
agreement or other instrument under which there may be outstanding, or by which there may be
secured or evidenced, any indebtedness for money borrowed in excess of $50.0 million in the
aggregate of the Company or any such Subsidiary, whether such indebtedness exists on the date
of this Supplemental Indenture or shall hereafter be created (i) resulting in such
indebtedness becoming or being declared due and payable or
45
(ii) constituting a failure to pay
the principal or interest of any such debt when due and payable at its stated maturity, upon
required repurchase, upon declaration or otherwise;
(h) failure by the Company or any of its Subsidiaries to pay final judgments entered by a
court or courts of competent jurisdiction in excess of $50.0 million, which judgments are not
paid, discharged or stayed, for a period of 60 days;
(i) the Company or any of its Significant Subsidiaries:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in an involuntary case,
(3) consents to the appointment of a custodian of it or for all or substantially all of its
property,
(4) makes a general assignment for the benefit of its creditors, or
(5) generally is not paying its debts as they become due; and
(j) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(1) is for relief against the Company or any of its Significant Subsidiaries in an involuntary
case;
(2) appoints a custodian of the Company or any of its Significant Subsidiaries or for all or
substantially all of the property of the Company or any of its Significant Subsidiaries; or
(3) orders the liquidation of the Company or any of its Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 5.02
Acceleration.
If an Event of Default (other than an Event of Default specified under Section 5.01(i) or
Section 5.01(j) with respect to the Company) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in aggregate principal amount of then outstanding Notes by
notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall,
declare 100% of the principal of, and accrued and unpaid interest, if any, on, all then Outstanding
Notes to be due and payable. Upon such a declaration of acceleration, such principal and accrued
and unpaid interest, if any, will be due and payable immediately, subject to Section 10.04. If an
Event of Default arising under Section 5.01(i) or Section 5.01(j) with respect to the Company
occurs, the principal of, and accrued and unpaid interest on, all of the Notes shall become
immediately due and payable without any declaration or other act of the Holders or any act on the
part of the Trustee, subject to Section 10.04.
46
Section 5.03
Additional Interest
. Notwithstanding any provisions of the Indenture to the contrary, to the extent the Company
elects, the sole remedy for an Event of Default relating to (i) its failure to file with the
Trustee pursuant to Section 314(a)(1) of the Trust Indenture Act any documents or reports that it
is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act or (ii)
its failure to comply with its obligations in Section 4.4 of the Original Indenture, as modified by
Section 2.03 of this Supplemental Indenture, shall for the 364 days after the occurrence of
such an Event of Default consist exclusively of the right to receive additional interest on
the Notes at a rate equal to 0.25% per annum of the principal amount of the Notes Outstanding
(
Additional Interest
) for each day during the 180-day period beginning on, and including, the
occurrence of such an Event of Default during which such Event of Default is continuing, which such
Additional Interest shall be increased by an additional 0.25% per annum, on the 181st day after
such Event of Default (if such Event of Default is not cured or waived prior to such 181st day),
provided
that the rate at which such Additional Interest accrues may in no event exceed 0.50% per
annum. If the Company so elects, such Additional Interest shall be payable in the same manner and
on the same dates as the stated interest payable on the Notes. On the 365th day after such Event
of Default occurs (if such Event of Default is not cured or waived prior to such 365th day), such
Additional Interest shall cease to accrue and the Notes shall be subject to acceleration as
provided in Section 5.02. This Section 5.03 shall not affect the rights of Holders of Notes in the
event of the occurrence of any other Event of Default. In the event the Company does not elect to
pay Additional Interest following an Event of Default in accordance with this Section 5.03, the
Notes shall be subject to acceleration as provided in Section 5.02.
In order to elect to pay Additional Interest as the sole remedy during the first 364 days
after the occurrence of an Event of Default described in the immediately preceding paragraph, the
Company must give notice to Holders of the Notes, the Trustee and the Paying Agent of such election
prior to the beginning of such 364-day period. Upon the failure to timely give all Holders, the
Trustee and the Paying Agent such notice, the Notes shall be immediately subject to acceleration as
provided in Section 5.02.
Section 5.04
Waiver; Unconditional Right of Holders to Receive Amounts Due Upon
Conversion
. (a) The Holders of a majority in aggregate principal amount of Notes then outstanding
may, on behalf of the Holders of all Notes, waive all past Defaults (except with respect to
the Companys (a) nonpayment of the principal of or interest on any Note, (b) failure to pay
or deliver, as the case may be, the consideration due upon conversion in accordance with
Article 4 or (c) failure to pay the Fundamental Change Purchase Price (if applicable) in
accordance with Article 3) and rescind any acceleration arising under Section 5.02 with
respect to the Notes and its consequences if:
(1) rescission would not conflict with any judgment or decree of a court of competent
jurisdiction; and
(2) all existing Events of Default, other than the nonpayment of the principal of and
interest, if any, on the Notes that have become due solely by such declaration of acceleration,
have been cured or waived.
47
(b) In addition to the circumstances set forth in Section 6.7 of the Original Indenture
and notwithstanding any provision to the contrary in the Indenture, the Holder of any Note
shall have the right, which is absolute and unconditional, to receive amounts due upon
conversion in accordance with Article 4 and the Fundamental Change Purchase Price (if
applicable) in accordance with Article 3 and to institute suit for the enforcement of any
such payment or delivery, as the case may be, and such rights shall not be impaired
without the consent of such Holder.
Section 5.05
Notice of Defaults
. Notwithstanding any provision to the contrary in the Indenture, (a) the list of exceptions
in Section 7.5 of the Original Indenture pursuant to which the Trustee may not withhold notice of
any Default under the Indenture shall include the payment of the Fundamental Change Purchase Price
(if applicable) in accordance with Article 3 and the payment or delivery, as the case may be, of
the consideration due upon conversion of the Notes in accordance with Article 4 and (b) in addition
to any obligations of the Company under Section 7.5 of the Original Indenture, the Company shall
deliver to the Trustee, within 30 days after the occurrence thereof, written notice of any events
that would constitute an Event of Default, the status of such events and what action the Company is
taking or proposes to take in respect thereof.
Section 5.06
Overdue Payments
. Payments of (a) principal of the Notes, (b) to the extent lawful, interest on the Notes and
(c) the Fundamental Change Purchase Price (if applicable) in accordance with Article 3 that are not
made when due shall, in each case, accrue interest at the annual rate of the then-applicable
interest rate of the Notes from the required payment date (any such amounts,
Defaulted Amounts
);
provided
,
however
, that any such payment that is required to be made on any day that is not a
Business Day will be made on the next succeeding Business Day and no interest on such payment will
accrue in respect of the delay. The Company shall pay any such Defaulted Amounts in accordance
with the provisions of Section 2.13 of the Original Indenture and, for this purpose, each reference
to Defaulted Interest in the Original Indenture shall be deemed to be a reference to Defaulted
Amounts. In addition, all references in Section 6.3 and Section 6.8 of the Original Indenture to
principal shall, with respect to the Notes, be deemed to be references to principal (including
the Fundamental Change Purchase Price, if applicable) and all references to any Event of Default
in Section 6.8 of the Original Indenture shall, with respect to the Notes, be deemed to be
references to any Event of Default specified in Sections 5.01(a), (b) or (c).
ARTICLE 6.
SATISFACTION AND DISCHARGE
Section 6.01
Satisfaction and Discharge of the Supplemental Indenture
. Articles VIII and XI of the Original Indenture shall not apply to the Notes. Instead, the
satisfaction and discharge provisions set forth in this Article 6 shall, with respect to the Notes,
supersede in their entirety Articles VIII and XI of the Original Indenture, and all references in
the Original Indenture to Articles VIII and XI thereof and satisfaction and discharge provisions
therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this
Article 6 and the satisfaction and discharge provisions set forth in this Article 6, respectively.
When (a) the Company shall deliver to the Registrar for cancellation all Notes theretofore
authenticated (other than any Notes that have been destroyed, lost or stolen and in lieu of or in
48
substitution for which other Notes shall have been authenticated and delivered) and not
theretofore canceled, or (b) all the Notes not theretofore canceled or delivered to the
Trustee for cancellation shall have become due and payable (whether at Stated Maturity, on any
Fundamental Change Purchase Date, upon conversion or otherwise) and the Company shall deposit with
the Trustee, in trust, or deliver to the Holders, as applicable, shares of Common Stock, cash or
cash and shares of Common Stock (in the case of any conversion to which Physical Settlement, Cash
Settlement or Combination Settlement, respectively, applies), if any, sufficient to pay all amounts
due (and shares of Common Stock deliverable following conversion, if applicable) on all of such
Notes (other than any Notes that shall have been mutilated, destroyed, lost or stolen and in lieu
of or in substitution for which other Notes shall have been authenticated and delivered) not
theretofore canceled or delivered to the Trustee for cancellation, including principal and interest
due, accompanied, except in the event the Notes are due and payable solely in cash at the Stated
Maturity of the Notes or upon an earlier Fundamental Change Purchase Date, by a verification report
as to the sufficiency of the deposited amount from an independent certified accountant or other
financial professional reasonably satisfactory to the Trustee (which may include any of the
Underwriters), and if the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Supplemental Indenture shall cease to be of further effect
(except as to (i) rights hereunder of Holders of the Notes to receive all amounts owing upon the
Notes and the other rights, duties and obligations of Holders of the Notes, as beneficiaries hereof
with respect to the amounts, if any, so deposited with the Trustee and (ii) the rights, obligations
and immunities of the Trustee hereunder), and the Trustee, on written demand of the Company
accompanied by an Officers Certificate and an Opinion of Counsel as required by Section 12.4 of
the Original Indenture and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Supplemental Indenture; the Company, however,
hereby agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Trustee, including the fees and expenses of its counsel, and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection
with this Supplemental Indenture or the Notes.
Section 6.02
Deposited Monies to Be Held in Trust by Trustee
. Subject to Section 6.04, all monies and shares of Common Stock, if any, deposited with the
Trustee pursuant to Section 6.01 shall be held in trust for the sole benefit of the Holders of the
Notes, and such monies and shares of Common Stock shall be applied by the Trustee to the payment,
either directly or through any Paying Agent (including the Company if acting as its own Paying
Agent), to the Holders of the particular Notes for the payment, settlement or redemption of which
such monies or shares of Common Stock have been deposited with the Trustee, of all sums or amounts
due and to become due thereon for principal and interest, if any.
Section 6.03
Paying Agent to Repay Monies Held
. Upon the satisfaction and discharge of this Supplemental Indenture, all monies and shares
of Common Stock, if any, then held by any Paying Agent (if other than the Trustee) shall, upon
written request of the Company, be repaid to it or paid to the Trustee, and thereupon such Paying
Agent shall be released from all further liability with respect to such monies and shares of Common
Stock.
Section 6.04
Return of Unclaimed Monies
. Subject to the requirements of applicable law, any monies and shares of Common Stock
deposited with or paid to the Trustee
49
for payment of the principal of or interest, if any, on the
Notes and not applied but remaining unclaimed by the Holders of the Notes for two years after the
date upon which the principal of or interest, if any, on such Notes, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee on demand, and all liability
of the Trustee shall thereupon cease with respect to such monies and shares of Common Stock; and
the Holder of any of the Notes shall thereafter look only to the Company for any payment or
delivery that such Holder of the Notes may be entitled to collect unless an applicable abandoned
property law designates another person.
Section 6.05
Reinstatement
. If the Trustee or the Paying Agent is unable to apply any money or shares of Common Stock
in accordance with Section 6.02 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the Companys
obligations under the Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 6.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money and shares of Common Stock in accordance with Section 6.02;
provided, however
, that if the Company makes any payment of interest on, principal of or payment or
delivery in respect of any Note following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Notes to receive such payment from the money or
shares of Common Stock, if any, held by the Trustee or Paying Agent.
ARTICLE 7.
SUPPLEMENTAL INDENTURES
Section 7.01
Supplemental Indentures Without Consent of Holders
. In lieu of Section 9.1 of the Original Indenture, the Company and the Trustee may amend or
supplement the Indenture or the Notes without notice to or the consent of any Holder of the Notes
to:
(a) provide for the assumption by a Successor Company of the Companys obligations under
the Indenture;
(b) add guarantees with respect to the Notes;
(c) secure the Notes;
(d) add to the Companys covenants for the benefit of the Holders or surrender any right
or power conferred upon the Company by the Indenture;
(e) make any change that does not adversely affect the rights of any Holder, including
without limitation curing any omission, ambiguity, manifest error or defect and correcting any
inconsistency in the Indenture;
(f) add provisions for the issuance of Additional Notes;
(g) comply with any requirement of the Commission in connection with the qualification of
the Indenture under the Trust Indenture Act;.
50
(h) add additional Events of Default;
(i) evidence the acceptance or appointment of a successor Trustee;
(j) provide for uncertificated Notes in addition to or in place of certificated Notes;
provided
,
however
, that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code; or
(k) conform any provision of this Supplemental Indenture and the form or terms of the
Notes to the Description of Debt Securities section as set forth in the final prospectus
related to the offering and sale of the Notes dated August 2, 2010, as amended and
supplemented by the Description of Notes section as set forth in the final prospectus
supplement related to the offering and sale of the Notes dated August 3, 2010, as supplemented
by a pricing term sheet to the extent that such description was intended to be a verbatim
recitation of a provision in the Supplemental Indenture or the form or terms of the Notes.
Section 7.02
Supplemental Indentures With Consent of Holders
. Subject to certain exceptions, the Indenture or the Notes may be amended with the consent
of the Holders of at least a majority in aggregate principal amount of the Notes then Outstanding
(including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes) and, subject to certain exceptions, any past Default or compliance
with any provisions may be waived with the consent of the Holders of a majority in aggregate
principal amount of the Notes then Outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes). In lieu of Section
9.2 of the Original Indenture, which shall not apply with respect to the Notes, without the consent
of each Holder affected thereby, no amendment, supplement or waiver, including a waiver in relation
to a past Event of Default, may:
(a) reduce the percentage of the aggregate principal amount of then Outstanding Notes
whose Holders must consent to an amendment of the Indenture or to waive any past Default;
(b) reduce the rate of or extend the stated time for payment of interest on any Notes;
(c) reduce the principal of, or extend the Stated Maturity of any Notes;
(d) make any change that adversely affects the conversion rights of any Notes;
(e) reduce the Fundamental Change Purchase Price of any Note or amend or modify in any
manner adverse to the Holders of Notes the Companys obligation to make any such payment,
whether through an amendment or waiver of provisions in the covenants, definitions related
thereto or otherwise;
(f) make any Notes payable in any currency other than that stated in the Notes;
51
(g) change the ranking of the Notes;
(h) impair the right of any Holder to receive payment of principal of and interest on, or
the consideration due upon conversion of, such Holders Notes on or after the due dates
therefore or to institute suit for the enforcement of any payment on or with respect to such
Holders Notes; or
(i) make any change to the provisions of Article 10 if such change would adversely affect
the rights of the Holders.
The consent of the Holders is not necessary under the Indenture to approve the particular form
of any proposed amendment. It is sufficient if such consent approves the substance of the proposed
amendment.
Section 7.03
Notice of Amendment or Supplement
. After an amendment or supplement under this Article 7 or Article IX of the Original
Indenture becomes effective, the Company shall mail to the Holders a notice briefly describing such
amendment or supplement. However, the failure to give such notice to all the Holders, or any
defect in the notice, shall not impair or affect the validity of the amendment or supplement.
ARTICLE 8.
SUCCESSOR COMPANY
Section 8.01
Consolidation, Merger and Sale of Assets
. The provisions in Articles V of the Original Indenture shall not apply with respect to the
Notes, and this Article 8 supersedes the entirety thereof. The Company shall not consolidate with
or merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole,
to, another person, unless:
(a) the resulting, surviving or transferee person (if not the Company) (the
Successor
Company
) is a corporation or limited liability company (that is treated as a corporation for
U.S. federal income tax purposes) organized and existing under the laws of the U.S., any state
thereof or the District of Columbia and such Successor Company (if not the Company) expressly
assumes by supplemental indenture all of the Companys obligations under the Notes and the
Indenture;
(b) if as a result of such transaction the Notes become convertible into common stock or
other securities issued by a third party, such third party fully and unconditionally
guarantees all obligations of the Company or such Successor Company under the Notes and
the Supplemental Indenture;
(c) immediately after giving effect to such transaction, no Default or Event of Default
has occurred and is continuing under the Indenture; and
(d) the Company has delivered to the Trustee the Officers Certificate and Opinion of
Counsel pursuant to Section 8.03.
52
Section 8.02
Successor Person Substituted
. In case of any such consolidation, merger, sale, conveyance, transfer, lease or other
disposition set forth in Section 8.01, in which the Company is not the Successor Company and upon
the assumption by the Successor Company by supplemental indenture executed and delivered to the
Trustee of the due and punctual payment of the principal of and interest on all of the Notes, and
the due and punctual performance and observance of all of the covenants and conditions of the
Indenture to be performed or satisfied by the Company, such Successor Company shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under the Indenture,
with the same effect as if it had been named herein as the party of this first part, and the
Company shall be discharged from its obligations under the Notes and the Indenture, except in the
case of any such lease. Such Successor Company thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company any or all of the Notes, issuable hereunder
that theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon
the order of such Successor Company instead of the Company and subject to all the terms, conditions
and limitations in the Indenture prescribed, the Trustee shall authenticate and shall deliver, or
cause to be authenticated and delivered, any Notes that previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and any Notes that such
Successor Company thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under
the Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this
Supplemental Indenture as though all of such Notes had been issued at the date of the execution
hereof. In the event of any such consolidation, merger, sale, conveyance, transfer or other
disposition upon compliance with this Article 8 the person named as the Company in the first
paragraph of this Supplemental Indenture or any successor that shall thereafter have become such in
the manner prescribed in this Article 8 may be dissolved, wound up and liquidated at any time
thereafter and such person shall be discharged from its liabilities as obligor and maker of the
Notes and from its obligations under the Indenture.
Section 8.03
Opinion of Counsel to Be Given to Trustee
. Prior to execution of any supplemental indenture pursuant to this Article 8, the Trustee
shall receive an Officers Certificate and an Opinion of Counsel in accordance with Section 12.4 of
the Original Indenture as conclusive evidence that consolidation, merger, sale, conveyance,
transfer, lease or other disposition set forth in Section 8.01 and any such assumption complies
with the provisions of this Article 8.
ARTICLE 9.
MISCELLANEOUS
Section 9.01
Governing Law
. THIS SUPPLEMENTAL INDENTURE AND EACH OF THE NOTES, AND ANY CLAIM CONTROVERSY OR DISPUTE
ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE AND EACH OF THE NOTES, SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
53
Section 9.02
Legal Holidays
. All references in Section 12.7 of the Original Indenture to Repayment Date shall, for
purposes of the Notes, be deemed to be references to Fundamental Change Purchase Date.
Section 9.03
No Security Interest Created
. Nothing in this Supplemental Indenture or in the Notes, expressed or implied, shall be
construed to constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 9.04
Trust Indenture Act
. This Supplemental Indenture will be subject to, and governed by, the provisions of the
Trust Indenture Act that are required to be part of this Supplemental Indenture and shall, to the
extent applicable, be governed by such provisions.
Section 9.05
Benefits of Supplemental Indenture
. Nothing in this Supplemental Indenture or in the Notes, express or implied, shall give to
any person (including any Registrar, any Paying Agent, any Conversion Agent, any Bid Solicitation
Agent and their successors hereunder), other than the parties hereto, any benefit or any legal or
equitable right, remedy or claim under this Supplemental Indenture.
Section 9.06
Calculations
. Except as otherwise provided in this Supplemental Indenture, the Company shall be
responsible for making all calculations called for under the Notes. These calculations include,
but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock,
accrued interest payable on the Notes and the Conversion Rate. The Company shall make all these
calculations in good faith and, absent manifest error, the Companys calculations shall be final
and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each
of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is entitled
to rely conclusively upon the accuracy of the Companys calculations without independent
verification. The Trustee will forward the Companys calculations to any Holder of Notes upon the
request of that Holder at the sole cost and expense of the Company.
Section 9.07
Effect of Headings and Table of Contents
. The Article and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 9.08
Execution in Counterparts
. This Supplemental Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one and the same
instrument.
Section 9.09
Separability Clause
. In case any provision in this Supplemental Indenture or in any Note or coupon shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 9.10
Ratification of Original Indenture
. The Original Indenture, as supplemented by this Supplemental Indenture, is in all respects
ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Original
Indenture in the manner and to
54
the extent herein and therein provided. For the avoidance of doubt,
each of the Company and each Holder of the Notes, by its acceptance of such Notes, acknowledges and
agrees that all of the rights, privileges, protections, immunities and benefits afforded to the
Trustee under the Original Indenture are deemed to be incorporated herein, and shall be enforceable
by the Trustee hereunder, in each of its capacities hereunder as if set forth herein in full.
Section 9.11
The Trustee
. The recitals in this Supplemental Indenture are made by the Company only and not the
Trustee, and all of the provisions contained in the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the
Notes and of this Supplemental Indenture as fully and with like effect as set forth in full herein.
Section 9.12
No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the Company shall have any
liability for any obligations of the Company under the Notes, the Indenture or any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
ARTICLE 10.
SUBORDINATION
Section 10.01
Agreement to Subordinate
. The Company agrees, and each Holder by accepting a Note agrees, that the Indebtedness
evidenced by the Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article 10, to the prior payment in full of all Senior Indebtedness (whether
outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Indebtedness.
Section 10.02
Liquidation; Dissolution; Bankruptcy
Upon any distribution to creditors of the Company in a liquidation or dissolution of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating
to the Company or its property, in an assignment for the benefit of creditors or any marshaling of
the Companys assets and liabilities:
(1) holders of Senior Indebtedness will be entitled to receive payment in full of all
Obligations due in respect of such Senior Indebtedness (including interest after the commencement
of any bankruptcy proceeding at the rate specified in the applicable Senior Indebtedness) before
the Holders of Notes will be entitled to receive any payment with respect to the Notes; and
(2) until all Obligations with respect to Senior Indebtedness (as provided in clause (1)
above) are paid in full, any distribution to which Holders would be entitled but for this Article
10 will be made to holders of Senior Indebtedness, as their interests may appear.
55
(b) To the extent any payment of Senior Indebtedness is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar person under any bankruptcy, reorganization,
insolvency, receivership or similar proceeding, the Senior Indebtedness or part thereof
originally intended to be satisfied shall be deemed to be reinstated and outstanding as if
such payment had not occurred and the provisions of this Article 10 will be applied
accordingly.
Section 10.03
Default on Designated Senior Indebtedness
. (a) The Company may not make, directly or indirectly through any Subsidiary or other
person, any payment or distribution to the Trustee or any Holder in respect of Obligations
with respect to the Notes and may not acquire from the Trustee or any Holder any Notes for
cash or property until all principal and other Obligations with respect to the Senior
Indebtedness have been paid in full if:
(1) a default in the payment of principal, premium, if any, interest or any other Obligation
due on any Designated Senior Indebtedness (a
Payment Default
) occurs and is continuing
(including, without limitation, a payment that has become due as a result of the acceleration of
any Designated Senior Indebtedness); or
(2) any other default (a
Nonpayment Default
) occurs and is continuing on any series of
Designated Senior Indebtedness that permits holders of that series of Designated
Senior Indebtedness to accelerate its maturity and the Trustee receives a notice of such
default (a
Payment Blockage Notice
) from the Company or a Representative of such holders. The
Trustee shall promptly deliver a copy of any Payment Blockage Notice received by it to the Company
and the Company shall promptly deliver such copy to all holders of Designated Senior Indebtedness.
If the holders of a majority in principal amount of all Designated Senior Indebtedness outstanding
at the time such Payment Blockage Notice is delivered to the Company shall, within 10 days of their
receipt thereof, deliver to the Company and the Trustee a notice rescinding such Payment Blockage
Notice, such Payment Blockage Notice shall be deemed not to have been delivered for all purposes of
the Indenture. If the Trustee receives any such Payment Blockage Notice, no subsequent Payment
Blockage Notice will be effective for purposes of this Section 10.03 unless and until at least 360
days have elapsed since the delivery of the immediately prior Payment Blockage Notice.
No Nonpayment Default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee may be, or may be made, the basis for a subsequent Payment Blockage
Notice unless such default has been cured or waived for a period of not less than 90 days.
(b) The Company may and will resume payments on and distributions in respect of the Notes
and may acquire them upon the earlier of:
(1) in the case of a Payment Default, upon the date upon which such default is cured or
waived, and
56
(2) in the case of a Nonpayment Default, upon the earlier of the date on which such Nonpayment
Default is cured or waived or 179 days after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of any Designated Senior Indebtedness has been accelerated
(in which event the foregoing subclause (1) shall apply),
if this Article 10 otherwise permits such payment, distribution or acquisition at the time of such
payment, distribution or acquisition.
Section 10.04
Acceleration of Notes
. If payment of the Notes is accelerated because of an Event of Default, the Company may not
make, directly or indirectly through any Subsidiary or other person, any payment or distribution to
the Trustee or any Holder in respect of Obligations with respect to the Notes and may not acquire
from the Trustee or any Holder any Notes for cash or property until all principal and other
Obligations with respect to the Senior Indebtedness have been paid in full or such acceleration is
rescinded in accordance with the terms of this Supplemental Indenture. The Company will promptly
notify holders of Senior Indebtedness of any such acceleration.
Section 10.05
When Distribution Must Be Paid Over
. In the event that the Trustee or any Holder of the Notes receives any payment of any
Obligations with respect to the Notes at a time when the payment is prohibited by Section 10.03 or
Section 10.04, such payment will be held by the Trustee or such Holder, in trust for the benefit
of, and will be paid forthwith over and delivered, upon written request, to, the holders of Senior
Indebtedness as their interests may appear or their Representative, if any, under the
agreement, indenture or other document (if any) pursuant to which Senior Indebtedness may have been
issued, as their respective interests may appear, for application to the payment of all Obligations
with respect to Senior Indebtedness remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform only
those obligations on the part of the Trustee as are specifically set forth in this Article 10, and
no implied covenants or obligations with respect to the holders of Senior Indebtedness will be read
into this Supplemental Indenture against the Trustee. The Trustee will not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness, and will not be liable to any such holders if
the Trustee pays over or distributes to or on behalf of Holders or the Company or any other person
money or assets to which any holders of Senior Indebtedness are then entitled by virtue of this
Article 10, except if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.
Section 10.06
Notice by Company
. The Company will promptly notify the Trustee and the Paying Agent of any facts known to the
Company that would cause a payment of any Obligations with respect to the Notes to violate this
Article 10, but failure to give such notice will not affect the subordination of the Notes to the
Senior Indebtedness as provided in this Article 10.
Section 10.07
Subrogation
. After all Senior Indebtedness is paid in full and until the Notes are paid in full, Holders
of Notes will be subrogated (equally and ratably with
57
all other Indebtedness pari passu with the
Notes) to the rights of holders of Senior Indebtedness to receive distributions applicable to
Senior Indebtedness to the extent that distributions otherwise payable to the Holders of Notes have
been applied to the payment of Senior Indebtedness. A distribution made under this Article 10 to
holders of Senior Indebtedness that otherwise would have been made to Holders of Notes is not, as
between the Company and Holders, a payment by the Company on the Notes.
Section 10.08
Relative Rights
. This Article 10 defines the relative rights of Holders of Notes and holders of Senior
Indebtedness. Nothing in this Supplemental Indenture will:
(1) impair, as between the Company and Holders of Notes, the obligation of the Company, which
is absolute and unconditional, to pay principal of, and interest, if any, on, the Fundamental
Change Repurchase Price of, and to pay or deliver any amount due upon conversion of, the Notes in
accordance with their terms;
(2) affect the relative rights of Holders of Notes and creditors of the Company other than
their rights in relation to holders of Senior Indebtedness; or
(3) prevent the Trustee or any Holder of Notes from exercising its available remedies upon a
Default or Event of Default, subject to the rights of holders and owners of Senior Indebtedness to
receive distributions and payments otherwise payable to Holders of Notes.
If the Company fails because of this Article 10 to pay principal of, or interest, if any, on,
the Fundamental Change Repurchase Price of, or to pay or deliver any amount due upon conversion of,
the Notes in accordance with their terms, the failure is still a Default or Event of Default.
Section 10.09
Subordination May Not Be Impaired by Company
. No right of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Notes may be impaired by any act or failure to act by the Company or
any Holder or by the failure of the Company or any Holder to comply with this Supplemental
Indenture.
Section 10.10
Distribution or Notice to Representative or Holders of Senior Indebtedness
. Whenever a distribution is to be made or a notice given to holders of any series of Senior
Indebtedness, the distribution may be made and the notice given to their Representative, if they
have appointed one, and if no Representative has been appointed by the holders of any series of
Senior Indebtedness, such distribution or notice shall be made or given directly to such holders.
Upon any payment or distribution of assets of the Company referred to in this Article 10, the
Trustee and the Holders of Notes will be entitled to rely upon any order or decree made by any
court of competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other person making any distribution to the Trustee or to the
Holders of Notes for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of the Company, the
58
amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 10.
Section 10.11
Rights of Trustee and Paying Agent
. Notwithstanding the provisions of this Article 10 or any other provision of the Indenture,
the Trustee will not be charged with knowledge of the existence of any facts that would prohibit
the making of any payment or distribution by the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Notes, unless the Trustee has received at its Corporate Trust
Office at least three Business Days prior to the date of such payment written notice of facts that
would cause the payment of any Obligations with respect to the Notes to violate this Article 10,
except for any acceleration of the Notes prior to making any such payment or distribution which is
known by any officer of the Trustee prior to making any such payment or distribution. The notice
may only be given by the Company or a Representative. For the avoidance of doubt, no such notice
shall constitute a Payment Blockage Notice unless
delivered in accordance with Section 10.03(a)(2). Nothing in this Article 10 will impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.7 of the Original Indenture.
The Trustee in its individual or any other capacity may hold Senior Indebtedness with the same
rights it would have if it were not Trustee. Any Registrar, any Paying Agent, any Conversion
Agent, any Bid Solicitation Agent and their successors hereunder may do the same with like rights.
Section 10.12
Authorization to Effect Subordination; Filing Proof of Claim
. Each Holder of Notes, by the Holders acceptance thereof, authorizes and directs the
Trustee on such Holders behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 10, and appoints the Trustee to act as
such Holders attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding referred to in
Section 6.9 of the Original Indenture at least 30 days before the expiration of the time to file
such claim or any Representative, are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Notes.
Section 10.13
Reliance and Amendments
(a) Each Holder of Notes by its acceptance thereof acknowledges and agrees that the
subordination provisions set forth in this Article 10 are, and are intended to be, an
inducement and a consideration for each holder of any Senior Indebtedness, whether such Senior
Indebtedness was created or acquired before or after the issuance of the Notes, to acquire and
continue to hold, or to continue to hold, such Senior Indebtedness, and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold or in continuing to hold such Senior Indebtedness.
(b) The provisions of this Article 10 may not be amended or modified without the written
consent of the holders of all Senior Indebtedness. In addition, any amendment to, or waiver
of, the provisions of this Article 10 that adversely affects the rights of the
59
Holders of the
Notes will require the consent of the Holders of a majority in aggregate principal amount of
Notes then Outstanding.
Section 10.14
No Layering
The Company will not incur, create, issue, assume, guarantee or otherwise become liable for
any Indebtedness that is contractually subordinated or junior in right of payment to any Senior
Indebtedness and senior in right of payment to the Notes. No such Indebtedness will be considered
to be contractually subordinated or junior in right of payment to any Senior Indebtedness by virtue
of being unsecured or by virtue of being secured on a junior priority basis.
Section 10.15
No Waiver of Subordination Provisions
. Without in any way limiting the generality of Section 10.09, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders, without incurring responsibility to the Holders and without impairing or
releasing the subordination provided in this Article 10 or the obligations hereunder of the Holders
to the holders of Senior Indebtedness, do any one or more of the following: (a) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness,
or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (b) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(c) release any person liable in any manner for the collection of Senior Indebtedness; and (d)
exercise or refrain from exercising any rights against the Company and any other person.
[Remainder of the page intentionally left blank]
60
IN WITNESS WHEREOF
, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the day and year first above written.
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TELEFLEX INCORPORATED
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By:
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/s/
C. Jeffrey Jacobs
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Name:
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C. Jeffrey Jacobs
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Title:
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Treasurer
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WELLS FARGO BANK, N.A., as Trustee
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By:
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/s/
Richard Prokosch
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Name:
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Richard Prokosch
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Title:
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Vice President
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SCHEDULE A
The following table sets forth the number of Additional Shares by which they Conversion Rate
shall be increased pursuant to Section 4.06 based on the Stock Price and Effective Date set forth
below.
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Stock Price
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Effective Date
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$53.32
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$55.00
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$60.00
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$65.00
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$70.00
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$80.00
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$90.00
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$100.00
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$120.00
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$140.00
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$160.00
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$180.00
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August 9, 2010
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2.4462
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2.3988
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1.8223
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1.4229
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|
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1.1561
|
|
|
|
0.7968
|
|
|
|
0.5412
|
|
|
|
0.3503
|
|
|
|
0.1375
|
|
|
|
0.0542
|
|
|
|
0.0248
|
|
|
|
0.0075
|
|
August 1, 2011
|
|
|
2.4462
|
|
|
|
2.2671
|
|
|
|
1.6831
|
|
|
|
1.2788
|
|
|
|
1.0186
|
|
|
|
0.7023
|
|
|
|
0.4689
|
|
|
|
0.2975
|
|
|
|
0.1053
|
|
|
|
0.0337
|
|
|
|
0.0093
|
|
|
|
0.0000
|
|
August 1, 2012
|
|
|
2.4186
|
|
|
|
2.1625
|
|
|
|
1.5680
|
|
|
|
1.1563
|
|
|
|
0.8944
|
|
|
|
0.6024
|
|
|
|
0.4000
|
|
|
|
0.2501
|
|
|
|
0.0824
|
|
|
|
0.0237
|
|
|
|
0.0042
|
|
|
|
0.0000
|
|
August 1, 2013
|
|
|
2.3672
|
|
|
|
2.1010
|
|
|
|
1.4760
|
|
|
|
1.0431
|
|
|
|
0.7621
|
|
|
|
0.5051
|
|
|
|
0.3283
|
|
|
|
0.2038
|
|
|
|
0.0610
|
|
|
|
0.0135
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
August 1, 2014
|
|
|
2.3591
|
|
|
|
2.0756
|
|
|
|
1.4063
|
|
|
|
0.9483
|
|
|
|
0.6473
|
|
|
|
0.3811
|
|
|
|
0.2430
|
|
|
|
0.1443
|
|
|
|
0.0353
|
|
|
|
0.0012
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
August 1, 2015
|
|
|
2.3794
|
|
|
|
2.0643
|
|
|
|
1.3271
|
|
|
|
0.8247
|
|
|
|
0.4993
|
|
|
|
0.2336
|
|
|
|
0.1322
|
|
|
|
0.0626
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
August 1, 2016
|
|
|
2.4462
|
|
|
|
2.0944
|
|
|
|
1.2521
|
|
|
|
0.7020
|
|
|
|
0.3644
|
|
|
|
0.1198
|
|
|
|
0.0638
|
|
|
|
0.0228
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
August 1, 2017
|
|
|
2.4462
|
|
|
|
1.8734
|
|
|
|
0.3582
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
EXHIBIT A
[FORM OF FACE OF NOTE]
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS EXCHANGEABLE FOR
NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE
OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
TELEFLEX INCORPORATED
3.875% Convertible Senior Subordinated Note due 2017
CUSIP No. 879369AA4
TELEFLEX INCORPORATED, a Delaware corporation (herein called the
Company
, which term
includes any successor person under the Indenture hereinafter referred to), for value received,
hereby promises to pay CEDE & CO., or registered assigns, [ ] MILLION DOLLARS ($[ ]) (or such lesser principal amount as shall be reflected in the books and records of the Trustee
and Depository) on August 1, 2017 unless earlier converted or repurchased, and to pay interest
thereon as set forth in the manner, at the rates and to the persons set forth in the Indenture.
This Note shall bear interest at a rate of 3.875% per annum from August 9, 2010 or from the
most recent date to which interest had been paid or provided to, but excluding, the next scheduled
Interest Payment Date, until the principal hereof shall be repaid. Interest on this Note will be
computed on the basis of a 360-day year composed of twelve 30-day months. Interest is payable
semi-annually in arrears on each February 1 and August 1, commencing on February 1, 2011, to the
person in whose name this Note (or one or more predecessor securities) is registered at the close
of business on the Regular Record Date for such interest. Any payment that is required to be made
on any day that is not a Business Day will be made on the next succeeding Business Day and no
interest on such payment will accrue in respect of the delay. Additional Interest will be payable
at the option of the Company on the terms set forth in Section 5.03 of the within-mentioned
Supplemental Indenture, and any reference to interest on, or in respect of, any Note therein shall
be deemed to include Additional Interest if, in such context, Additional Interest is, was or would
be payable pursuant to such Section 5.03 and any express mention of the payment of Additional
Interest in any provision therein shall not be construed as excluding Additional Interest in those
provisions thereof where such express mention is not made. The Notes will not have the benefit of
Article XIII of the Original Indenture.
The Company will pay interest on overdue principal (including the Fundamental Change Purchase
Price, if applicable), and, to the extent lawful, on Defaulted Amounts, in each case at the annual
rate of the then-applicable interest rate from the required payment date. Interest not paid when
due and any interest on principal (including the Fundamental Change Purchase Price, if applicable)
or interest not paid when due shall be paid to Holders by the Company in accordance with the
provisions of Section 5.06 of the Supplemental Indenture.
The Company shall pay principal of and interest on this Note, so long as such Note is a Global
Note, in immediately available funds to the Depository or its nominee, as the case may be, as the
registered Holder of such Note. As provided in and subject to the provisions of the Indenture, the
Company shall pay principal of any Notes (other than Notes that are Global Notes) at the office or
agency designated by the Company for that purpose. The Company has initially designated the
Trustee as its Paying Agent and Registrar in respect of the Notes and its agency in New York, New
York as a place where Notes may be presented for payment or for registration of transfer.
A-2
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
In the case of any conflict between this Note and the Indenture, the provisions of the
Indenture shall control. This Note, and any claim or controversy or dispute arising under or
related to this Note, shall be governed by, and construed in accordance with, the laws of the State
of New York.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
[Remainder of page intentionally left blank]
A-3
IN WITNESS WHEREOF, TELEFLEX INCORPORATED has caused this instrument to be signed
manually or by facsimile by two of its duly authorized Officers.
Dated: [ ]
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TELEFLEX INCORPORATED
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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A-4
TRUSTEES CERTIFICATE OF AUTHENTICATION
WELLS FARGO BANK, N.A.,
as Trustee, certifies that this is one of the Notes referred to in the
within-mentioned Indenture.
Dated:
WELLS FARGO BANK, N.A., as Trustee
By:
Authorized Signatory
A-5
[FORM OF REVERSE OF NOTE]
TELEFLEX INCORPORATED
3.875% Convertible Senior Subordinated Note due 2017
This Note is one of a duly authorized issue of Securities of the Company (herein called the
Notes
), issued under an Indenture dated as of August 2, 2010, as previously amended and
supplemented from time to time in accordance with the terms thereof (herein called the
Original
Indenture
) and as further supplemented by the First Supplemental Indenture dated as of August 9,
2010 (herein called the
Supplemental Indenture
and the Original Indenture, as supplemented by the
Supplemental Indenture, the
Indenture
) by and between the Company and Wells Fargo Bank, N.A.,
herein called the
Trustee
, and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. Additional Notes may be issued in an unlimited aggregate principal
amount, subject to certain conditions specified in the Indenture.
This Note is not subject to redemption at the option of the Company prior to August 1, 2017
and, for the avoidance of doubt, this Note is not subject to the provisions of Article III of the
Original Indenture.
The provisions in Articles VIII and XI of the Original Indenture shall not apply with respect
to the Notes, and Article 6 of the Supplemental Indenture supersedes the entirety thereof.
The payment of principal, accrued and unpaid interest, if any, and payment of the Fundamental
Change Purchase Price on the Notes are subordinated, to the extent and in the manner provided in
Article 10 of the Supplemental Indenture, to the prior payment in full of all Senior Indebtedness
of the Company, including Senior Indebtedness of the Company incurred after the date of the
Indenture.
As provided in and subject to the provisions of the Indenture, upon the occurrence of a
Fundamental Change, the Holder has the right, at such Holders option, to require the Company to
purchase all of such Holders Notes or any portion thereof (in principal amounts of $1,000 or
integral multiples thereof) on the Fundamental Change Purchase Date at a price equal to the
Fundamental Change Purchase Price.
As provided in and subject to the provisions of the Indenture, the Holder hereof has the
right, at its option (i) during certain periods and upon the occurrence of certain conditions
specified in the Indenture, prior to the close of business on the Business Day immediately
preceding May 1, 2017, and (ii) on or after May 1, 2017, at any time prior to the close of business
on the second Scheduled Trading Day immediately preceding the Stated Maturity, to convert this Note
or a portion thereof that is $1,000 or an integral multiple thereof, into cash, shares of Common
Stock or a combination thereof, at the Companys election, at the applicable Conversion Rate
specified in the Indenture, as adjusted from time to time and under certain circumstances as
provided in the Indenture.
A-6
As provided in and subject to the provisions of the Indenture, the Company will make all
payments in respect of the Fundamental Change Purchase Price and the principal amount on the Stated
Maturity thereof, as the case may be, to the holder who surrenders a Note to the Paying Agent to
collect such payments in respect of the Note. The Company will pay cash amounts in money of the
U.S. that at the time of payment is legal tender for payment of public and private debts.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Notes to be effected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified percentages in principal
amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain past Defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, in case certain Events of
Default, as defined in the Indenture, shall have occurred and be continuing, the principal of and
interest on all Notes may be declared due and payable, by either the Trustee or Holders of at least
25% in aggregate principal amount of Notes then Outstanding, and upon said declaration shall become
due and payable, in the manner, with the effect and subject to the conditions provided in the
Indenture.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay or
deliver, as the case may be, the principal of (including the Fundamental Change Purchase Price),
interest on and the consideration due upon conversion of, this Note at the time, place and rate,
and in the coin and currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note is registrable in the Register, upon surrender of this Note for registration
of transfer at the office or agency of the Company in any place where the principal of and interest
on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Notes of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to certain limitations
therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes and of
like tenor of a different authorized denomination, as requested by the Holder surrendering the
same.
A-7
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or Trustee may treat the person in whose name the Note is registered
as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary. All defined terms used
in this Note that are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
A-8
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be
construed as though they were written out in full
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TEN COM as tenants in common
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UNIF GIFT MIN
ACT
Custodian
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(Cust)
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TEN ENT as tenants by the entireties
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(Minor)
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JT TEN as joint tenants with right of
Survivorship and not as tenants in common
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Uniform Gifts to Minors Act ____________(State)
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Additional abbreviations may also be used though not in the above list.
A-9
ATTACHMENT 1
[FORM OF NOTICE OF CONVERSION]
To: Teleflex Incorporated
The undersigned owner of this Note hereby irrevocably exercises the option to convert this Note, or
a portion hereof (which is $1,000 or an integral multiple hereof) below designated, into cash,
shares of Common Stock or a combination of cash and shares of Common Stock, at the Companys
election, in accordance with the terms of the Indenture referred to in this Note, and directs that
cash payable and any shares of Common Stock issuable and deliverable upon conversion, together with
any cash in payment for fractional shares of Common Stock, and any Notes representing any
unconverted principal amount hereof, be paid or issued and delivered, as the case may be, to the
registered Holder hereof unless a different name has been indicated below. Subject to certain
exceptions set forth in the Indenture, if this notice is being delivered on a date after the close
of business on a Regular Record Date and prior to the open of business on the related Interest
Payment Date, this notice is accompanied by payment of an amount equal to the interest payable on
such Interest Payment Date of the principal of this Note to be converted. If any shares of Common
Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay
all transfer taxes payable with respect hereto as set forth in Section 4.08 of the Supplemental
Indenture. Any amount required to be paid by the undersigned on account of interest accompanies
this Note.
Principal amount to be converted (in an integral multiple of $1,000, if less than all):
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Signature(s)
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Signature(s) must be guaranteed by an
institution which is a
member of one of the following recognized signature Guarantee
Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP);
(ii) The New York Stock Exchange Medallion Program (MNSP);
(iii) The Stock Exchange Medallion Program (SEMP) or
(iv) another guarantee program acceptable to the Trustee.
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Signature Guarantee
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A-10
Fill in for registration of any shares of Common Stock and Notes if to be issued otherwise
than to the registered Holder.
(Name)
(Address)
Please print Name and Address
(including zip code number)
Social Security or other Taxpayer
Identifying Number ______________________________
A-11
ATTACHMENT 2
[FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE]
To: Teleflex Incorporated
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Teleflex
Incorporated (the
Company
) as to the occurrence of a Fundamental Change with respect to the
Company and specifying the Fundamental Change Purchase Date and requests and instructs the Company
to pay to the registered holder hereof in accordance with the applicable provisions of this Note
and the Indenture referred to in this Note (1) the entire principal amount of this Note, or the
portion thereof (that is $1,000 principal amount or an integral multiple thereof) below designated,
and (2) if such Fundamental Change Purchase Date does not fall during the period after a Regular
Record Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest
thereon to, but excluding, such Fundamental Change Purchase Date.
In the case of certificated Notes, the certificate numbers of the Notes to be repurchased are as
set forth below:
Dated: _______________
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Signature(s)
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Social Security or Other Taxpayer Identification
Number
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principal
amount to be repaid (if less than all):
$
,000
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NOTICE: The signature on the Fundamental Change
Purchase
Notice must correspond with the name as written upon the face
of the Note in every particular without alteration or
enlargement or any change whatever.
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A-12
ATTACHMENT 3
[FORM OF ASSIGNMENT AND TRANSFER]
For
value received
hereby sell(s), assign(s) and transfer(s)
unto
(Please insert social security or Taxpayer Identification
Number of assignee) the within Note, and hereby irrevocably constitutes and appoints
to transfer the said Note on the books of the Company, with full power of
substitution in the premises.
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Signature(s)
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Signature(s) must be guaranteed by an
institution which is a member of one of the following recognized
signature Guarantee Programs:
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(i) The Securities Transfer Agent Medallion Program (STAMP);
(ii) The New York Stock Exchange Medallion Program (MNSP);
(iii) The Stock Exchange Medallion Program (SEMP) or
(iv) another guarantee
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A-13
Exhibit
10.4
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To:
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Teleflex Incorporated
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155 South Limerick Road
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Limerick, PA 19468
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From:
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JPMorgan Chase Bank, National Association
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P.O. Box 161
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60 Victoria Embankment
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London EC4Y 0JP
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England
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Re:
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Issuer Warrant Transaction
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Date:
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August 3, 2010
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Dear Sir(s):
The purpose of this communication (this
Confirmation
) is to set forth the terms and
conditions of the above-referenced transaction entered into on the Trade Date specified below (the
Transaction
) between JPMorgan Chase Bank, National Association, London Branch (
Dealer
) and
Teleflex Incorporated (
Issuer
). This communication constitutes a Confirmation as referred to
in the ISDA Master Agreement specified below.
1. This Confirmation is subject to, and incorporates, the definitions and provisions of the
2006 ISDA Definitions (the
2006 Definitions
) and the definitions and provisions of the 2002 ISDA
Equity Derivatives Definitions (the
Equity Definitions
, and together with the 2006 Definitions,
the
Definitions
), in each case as published by the International Swaps and Derivatives
Association, Inc. (
ISDA
). In the event of any inconsistency between the 2006 Definitions and the
Equity Definitions, the Equity Definitions will govern. For purposes of the Equity Definitions,
each reference herein to a Warrant shall be deemed to be a reference to a Call Option or an Option,
as context requires.
Each party is hereby advised, and each such party acknowledges, that the other party has
engaged in, or refrained from engaging in, substantial financial transactions and has taken other
material actions in reliance upon the parties entry into the Transaction to which this
Confirmation relates on the terms and conditions set forth below.
This Confirmation evidences a complete and binding agreement between Dealer and Issuer as to
the terms of the Transaction to which this Confirmation relates. This Confirmation shall be
subject to an agreement (the
Agreement
) in the form of the 2002 ISDA Master Agreement, as
published by ISDA, as if Dealer and Issuer had executed an agreement in such form on the date
hereof (but without any Schedule except for (i) the election of US Dollars (
USD
) as the
Termination Currency and (ii) the election that the Cross Default provisions of Section 5(a)(vi)
of the Agreement shall apply to Issuer;
provided
that, (a) the words , or becoming capable at such
time of being declared, shall be deleted from clause (1) of Section 5(a)(vi); (b) the following
language shall be added to the end thereof: Notwithstanding the foregoing, a default under
subsection (2) hereof shall not constitute an Event of Default if (i) the default was caused solely
by error or omission of an administrative or operational nature; (ii) funds were available to
enable Issuer to make the payment when due; and (iii) the payment is made within two Local Business
Days of Issuers receipt of written notice of its failure to pay.; and (c) Threshold Amount
means USD 50 million).
JPMorgan Chase Bank, National Association
Organised under the laws of the United States as a National Banking Association
Main Office 1111 Polaris Parkway, Columbus, Ohio 43271
Registered as a branch in England & Wales branch No. BR000746
Registered Branch Office 125 London Wall, London EC2Y 5AJ
Authorised and regulated by the Financial Services Authority
All provisions contained in, or incorporated by reference to, the Agreement will govern
this Confirmation except as expressly modified herein. In the event of any inconsistency between
this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern.
The Transaction hereunder shall be the sole Transaction under the Agreement. If there exists
any ISDA Master Agreement between Dealer and Issuer or any confirmation or other agreement between
Dealer and Issuer pursuant to which an ISDA Master Agreement is deemed to exist between Dealer and
Issuer, then notwithstanding anything to the contrary in such ISDA Master Agreement, such
confirmation or agreement or any other agreement to which Dealer and Issuer are parties, the
Transaction shall not be considered a Transaction under, or otherwise governed by, such existing or
deemed ISDA Master Agreement.
2. The Transaction is a Warrant Transaction, which shall be considered a Share Option
Transaction for purposes of the Equity Definitions. The terms of the particular Transaction to
which this Confirmation relates are as follows:
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General Terms:
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Trade Date:
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August 3, 2010
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Effective Date:
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August 9, 2010 or such other date as
agreed between the parties, subject
to Section 8(k) below
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Components:
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The Transaction will be divided into
individual Components, each with the
terms set forth in this
Confirmation, and, in particular,
with the Number of Warrants and
Expiration Date set forth in this
Confirmation. The payments and
deliveries to be made upon
settlement of the Transaction will
be determined separately for each
Component as if each Component were
a separate Transaction under the
Agreement.
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Warrant Style:
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European
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Warrant Type:
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Call
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Seller:
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Issuer
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Buyer:
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Dealer
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Shares:
|
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The common stock of Issuer, par
value USD 1.00 (Ticker Symbol:
|
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TFX).
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|
Number of Warrants:
|
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For each Component, as provided in
Annex A to this Confirmation;
provided
that, the Number of
Warrants for each Component shall be
automatically increased as of the
date of exercise by Dealer, as one
of the Underwriters (as defined in
the Underwriting Agreement), of
their option pursuant to Section 2
of the Underwriting Agreement
between Issuer and Goldman, Sachs &
Co., Jefferies & Company, Inc.,
Morgan Stanley & Co. Incorporated,
Merrill, Lynch, Pierce, Fenner &
Smith Incorporated and J.P. Morgan
Securities Inc., as representatives
of the Underwriters (the
Underwriting Agreement
), by a
number of Warrants (the
Additional
Warrants
) equal to the product of
(i) the Number of Warrants for such
Component as reflected in Annex A
hereto and (ii) a fraction (A) whose
numerator is the
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2
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aggregate principal
amount of Convertible Securities
issued pursuant to such exercise
(such Convertible Securities, the
Additional Convertible Securities
)
and (B) whose denominator is the
aggregate principal amount of
Convertible Securities issued prior
to such exercise (subject to a
rounding convention determined by
the Calculation Agent).
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Warrant Entitlement:
|
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One Share per Warrant
|
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|
Strike Price:
|
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USD 74.648
|
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|
|
Premium:
|
|
USD [ ] (Premium per Warrant: USD [
]);
provided
that, if the Number of
Warrants is increased pursuant to
the proviso to the definition of
Number of Warrants above, an
additional Premium equal to the
product of (i) the sum of the number
of Additional Warrants for all
Components and (ii) the Premium per
Warrant shall be paid on the
Additional Premium Payment Date.
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Premium Payment Date:
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The Effective Date
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|
Additional Premium Payment Date:
|
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The closing date for the purchase
and sale of the Additional
Convertible Securities.
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Exchange:
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New York Stock Exchange
|
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|
Related Exchange:
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All Exchanges
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|
Procedures for Exercise:
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In respect of any Component:
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Expiration Time:
|
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Valuation Time
|
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Expiration Date:
|
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As provided in
Annex A
to this
Confirmation (or, if such date is
not a Scheduled Trading Day, the
next following Scheduled Trading Day
that is not already an Expiration
Date for another Component);
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provided
that, if that date is a
Disrupted Day, the Expiration Date
for such Component shall be the
first succeeding Scheduled Trading
Day that is not a Disrupted Day and
is not or is not deemed to be an
Expiration Date in respect of any
other Component of the Transaction
hereunder; and
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provided further
that, if the
Expiration Date has not occurred
pursuant to the preceding proviso as
of the Final Disruption Date, the
Calculation Agent shall have the
right to elect, in its sole
discretion, that the Final
Disruption Date shall be the
Expiration Date (irrespective of
whether such date is an Expiration
Date in respect of any other
Component for the Transaction); in
which case, the Calculation Agent,
in its good faith and commercially
reasonable discretion, may determine
the VWAP Price for such Expiration
Date using its good faith estimate
of the value of the Shares on such
Expiration Date based on the volume,
historical trading patterns and
price of the Shares and such other
factors as it deems
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3
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appropriate.
Notwithstanding the foregoing and
anything to the contrary in the
Equity Definitions, if a Market
Disruption Event occurs on any
Expiration Date, the Calculation
Agent may determine that such
Expiration Date is a Disrupted Day
only in part, in which case (i) the
Calculation Agent shall make
adjustments to the Number of
Warrants for the relevant Component
for which such day shall be the
Expiration Date and shall designate
the Scheduled Trading Day determined
in the manner described in the
immediately preceding sentence as
the Expiration Date for the
remaining Warrants for such
Component and (ii) the VWAP Price
for such Disrupted Day may be
adjusted by the Calculation Agent as
appropriate on the basis of the
nature and duration of the relevant
Market Disruption Event. Any
Scheduled Trading Day on which, as
of the date hereof, the Exchange is
scheduled to close prior to its
normal close of trading shall be
deemed not to be a Scheduled Trading
Day; if a closure of the Exchange
prior to its normal close of trading
on any Scheduled Trading Day is
scheduled following the date hereof
but prior to such Scheduled Trading
Day, then such Scheduled Trading Day
shall be deemed to be a Disrupted
Day in full. Section 6.6 of the
Equity Definitions shall not apply
to any Valuation Date occurring on
an Expiration Date.
Final
Disruption Date
means December 1,
2018.
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Market Disruption Event:
|
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Section 6.3(a) of the Equity
Definitions is hereby amended by
(A) deleting the words during the
one hour period that ends at the
relevant Valuation Time, Latest
Exercise Time, Knock-in Valuation
Time or Knock-out Valuation Time, as
the case may be, in clause (ii)
thereof and (B) by replacing the
words or (iii) an Early Closure.
therein with (iii) an Early
Closure, or (iv) a Regulatory
Disruption..
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Section 6.3(d) of the Equity
Definitions is hereby amended by
deleting the remainder of the
provision following the term
Scheduled Closing Time in the
fourth line thereof.
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Regulatory Disruption:
|
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Any event determined by Dealer, in
its good faith and reasonable
discretion, based on the advice of
counsel, to be an event that makes
it reasonably necessary or advisable
with regard to any legal, regulatory
or self-regulatory requirements or
related policies and procedures, for
Dealer to refrain from or decrease
any market activity in connection
with the Transaction. Dealer will
notify Issuer promptly of any
determination that a Regulatory
Disruption has occurred.
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Automatic Exercise:
|
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Applicable; and means that the
Number of Warrants for the
corresponding Expiration Date will
be deemed to be automatically
exercised at the Expiration Time on
such Expiration Date unless Dealer
notifies Seller
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4
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(by telephone or in
writing) prior to the Expiration
Time on such Expiration Date that it
does not wish Automatic Exercise to
occur, in which case Automatic
Exercise will not apply to such
Expiration Date.
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Issuers Telephone Number
and Telex and/or Facsimile Number
and Contact Details for purpose of
Giving Notice:
|
|
As provided in Section 6(a) below.
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|
Settlement Terms:
|
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In respect of any Component:
|
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|
Settlement Method Election:
|
|
Applicable;
provided
that:
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(i) Issuer may elect Cash Settlement
only if, on or prior to the
Settlement Method Election Date,
Issuer delivers written notice to
Dealer stating that Issuer has
elected that Cash Settlement apply
to every Component of the
Transaction and Dealer delivers
written consent to such election by
Issuer, by the second
(2
nd
) Scheduled Trading
Day immediately following the day on
which such notice is delivered by
Issuer;
provided
that, such consent
will not be unreasonably withheld;
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(ii) on such notice delivery date,
Issuer shall represent and warrant
to Dealer in writing that, as of
such notice delivery date:
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(A) none of Issuer or any person
that exercises influence over
Issuers decision to elect Cash
Settlement is aware of any material
nonpublic information regarding
Issuer or the Shares;
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(B) Issuer is electing Cash
Settlement in good faith and not as
part of a plan or scheme to evade
compliance with federal securities
laws;
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(C) the assets of Issuer at their
fair valuation exceed the
liabilities of Issuer, including
contingent liabilities;
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(D) the capital of Issuer is
adequate to conduct the business of
Issuer and the capital of Issuer
will continue to be adequate at the
time of, or as a result of, Cash
Settlement election by Issuer;
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(E) Issuer has the ability to pay
its debts and obligations as such
debts mature and does not intend to
incur debt beyond its ability to pay
as such debts mature;
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(F) Issuer has the power to make
such election and to execute and
deliver any documentation relating
to such election that it is required
by this Confirmation to deliver and
to perform its obligations under
this Confirmation and has taken all
necessary action to authorize such
election, execution, delivery and
performance;
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5
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(G) such election and performance of
its obligations under this
Confirmation do not violate or
conflict with any law applicable to
it, any provision of its
constitutional documents, any order
or judgment of any court or other
agency of government applicable to
it or any of its assets or any
contractual restriction binding on
or affecting it or any of its
assets; and
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(H) Issuer does not have, and will
not attempt to exercise, any
influence over how, when, whether or
at what price Dealer effects any
transaction that Dealer makes with
respect to the Shares during the
period beginning at the time that
Issuer delivers notice of its Cash
Settlement election and ending at
the close of business on the final
day of the Settlement Period,
including, without limitation, the
prices paid or received by Dealer
per Share pursuant to such
transactions, or whether such
transactions are made on any
securities exchange or privately;
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(iii) such Settlement Method
Election shall apply to every
Component; and
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(iv) no event of default has
occurred and is continuing under any
indebtedness of the Issuer or its
subsidiaries in an aggregate
principal amount of USD 10.0 million
or more.
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Notwithstanding the foregoing,
Dealer may refuse to give such
consent with respect to Issuers
Cash Settlement election if Dealer
notifies Issuer that, in the
reasonable judgment of Dealer based
upon the advice of counsel, the
election of Cash Settlement or any
purchases of Shares that Dealer (or
its affiliates) might make in
connection therewith, as a result of
events occurring after the Trade
Date, would raise material risks
under applicable securities laws.
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|
Electing Party:
|
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Issuer
|
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|
Settlement Method Election Date:
|
|
The tenth (10
th
)
Scheduled Trading Day immediately
preceding the scheduled Expiration
Date for the Component with the
earliest scheduled Expiration Date.
|
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|
Default Settlement Method:
|
|
Net Share Settlement
|
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|
Settlement Currency:
|
|
USD
|
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|
Net Share Settlement:
|
|
If Net Share Settlement is
applicable, then on each Settlement
Date, Issuer shall deliver to Dealer
a number of Shares equal to the
Number of Shares to be Delivered for
such Settlement Date to the account
specified by Dealer and cash in lieu
of any fractional Share valued at
the VWAP Price on the Valuation Date
corresponding to such Settlement
Date. If, in
|
6
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the reasonable opinion
of Issuer or Dealer, based on advice
of counsel, for any reason, the
Shares deliverable upon Net Share
Settlement would not be immediately
freely transferable by Dealer under
Rule 144 under the Securities Act of
1933, as amended (the
Securities
Act
), then Dealer may elect to
either (x) accept delivery of such
Shares notwithstanding any
restriction on transfer or (y) have
the provisions set forth in Section
8(b) below apply.
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|
Number of Shares to be Delivered:
|
|
In respect of any Settlement Date,
subject to the last sentence of
Section 9.5 of the Equity
Definitions, the product of (i) the
number of Warrants exercised or
deemed exercised on the related
Exercise Date, (ii) the Warrant
Entitlement and (iii) (A) the excess
of the VWAP Price on the Valuation
Date occurring in respect of such
Exercise Date over the Strike Price
(or, if there is no such excess,
zero)
divided by
(B) such VWAP
Price.
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|
Settlement Price:
|
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VWAP Price
|
|
|
|
VWAP Price:
|
|
For any Exchange Business Day, the
New York Volume Weighted Average
Price per Share for the regular
trading session (including any
extensions thereof) of the Exchange
on such Exchange Business Day
(without regard to pre-open or after
hours trading outside of such
regular trading session), as
published by Bloomberg at 4:15 P.M.,
New York City time (or 15 minutes
following the end of any extension
of the regular trading session), on
such Exchange Business Day, on
Bloomberg page TFX.N <Equity>
AQR (or any successor thereto) (or
if such published volume weighted
average price is unavailable or is
manifestly incorrect, the market
value of one Share on such Exchange
Business Day, as determined by the
Calculation Agent using a volume
weighted method).
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Other Applicable Provisions:
|
|
If Net Share Settlement is
applicable, the provisions of
Sections 9.1(c), 9.4, 9.8, 9.9,
9.10, 9.11 and 9.12 of the Equity
Definitions will be applicable as if
Physical Settlement applied to the
Transaction (and for the avoidance
of doubt, Section 9.1(a) of the
Equity Definitions shall not be
applicable);
provided
that, the
Representation and Agreement
contained in Section 9.11 of the
Equity Definitions shall be modified
by excluding any representations
therein relating to restrictions,
obligations, limitations or
requirements under applicable
securities laws that exist solely as
a result of the fact that Issuer is
the issuer of the Shares.
|
7
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Adjustments:
|
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|
|
In respect of any Component:
|
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|
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|
Method of Adjustment:
|
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Calculation Agent Adjustment. For
the avoidance of doubt, Calculation
Agent Adjustment (including, without
limitation, in respect of
Extraordinary Dividends) shall
continue to apply until the
obligations of the parties
(including any obligations of Issuer
pursuant to Section 8(e) below)
under the Transaction have been
satisfied in full.
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|
Extraordinary Dividend:
|
|
Any Dividend with an ex-dividend
date occurring on or after the Trade
Date and on or prior to the
Expiration Date (or, if any Deficit
Shares are owed pursuant to Section
8(e) below, such later date on which
Issuers obligations under this
Transaction have been satisfied in
full) the amount of which differs
from the Ordinary Dividend Amount
for such dividend or distribution.
If no such ex-dividend date occurs
within a regular quarterly dividend
period, an ex-dividend date with a
Dividend of zero (0) shall be deemed
to have occurred on the last
Scheduled Trading Day of such
regular quarterly dividend period.
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|
Dividend:
|
|
Any dividend or distribution on the
Shares (other than any dividend or
distribution of the type described
in Sections 11.2(e)(i),
11.2(e)(ii)(A) or 11.2(e)(ii)(B) of
the Equity Definitions).
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|
Ordinary Dividend Amount:
|
|
For the first Dividend on the Shares
for which the ex-dividend date
occurs during any regular quarterly
dividend period of Issuer, USD 0.34,
and for any other Dividend on the
Shares for which the ex-dividend
date occurs during the same regular
quarterly dividend period, USD 0.00.
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|
Extraordinary Events:
|
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New Shares:
|
|
In the definition of New Shares in
Section 12.1(i) of the Equity
Definitions, the text in clause (i)
thereof shall be deleted in its
entirety and replaced with publicly
quoted, traded or listed on any of
the New York Stock Exchange, The
NASDAQ Global Market or The NASDAQ
Global Select Market (or their
respective successors).
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|
Consequences of Merger Events:
|
|
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|
|
|
(a) Share-for-Share:
|
|
Modified Calculation Agent Adjustment
|
|
|
|
(b) Share-for-Other:
|
|
Cancellation and Payment
(Calculation Agent Determination)
|
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|
|
(c) Share-for-Combined:
|
|
Cancellation and Payment
(Calculation Agent Determination);
provided
that, the Calculation Agent
may elect Component Adjustment for
all or part of the Transaction.
|
|
|
|
Tender Offer:
|
|
Applicable;
provided however
that,
if an event occurs that constitutes
both a Tender Offer under Section
12.1(d) of the Equity Definitions
and Additional
|
8
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|
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|
|
Termination Event
under this Confirmation, Dealer may
elect, in its commercially
reasonable judgment, whether the
provisions of Section 12.3 of the
Equity Definitions will apply.
|
|
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|
Consequences of Tender Offers:
|
|
|
|
|
|
(a) Share-for-Share:
|
|
Modified Calculation Agent Adjustment
|
|
|
|
(b) Share-for-Other:
|
|
Modified Calculation Agent Adjustment
|
|
|
|
(c) Share-for-Combined:
|
|
Modified Calculation Agent Adjustment
|
|
|
|
Modified Calculation Agent Adjustment:
|
|
If, in respect of any Merger Event
to which Modified Calculation Agent
Adjustment applies, the adjustments
to be made in accordance with
Section 12.2(e)(i) of the Equity
Definitions would result in Issuer
being different from the issuer of
the Shares, then with respect to
such Merger Event, as a condition
precedent to the adjustments
contemplated in Section 12.2(e)(i)
of the Equity Definitions, Issuer
and the issuer of the Shares shall,
prior to the Merger Date, have
entered into such documentation
containing representations,
warranties and agreements relating
to securities law and other issues
as requested by Dealer that Dealer
has determined based on the advice
of counsel, in its reasonable
discretion, to be reasonably
necessary or advisable to allow
Dealer to continue as a party to the
Transaction, as adjusted under
Section 12.2(e)(i) of the Equity
Definitions, and to preserve its
hedging or hedge unwind activities
in connection with the Transaction
in a manner compliant with
applicable legal, regulatory or
self-regulatory requirements, or
with related policies and procedures
applicable to Dealer, and if such
conditions are not met or if the
Calculation Agent determines that no
adjustment that it could make under
Section 12.2(e)(i) of the Equity
Definitions will produce a
commercially reasonable result, then
the consequences set forth in
Section 12.2(e)(ii) of the Equity
Definitions shall apply.
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For the avoidance of doubt, if
Modified Calculation Agent
Adjustment applies as a consequence
of a Merger Event or Tender Offer,
and so long as Section 12.2(e)(ii)
or 12.3(d)(ii) does not apply, the
Calculation Agent shall make
adjustments pursuant to Section
12.2(e) or Section 12.3(d), as the
case may be, of the Equity
Definitions, to preserve the fair
value of the relevant Transaction to
the parties by making adjustments to
account for the net economic gain
obtained or loss suffered by Dealer
(taking into account any gain or
loss on Dealers Hedge Position in
respect of the relevant Transaction
and in each case applying consistent
methodology (which, for the
avoidance of doubt, will not be
based on mid-market quotes but will
be based on Dealers side of the
market)) as a result of the
occurrence of such Merger Event or
Tender Offer.
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9
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Nationalization, Insolvency
or Delisting:
|
|
Cancellation and Payment
(Calculation Agent Determination);
provided
that, in addition to the
provisions of Section 12.6(a)(iii)
of the Equity Definitions, it will
also constitute a Delisting if the
Exchange is located in the United
States and the Shares are not
immediately re-listed, re-traded or
re-quoted on any of the New York
Stock Exchange, The NASDAQ Global
Select Market or The NASDAQ Global
Market (or their respective
successors); if the Shares are
immediately re-listed, re-traded or
re-quoted on any such exchange or
quotation system, such exchange or
quotation system shall thereafter be
deemed to be the Exchange.
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|
Additional Disruption Events:
|
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|
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(a) Change in Law:
|
|
Applicable;
provided
that, Section
12.9(a)(ii) shall be amended by
inserting, at the end thereof, the
words , after using commercially
reasonable efforts to avoid such
increased cost.
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|
(b) Failure to Deliver:
|
|
Applicable
|
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|
|
(c) Insolvency Filing:
|
|
Applicable
|
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|
|
(d) Hedging Disruption:
|
|
Applicable;
provided
that, (i)
Section 12.9(a)(v) of the Equity
Definitions is hereby modified by
inserting the following two phrases
at the end of such Section:
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For the avoidance of doubt, the
term equity price risk shall be
deemed to include, but shall not be
limited to, stock price and
volatility risk. And, for the
further avoidance of doubt, any such
transactions or assets referred to
in phrases (A) or (B) above, must be
available on commercially reasonable
pricing terms, as anticipated on the
Trade Date;
provided
that, the
scheduled exercise or scheduled
expiration of call options on the
Shares (with a Trade Date of even
date herewith) sold by Dealer to
Issuer in accordance with the terms
of such call options shall not
provide the sole basis for the
occurrence of a Hedging Disruption.
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(ii) Section 12.9(b)(iii) of the
Equity Definitions is hereby
modified by inserting in the third
line thereof, after the words to
terminate the Transaction, the
following words:
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|
|
|
or a portion of the Transaction
affected by such Hedging
Disruption.
|
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|
|
(e) Increased Cost of Hedging:
|
|
Applicable;
provided
that, Section
12.9(a)(vi) shall be amended by
inserting, in the first line thereof
after the word incur, the words ,
after using commercially reasonable
efforts to avoid any increased costs
contemplated hereunder.
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10
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|
(f) Loss of Stock Borrow:
|
|
Applicable
|
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|
|
Maximum Stock Loan Rate:
|
|
[ ]% per annum
|
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|
|
(g) Increased Cost of Stock Borrow:
|
|
Applicable
|
|
|
|
Initial Stock Loan Rate:
|
|
[ ]% per annum
|
|
|
|
Hedging Party:
|
|
Dealer for all applicable Additional
Disruption Events.
|
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|
Determining Party:
|
|
Dealer;
provided
that, upon receipt
of written request from Issuer,
Determining Party shall promptly
(but in no event later than within
seven (7) Scheduled Trading Days
from the receipt of such request)
provide Issuer with a written
explanation describing in reasonable
detail any determination made by it
(including any quotations, market
data or information from internal
sources used in making such
calculations, but without disclosing
Dealers proprietary models).
|
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|
Non-Reliance:
|
|
Applicable
|
|
|
|
Agreements and Acknowledgments
Regarding Hedging Activities:
|
|
Applicable
|
|
|
|
Additional Acknowledgments:
|
|
Applicable
|
|
|
|
3.
Calculation Agent:
|
|
Dealer;
provided
that, upon receipt
of written request from Issuer,
Calculation Agent shall promptly
(but in no event later than within
seven (7) Scheduled Trading Days
from the receipt of such request)
provide Issuer with a written
explanation describing in reasonable
detail any calculation, adjustment
or determination made by it
(including any quotations, market
data or information from internal
sources used in making such
calculations, but without disclosing
Dealers proprietary models).
|
4.
Account Details
:
|
|
|
Dealer Payment Instructions:
|
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|
[ ]
|
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ABA No.:
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[ ]
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Acct.:
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[ ]
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Acct. No.:
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[ ]
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SWIFT:
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[ ]
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Account for delivery of Shares to Dealer: To be provided by Dealer
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Issuer Payment Instructions: To be provided by Issuer.
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5.
Offices
:
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The Office of Dealer for the Transaction is: London
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JPMorgan Chase Bank, National Association
London Branch
P.O. Box 161
11
60 Victoria Embankment
London EC4Y 0JP
England
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The Office of Issuer for the Transaction is:
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155 South Limerick Road, Limerick, Pennsylvania 19468
6.
Notices
: For purposes of this Confirmation:
(a)
Address for notices or communications to Issuer:
To: Teleflex Incorporated
Attn: Richard A. Meier
155 South Limerick Road
Limerick, Pennsylvania 19468
Telephone: (610) 948-5100
Facsimile: (610) 948-5101
(b)
Address for notices or communications to Dealer:
To: JPMorgan Chase Bank, National Association
4 New York Plaza, Floor 18
New York, NY 10004-2413
Attention: Mariusz Kwasnik
Title: Operations Analyst, EDG Corporate Marketing
Telephone No.: (212) 623-7223
Facsimile No.: (212) 623-7719
7.
Representations, Warranties and Agreements
:
(a) In addition to the representations and warranties in the Agreement and those contained
elsewhere herein, Issuer represents and warrants to and for the benefit of, and agrees with, Dealer
as follows:
(i) On the Trade Date and as of the date of any election by Issuer of the Share
Termination Alternative under (and as defined in) Section 8(a) below, (A) Issuer is not
aware of any material nonpublic information regarding Issuer or the Shares and (B) all
reports and other documents filed by Issuer with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
Exchange Act
), when
considered as a whole (with the more recent such reports and documents deemed to amend
inconsistent statements contained in any earlier such reports and documents), do not
contain any untrue statement of a material fact or any omission of a material fact required
to be stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading.
(ii) Without limiting the generality of Section 13.1 of the Equity Definitions, Issuer
acknowledges that neither Dealer nor any of its affiliates is making any representations or
warranties or taking any position or expressing any view with respect to the treatment of
the Transaction under any accounting standards including ASC Topic 260,
Earnings Per Share
,
ASC Topic 815,
Derivatives and Hedging
, or ASC Topic 480,
Distinguishing Liabilities from
Equity
and ASC 815-40,
Derivatives and Hedging Contracts in Entitys Own Equity
(or any
successor issue statements).
(iii) Prior to the Trade Date, Issuer shall deliver to Dealer a resolution of Issuers
board of directors authorizing the Transaction and such other certificate or certificates
as Dealer shall reasonably request.
(iv) Issuer is not entering into the Transaction to create actual or apparent trading
activity in the Shares (or any security convertible into or exchangeable for Shares) or to
raise or depress the price of the Shares (or any security convertible into or exchangeable
for Shares) for the purposes of inducing the purchase or sale of the Shares by others.
12
(v) Issuer is not, and after giving effect to the transactions contemplated hereby
will not be, required to register as an investment company as such term is defined in the
Investment Company Act of 1940, as amended.
(vi) On the Trade Date, the Premium Payment Date and any Additional Premium Payment
Date (A) the assets of Issuer at their fair valuation exceed the liabilities of Issuer,
including contingent liabilities, (B) the capital of Issuer is adequate to conduct the
business of Issuer and (C) Issuer has the ability to pay its debts and obligations as such
debts mature and does not intend to, or does not believe that it will, incur debt beyond
its ability to pay as such debts mature.
(vii) Issuer shall not take any action to decrease the number of Available Shares
below the Capped Number (each as defined below).
(viii) The representations and warranties of Issuer set forth in Section 3 of the
Agreement and Section 1 of the Underwriting Agreement are true and correct as of the Trade
Date and the Effective Date and are hereby deemed to be repeated to Dealer as if set forth
herein.
(ix) (A) During the period starting on the first Expiration Date and ending on the
last Expiration Date, but excluding any Open Trading Period, (the
Settlement Period
), the
Shares or securities that are convertible into, or exchangeable or exercisable for Shares
will not be subject to a restricted period, as defined in Regulation M under the Exchange
Act (
Regulation M
) and (B) Issuer shall not engage in any distribution, as such term is
defined in Regulation M until the second Exchange Business Day immediately following the
Settlement Period.
Open Trading Period
shall mean (i) a period commencing on March 5, 2018 and ending
on March 23, 2018 and (ii) a period commencing on April 27, 2018 and ending on May 17,
2018, each subject to extension for any Market Disruption Event as determined by Dealer.
(x) During the Settlement Period and on any other Exercise Date, neither Issuer nor
any affiliate or affiliated purchaser (each as defined in Rule 10b-18 of the Exchange
Act (
Rule 10b-18
)) shall directly or indirectly (including, without limitation, by means
of any cash-settled or other derivative instrument) purchase, offer to purchase, place any
bid or limit order that would effect a purchase of, or commence any tender offer relating
to, any Shares (or an equivalent interest, including a unit of beneficial interest in a
trust or limited partnership or a depository share) or any security convertible into or
exchangeable or exercisable for Shares, except through Dealer.
(xii) Issuer agrees that it (A) will not during the Settlement Period make, or permit
to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of
any Merger Transaction or potential Merger Transaction unless such public announcement is
made prior to the opening or after the close of the regular trading session on the Exchange
for the Shares; (B) shall promptly (but in any event prior to the next opening of the
regular trading session on the Exchange) notify Dealer following any such announcement that
such announcement has been made; and (C) shall promptly (but in any event prior to the next
opening of the regular trading session on the Exchange) provide Dealer with written notice
specifying (i) Issuers average daily Rule 10b-18 Purchases (as defined in Rule 10b-18)
during the three full calendar months immediately preceding the announcement date that were
not effected through Dealer or its affiliates and (ii) the number of Shares purchased
pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act for the three full
calendar months preceding the announcement date. Such written notice shall be deemed to be
a certification by Issuer to Dealer that such information is true and correct. In
addition, Issuer shall promptly notify Dealer of the earlier to occur of the completion of
such transaction and the completion of the vote by target shareholders.
Merger
Transaction
means any merger, acquisition or similar transaction involving a
recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act.
(xiii) Any Shares issued or delivered in connection with the Transaction shall be duly
authorized and validly issued, fully paid and non-assessable, and the issuance or delivery
thereof shall not be subject to any preemptive or similar rights and shall, upon issuance,
be accepted for
13
listing or quotation on the Exchange. The Shares of Issuer initially issuable upon
exercise of the Warrants have been reserved for issuance by all required corporate action
of the Issuer.
(b) Each of Dealer and Issuer agrees and represents that it is an eligible contract
participant as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as amended, and is
entering into the Transaction as principal (and not as agent or in any other capacity, fiduciary or
otherwise) and not for the benefit of any third party.
(c) Each of Dealer and Issuer acknowledges that the offer and sale of the Transaction to
Dealer is intended to be exempt from registration under the Securities Act, by virtue of Section
4(2) thereof. Accordingly, Dealer represents and warrants to Issuer that (i) it has the financial
ability to bear the economic risk of its investment in the Transaction and is able to bear a total
loss of its investment and its investments in and liabilities in respect of the Transaction, which
it understands are not readily marketable, are not disproportionate to its net worth, and it is
able to bear any loss in connection with the Transaction, including the loss of its entire
investment in the Transaction, (ii) it is an accredited investor as that term is defined in
Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for
its own account and without a view to the distribution or resale thereof, (iv) the assignment,
transfer or other disposition of the Transaction has not been and will not be registered under the
Securities Act and is restricted under this Confirmation, the Securities Act and state securities
laws, and (v) its financial condition is such that it has no need for liquidity with respect to its
investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing
or contemplated undertaking or indebtedness and is capable of assessing the merits of and
understanding (on its own behalf or through independent professional advice), and understands and
accepts, the terms, conditions and risks of the Transaction.
(d) Dealer represents to Issuer that Dealer is a financial institution, swap participant
and financial participant within the meaning of Sections 101(22), 101(53C) and 101(22A) of Title
11 of the United States Code (the
Bankruptcy Code
). The parties hereto agree and acknowledge
that they intend for (A) this Confirmation to be (i) a securities contract, as such term is
defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery
hereunder or in connection herewith is a termination value, payment amount or other transfer
obligation within the meaning of Section 362 of the Bankruptcy Code and a settlement payment
within the meaning of Section 546 of the Bankruptcy Code, and (ii) a swap agreement, as such term
is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and
delivery hereunder or in connection herewith is a termination value, payment amount or other
transfer obligation within the meaning of Section 362 of the Bankruptcy Code and a transfer
within the meaning of Section 546 of the Bankruptcy Code, and (B) that Dealer is entitled to the
protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o),
546(e), 546(g), 546(j), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.
(e) As a condition to the effectiveness of the Transaction, Issuer shall deliver to Dealer (A)
an incumbency certificate, dated as of the Trade Date, of Issuer in customary form and (B) an
opinion of counsel, dated as of the Effective Date (containing customary exceptions and
qualifications) and reasonably acceptable to Dealer in form and substance, with respect to the
matters set forth in Section 3(a) of the Agreement and Section 7(a)(v) and (xiii).
8.
Other Provisions
:
(a)
Alternative Calculations and Payment on Early Termination and on Certain Extraordinary
Events
. If Issuer shall owe Dealer any amount pursuant to Section 12.2, 12.3, 12.6, 12.7 or 12.9
of the Equity Definitions or pursuant to Section 6(d)(ii) of the Agreement (a
Payment
Obligation
), Issuer shall have the right, in its sole discretion, to satisfy any such Payment
Obligation by the Share Termination Alternative (as defined below) by giving irrevocable telephonic
notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 9:30 A.M.,
New York City time, on the Merger Date, Tender Offer Date, Announcement Date, Early Termination
Date or date of cancellation or termination in respect of an Extraordinary Event, as applicable
(
Notice of Share Termination
);
provided
that, if Issuer does not elect to satisfy its Payment
Obligation by the Share Termination Alternative, Dealer shall have the right, in its sole
discretion, to elect to require Issuer to satisfy its Payment Obligation by the Share Termination
Alternative, notwithstanding Issuers failure to elect or election to the contrary; and
provided
further
that, Issuer shall not have the right to so elect (but, for the avoidance of doubt, Dealer
shall have the right to so elect) in the event of (i) an Insolvency, a Nationalization, a Tender
Offer or a Merger
14
Event, in each case, in which the consideration or proceeds to be paid to holders of Shares
consists solely of cash or (ii) an Event of Default in which Issuer is the Defaulting Party or a
Termination Event in which Issuer is the Affected Party, which Event of Default or Termination
Event resulted from an event or events within Issuers control. Upon such Notice of Share
Termination, the following provisions shall apply on the Scheduled Trading Day immediately
following the Merger Date, the Tender Offer Date, Announcement Date, Early Termination Date or date
of cancellation or termination in respect of an Extraordinary Event, as applicable:
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Share Termination Alternative:
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Applicable and means that Issuer shall
deliver to Dealer the Share Termination
Delivery Property on the date on which
the Payment Obligation would otherwise be
due pursuant to Section 12.2, 12.3, 12.6,
12.7 or 12.9 of the Equity Definitions or
Section 6(d)(ii) of the Agreement, as
applicable (the
Share Termination
Payment Date
), in satisfaction of the
Payment Obligation.
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Share Termination Delivery
Property:
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A number of Share Termination Delivery
Units, as calculated by the Calculation
Agent, equal to the Payment Obligation
divided by the Share Termination Unit
Price. The Calculation Agent shall
adjust the Share Termination Delivery
Property by replacing any fractional
portion of the aggregate amount of a
security therein with an amount of cash
in the Settlement Currency equal to the
value of such fractional security based
on the values used to calculate the Share
Termination Unit Price.
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Share Termination Unit Price:
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The value of property contained in one
Share Termination Delivery Unit on the
date such Share Termination Delivery
Units are to be delivered as Share
Termination Delivery Property, as
determined by the Calculation Agent in
its discretion by commercially reasonable
means and notified by the Calculation
Agent to Issuer at the time of
notification of the Payment Obligation.
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Share Termination Delivery Unit:
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In the case of a Termination Event, Event
of Default, Delisting or Additional
Disruption Event, one Share or, in the
case of an Insolvency, Nationalization,
Merger Event or Tender Offer, one Share
or a unit consisting of the number or
amount of each type of property received
by a holder of one Share (without
consideration of any requirement to pay
cash or other consideration in lieu of
fractional amounts of any securities) in
such Insolvency, Nationalization, Merger
Event or Tender Offer. If such
Insolvency, Nationalization, Merger Event
or Tender Offer involves a choice of
consideration to be received by holders,
such holder shall be deemed to have
elected to receive the maximum possible
amount of cash.
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Failure to Deliver:
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Applicable
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Other Applicable Provisions:
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If Share Termination Alternative is
applicable, the provisions of Sections
9.1(c), 9.8, 9.9, 9.10, 9.11 and 9.12 of
the Equity Definitions will be applicable
as if Physical Settlement applied to
the Transaction, except that all
references to Shares shall be read as
references to Share Termination Delivery
Units;
provided
that, the Representation
and Agreement contained in Section 9.11
of the Equity Definitions shall be
modified by excluding any representations
therein relating to restrictions,
obligations, limitations or requirements
under applicable securities laws with
respect to securities comprising Share
Termination Delivery Units solely as a
result of the fact that Issuer is the
issuer of any Share Termination Delivery
Units (or any security forming a part
thereof). If, in the reasonable opinion
of Issuer or Dealer, based on advice of
counsel, for any reason, any securities
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comprising the Share Termination Delivery Units deliverable
pursuant to this Section 8(a) would not be immediately freely
transferable by Dealer under Rule 144 under the Securities Act,
then Dealer may elect to either (x) permit delivery of such
securities notwithstanding any restriction on transfer or (y) have
the provisions set forth in Section 8(b) below apply.
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(b)
Registration/Private Placement Procedures
. (i) With respect to the Transaction, the
following provisions shall apply to the extent provided for above opposite the caption Net Share
Settlement in Section 2 or in paragraph (a) of this Section 8. If so applicable, then, at the
election of Issuer (and for the avoidance of doubt Issuer must make an election described in
subclause (A) or (B) below) by notice to Dealer within two Exchange Business Days after the
relevant delivery obligation arises, but in any event at least one Exchange Business Day prior to
the date on which such delivery obligation is due, either (A) all Shares or Share Termination
Delivery Units, as the case may be, delivered by Issuer to Dealer shall be, at the time of such
delivery, covered by an effective registration statement of Issuer for immediate resale by Dealer
(such registration statement and the corresponding prospectus (the
Prospectus
) (including,
without limitation, any sections describing the plan of distribution) in form and content
commercially reasonably satisfactory to Dealer) or (B) Issuer shall deliver additional Shares or
Share Termination Delivery Units, as the case may be, so that the value of such Shares or Share
Termination Delivery Units, as determined by the Calculation Agent to reflect an appropriate
liquidity discount, equals the value of the number of Shares or Share Termination Delivery Units
that would otherwise be deliverable if such Shares or Share Termination Delivery Units were freely
tradeable (without prospectus delivery) upon receipt by Dealer (such value, the
Freely Tradeable
Value
);
provided
that, if requested by Dealer, Issuer shall make the election described in this
clause (B) with respect to Shares delivered on all Settlement Dates no later than one Exchange
Business Day prior to the first Exercise Date, and the applicable procedures described below shall
apply to all Shares delivered on the Settlement Dates on an aggregate basis. (For the avoidance of
doubt, as used in this paragraph (b) only, the term Issuer shall mean the issuer of the relevant
securities, as the context shall require.)
(ii) If Issuer makes the election described in clause (b)(i)(A) above:
(A) Dealer (or an affiliate of Dealer designated by Dealer) shall be afforded a
reasonable opportunity to conduct a due diligence investigation with respect to Issuer that
is customary in scope for underwritten offerings of equity securities and that yields
results that are commercially reasonably satisfactory to Dealer or such affiliate, as the
case may be; and
(B) Dealer (or an affiliate of Dealer designated by Dealer) and Issuer shall enter
into an agreement (a
Registration Agreement
) on customary and commercially reasonable
terms in connection with the public resale of such Shares or Share Termination Delivery
Units, as the case may be, by Dealer or such affiliate substantially similar to
underwriting agreements customary for underwritten offerings of equity securities of
similar size, in form and substance commercially reasonably satisfactory to Dealer or such
affiliate and Issuer, which Registration Agreement shall include, without limitation,
provisions substantially similar to those contained in such underwriting agreements
relating to the indemnification of, and contribution in connection with the liability of,
Dealer and its affiliates and Issuer, shall provide for the payment by Issuer of all
expenses in connection with such resale, including all registration costs and all
reasonable fees and expenses of counsel for Dealer, and shall provide for the delivery of
customary accountants comfort letters to Dealer or such affiliate with respect to the
financial statements and certain financial information contained in or incorporated by
reference into the Prospectus.
(iii) If Issuer makes the election described in clause (b)(i)(B) above:
(A) Dealer (or an affiliate of Dealer designated by Dealer) and any potential
institutional purchaser of any such Shares or Share Termination Delivery Units, as the case
may be, from Dealer or such affiliate identified by Dealer shall be afforded a reasonable
opportunity to conduct a due diligence investigation in compliance with applicable law with
respect to Issuer customary in scope for private placements of equity securities
(including, without limitation, the right to have made available to them for inspection all
financial and other records, pertinent
16
corporate documents and other information reasonably requested by them), subject to
execution by such recipients of customary confidentiality agreements reasonably acceptable
to Issuer;
(B) Dealer (or an affiliate of Dealer designated by Dealer) and Issuer shall enter
into an agreement (a
Private Placement Agreement
) on commercially reasonable terms in
connection with the private placement of such Shares or Share Termination Delivery Units,
as the case may be, by Issuer to Dealer or such affiliate and the private resale of such
shares by Dealer or such affiliate, substantially similar to private placement purchase
agreements customary for private placements of equity securities of similar size, in form
and substance commercially reasonably satisfactory to Dealer and Issuer, which Private
Placement Agreement shall include, without limitation, provisions substantially similar to
those contained in such private placement purchase agreements relating to the
indemnification of, and contribution in connection with the liability of, Dealer and its
affiliates and Issuer, shall provide for the payment by Issuer of all reasonable expenses
in connection with such resale, including all fees and expenses of counsel for Dealer,
shall contain representations, warranties and agreements of Issuer reasonably necessary or
advisable to establish and maintain the availability of an exemption from the registration
requirements of the Securities Act for such resales, and shall use reasonable efforts to
provide for the delivery of customary accountants comfort letters to Dealer or such
affiliate with respect to the financial statements and certain financial information
contained in or incorporated by reference into the offering memorandum prepared for the
resale of such Shares;
(C) Issuer agrees that any Shares or Share Termination Delivery Units so delivered to
Dealer, (i) may be transferred by and among Dealer and its affiliates, and Issuer shall
effect such transfer without any further action by Dealer and (ii) after the minimum
holding period within the meaning of Rule 144(d) under the Securities Act has elapsed
with respect to such Shares or any securities issued by Issuer comprising such Share
Termination Delivery Units, Issuer shall promptly remove, or cause the transfer agent for
such Shares or securities to remove, any legends referring to any such restrictions or
requirements from such Shares or securities upon delivery by Dealer (or such affiliate of
Dealer) to Issuer or such transfer agent of any sellers and brokers representation
letters customarily delivered by Dealer in connection with resales of restricted securities
pursuant to Rule 144 under the Securities Act, without any further requirement for the
delivery of any certificate, consent, agreement, opinion of counsel, notice or any other
document, any transfer tax stamps or payment of any other amount or any other action by
Dealer (or such affiliate of Dealer); and
(D) Issuer shall not take, or cause to be taken, any action that would make
unavailable either the exemption pursuant to Section 4(2) of the Securities Act for the
sale by Issuer to Dealer (or any affiliate designated by Dealer) of the Shares or Share
Termination Delivery Units, as the case may be, or the exemption pursuant to Section 4(1)
or Section 4(3) of the Securities Act for resales of the Shares or Share Termination
Delivery Units, as the case may be, by Dealer (or any such affiliate of Dealer).
(c)
Make-whole Shares
. If Issuer makes the election described in clause (i)(B) of paragraph
(b) of this Section 8, then Dealer or its affiliates may sell (which sale shall be made in a
commercially reasonable manner) such Shares or Share Termination Delivery Units, as the case may
be, during a period (the
Resale Period
) commencing on the Exchange Business Day following
delivery of such Shares or Share Termination Delivery Units, as the case may be, and ending on the
Exchange Business Day on which Dealer or its affiliates completes the sale of all such Shares or
Share Termination Delivery Units, as the case may be, or a sufficient number of Shares or Share
Termination Delivery Units, as the case may be, so that the realized net proceeds of such sales
exceed the Freely Tradeable Value. If any of such delivered Shares or Share Termination Delivery
Units remain after such realized net proceeds exceed the Freely Tradeable Value, Dealer shall
return such remaining Shares or Share Termination Delivery Units to Issuer. If the Freely
Tradeable Value exceeds the realized net proceeds from such resale, Issuer shall transfer to Dealer
by the open of the regular trading session on the Exchange on the Exchange Trading Day immediately
following the last day of the Resale Period the amount of such excess (the
Additional Amount
) in
cash or in a number of additional Shares or Share Termination Delivery Units, as the case may be,
(
Make-whole Shares
) in an amount that, based on the VWAP Price on the last day of the Resale
Period, has a dollar value equal to the Additional Amount. The Resale Period shall continue to
enable the
17
sale of the Make-whole Shares in the manner contemplated by this Section 8(c). This provision
shall be applied successively until the Additional Amount is equal to zero, subject to Section
8(e).
(d)
Beneficial Ownership
. Notwithstanding anything to the contrary in the Agreement or this
Confirmation, in no event shall Dealer be entitled to receive, or shall be deemed to receive, any
Shares if, immediately upon giving effect to such receipt of such Shares, (i) the beneficial
ownership (within the meaning of Section 13 of the Exchange Act and the rules promulgated
thereunder) of Shares by Dealer, any of its affiliates subject to aggregation with Dealer for
purposes of the beneficial ownership test under Section 13 of the Exchange Act and all persons
who may form a group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer
with respect to beneficial ownership of any Shares (collectively,
Dealer Group
) would be equal
to or greater than 9.0% or more of the outstanding Shares on the date of determination (ii)
Warrant Equity Percentage exceeds 14.5% or (iii) Dealer, Dealer Group or any person whose ownership
position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such
person, a
Dealer Person
) under Section 203 of the Delaware General Corporation Law or other
federal, state or local regulations or regulatory orders applicable to ownership of Shares
(
Applicable Laws
), would own, beneficially own, constructively own, control, hold the power to
vote or otherwise meet a relevant definition of ownership in excess of a number of Shares equal to
(x) the number of Shares that would give rise to reporting or registration obligations or other
requirements (including obtaining prior approval by a state or federal regulator) of a Dealer
Person under Applicable Laws and with respect to which such requirements have not been met or the
relevant approval has not been received or that would subject a Dealer Person to restrictions
(including restrictions relating to business combinations and other designated transactions) under
Applicable Laws
minus
(y) 1.0% of the number of Shares outstanding on the date of determination
(either such condition described in clause (i), (ii) or (iii), an
Excess Ownership Position
).
The
Warrant Equity Percentage
as of any day is the fraction, expressed as a percentage, (i) the
numerator of which is the sum of (x) the sum of the products of the Number of Warrants and the
Warrant Entitlement for all Components and (y) the aggregate number of Shares underlying any other
warrants purchased by Dealer from Issuer, and (ii) the denominator of which is the number of Shares
outstanding. If any delivery owed to Dealer hereunder is not made, in whole or in part, as a
result of this provision, Issuers obligation to make such delivery shall not be extinguished and
Issuer shall make such delivery as promptly as practicable after, but in no event later than one
Exchange Business Day after, Dealer gives notice to Issuer that such delivery would not result in
the existence of an Excess Ownership Position.
(e)
Limitations on Settlement by Issuer
. Notwithstanding anything herein or in the Agreement
to the contrary, in no event shall Issuer be required to deliver Shares in connection with the
Transaction in excess of 3,990,711 Shares (as such number may be adjusted from time to time in
accordance with the provisions hereof) (the
Capped Number
). Issuer covenants to maintain a
number of authorized but unissued Shares that are not reserved for future issuance in connection
with transactions in the Shares (other than the Transaction) on the day the Capped Number is
determined and each day during the Transaction (such Shares, the
Available Shares
) equal to or
greater than the Capped Number. In the event Issuer shall not have delivered the full number of
Shares otherwise deliverable as a result of this Section 8(e) (the resulting deficit, the
Deficit
Shares
), Issuer shall be continually obligated to deliver Shares, from time to time until the full
number of Deficit Shares have been delivered pursuant to this paragraph, when, and to the extent,
that (A) Shares are repurchased, acquired or otherwise received by Issuer or any of its
subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other
consideration), (B) authorized and unissued Shares reserved for issuance in respect of other
transactions prior to such date which prior to the relevant date become no longer so reserved and
(C) Issuer additionally authorizes any unissued Shares that are not reserved for other transactions
(such events as set forth in clauses (A), (B) and (C) above, collectively, the
Share Issuance
Events
). To the extent and for so long as Deficit Shares exist, Issuer shall promptly notify
Dealer of the occurrence of any of the Share Issuance Events (including the number of Shares
subject to clause (A), (B) or (C) and the number of Shares to be delivered) and, as promptly as
reasonably practicable, deliver such Shares thereafter. Issuer shall not, until Issuers
obligations under the Transaction have been satisfied in full, use any Shares that become available
for potential delivery to Dealer as a result of any Share Issuance Event for the settlement or
satisfaction of any transaction or obligation other than the Transaction or reserve any such Shares
for future issuance for any purpose other than to satisfy Issuers obligations to Dealer under the
Transaction.
18
(f)
Equity Rights
. Dealer acknowledges and agrees that this Confirmation is not intended to
convey to it rights with respect to the Transaction that are senior to the claims of common
stockholders in the event of Issuers bankruptcy. For the avoidance of doubt, the parties agree
that the preceding sentence shall not apply at any time other than during Issuers bankruptcy to
any claim arising as a result of a breach by Issuer of any of its obligations under this
Confirmation or the Agreement. For the avoidance of doubt, the parties acknowledge that the
obligations of Issuer under this Confirmation are not secured by any collateral that would
otherwise secure the obligations of Issuer herein under or pursuant to any other agreement.
(g)
Adjustments
. Dealer acknowledges and agrees that any adjustment by the Calculation Agent
to the terms of the Transaction after the Trade Date that affects the Number of Shares to be
Delivered or the Option Cash Settlement Amount, as applicable, would be an adjustment that is based
on factors that would serve as an input to or theoretical modeling assumptions for the fair value
of a fixed-for-fixed option on equity shares. These factors may include Issuers stock price and
additional variables, including the strike price of the instrument, term of the instrument,
expected dividends or other dilutive activities, stock borrow cost, interest rates, stock price
volatility, Issuers credit spread or the ability to maintain a standard hedge position in the
underlying shares.
(h)
Amendments to Equity Definitions
. The following amendments shall be made to the Equity
Definitions:
(i) The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause
(A) thereof, is hereby amended to read as follows: (c) If Calculation Agent Adjustment
is specified as the Method of Adjustment in the related Confirmation of a Share Option
Transaction, then following the announcement or occurrence of any Potential Adjustment
Event, the Calculation Agent will determine whether such Potential Adjustment Event has a
material effect on the theoretical value of the relevant Shares or options on the Shares
and, if so, will (i) make appropriate adjustment(s), if any, to any one or more of: and,
the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by
deleting the words diluting or concentrative and the words (provided that, no
adjustments will be made to account solely for changes in volatility, expected dividends,
stock loan rate or liquidity relative to the relevant Shares) and replacing such latter
phrase with the words (and, for the avoidance of doubt, adjustments may be made to account
solely for changes in volatility, expected dividends, stock loan rate or liquidity relative
to the relevant Shares resulting from such Potential Adjustment Event) For the avoidance
of doubt, the Calculation Agent shall make adjustments pursuant to Section 11.2(c) of the
Definitions (as amended hereby) to preserve the fair value of the relevant Transaction to
the parties by making adjustments to account for the net economic gain obtained or loss
suffered by Dealer (taking into account any gain or loss on Dealers Hedge Position in
respect of the relevant Transaction and, in each case, applying consistent methodology
(which, for the avoidance of doubt, will not be based on mid-market quotes but will be
based on Dealers side of the market)) as a result of the occurrence of such Potential
Adjustment Event;
(ii) Sections 11.2(a) and 11.2(e)(vii) of the Equity Definitions are hereby amended by
deleting the words diluting or concentrative and replacing them with material and
adding the phrase or options on the Shares at the end of the sentence;
(iii) Section 12.1(l) of the Equity Definitions shall be amended (x) by deleting the
parenthetical phrase in both the third line thereof and the fifth line thereof and (y) by
replacing the word that in both the third line thereof and the fifth line thereof with
the words whether or not such announcement, (ii) Sections 12.2(b), 12.2(e), 12.3(a) and
12.3(d) of the Equity Definitions shall each be amended by replacing each occurrence of the
words Merger Date and Tender Offer Date, as the case may be, with the words
Announcement Date, and (iii) (A) Section 12.2(e) shall be amended by inserting, in the
first line thereof, after the newly inserted words Announcement Date, the words (or, if
the Calculation Agent reasonably determines that such adjustment is appropriate, on the
relevant Merger Date or the date on which the Calculation Agent reasonably determines that
the Merger Event, with respect to which such Announcement Date has occurred, will not be
completed) and (B) Section 12.3(d) shall be amended by inserting, in the first line
thereof, after the newly inserted words Announcement Date, the words (or, if the
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Calculation Agent reasonably determines that such adjustment is appropriate, on the
relevant Tender Offer Date or the date on which the Calculation Agent reasonably determines
that an event, with respect to which such Announcement Date has occurred, will not be
completed).
(iv) Section 12.9(b)(iv) of the Equity Definitions is hereby amended by (A) deleting
(1) subsection (A) in its entirety, (2) the phrase or (B) following subsection (A) and
(3) the phrase in each case in subsection (B); (B) replacing will lend with lends in
subsection (B); and (C) deleting the phrase neither the Non-Hedging Party nor the Lending
Party lends Shares in the amount of the Hedging Shares or in the penultimate sentence;
(v) Section 12.9(b)(v) of the Equity Definitions is hereby amended by (A) adding the
word or immediately before subsection (B) and deleting the comma at the end of
subsection (A); and (B)(1) deleting subsection (C) in its entirety, (2) deleting the word
or immediately preceding subsection (C), (3) replacing in the penultimate sentence the
words either party with the Hedging Party and (4) deleting clause (X) in the final
sentence;
provided
,
however
that, such amendment to Section 12.9(b)(iv) shall be deemed
applicable to this Transaction solely until August 1, 2017 and shall deemed null and void
with respect to any date occurring after such date; and
(vi) Section 12.7(b) of the Equity Definitions is hereby amended by deleting the words
(and in any event within five Exchange Business Days) by the parties after appearing
after the words agreed promptly and replacing with the words by the parties on or prior
to.
(i)
Transfer and Assignment
. Dealer may transfer or assign its rights and obligations
hereunder and under the Agreement, in whole or in part, at any time without the consent of Issuer.
Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing
Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Issuer,
Dealer may designate any of its affiliates to purchase, sell, receive or deliver such shares or
other securities and otherwise to perform Dealer obligations in respect of the Transaction and any
such designee may assume such obligations. Dealer shall be discharged of its obligations to Issuer
to the extent of any such performance.
(j)
Disclosure
. Effective from the date of commencement of discussions concerning the
Transaction, Issuer and each of its employees, representatives, or other agents may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax structure of the
Transaction and all materials of any kind (including opinions or other tax analyses) that are
provided to Issuer relating to such tax treatment and tax structure.
(k)
Additional Termination Events
. The occurrence of any of the following shall constitute an
Additional Termination Event with respect to which the Transaction shall be the sole Affected
Transaction and Issuer shall be the sole Affected Party and Dealer shall be the party entitled to
designate an Early Termination Date pursuant to Section 6(b) of the Agreement and to determine the
amount payable pursuant to Section 6(e) of the Agreement;
provided
that, with respect to any
Additional Termination Event, Dealer may choose to treat part of the Transaction as the sole
Affected Transaction, and, upon the termination of the Affected Transaction, a Transaction with
terms identical to those set forth herein except with a Number of Warrants equal to the unaffected
number of Warrants shall be treated for all purposes as the Transaction, which shall remain in full
force and effect:
(i) Dealer reasonably determines based on the advice of counsel that it is advisable
to terminate a portion of the Transaction so that Dealers related hedging activities will
comply with applicable securities laws, rules or regulations or related policies and
procedures of Dealer (whether or not such requirements, policies or procedures are imposed
by law or have been voluntarily adopted by Dealer), or Dealer, despite using commercially
reasonable efforts, is unable or reasonably determines based on the advice of counsel that
it is impractical or illegal to hedge its obligations pursuant to this Transaction in the
public market without registration under the Securities Act or as a result of any legal,
regulatory or self-regulatory requirements;
(ii) at any time at which any Excess Ownership Position occurs, Dealer, in its
discretion, is unable to effect a transfer or assignment to a third party of the
Transaction or any other transaction between the parties after using its commercially
reasonable efforts on pricing and terms and within a time period reasonably acceptable to
Dealer such that an Excess Ownership
20
Position no longer exists;
provided
that, Dealer shall treat only that portion of the
Transaction as the Affected Transaction as necessary so that such Excess Ownership Position
no longer exists;
(iii) a person or group within the meaning of Section 13(d) of the Exchange Act,
other than the Issuer, its subsidiaries and its and their respective employee benefit
plans, files a Schedule TO or any schedule, form or report under the Exchange Act
disclosing that such person or group has become, or Issuer acquires knowledge based upon a
public announcement by such a person or group, that such a person or group has become, the
direct or indirect beneficial owner, as defined in Rule 13d-3 under the Exchange Act, of
the Issuers common equity representing more than 50% of the voting power of the Issuers
common equity;
(iv) consummation of (x) any recapitalization, reclassification or change of Shares
(other than changes resulting from a subdivision or combination) as a result of which the
Shares would be converted into, or exchanged for, stock, other securities, other property
or assets or (y) any share exchange, consolidation or merger of Issuer pursuant to which
the Shares will be converted into cash, securities or other property or assets, or any
sale, conveyance, transfer, lease or other disposition, in one transaction or a series of
transactions, of all or substantially all of the consolidated assets of the Issuer and its
subsidiaries, taken as a whole, to any person other than the Issuer or one of its
subsidiaries;
provided, however
, that a transaction (A) as a result of which the holders of
all classes of the Issuers common equity immediately prior to such transaction will own,
directly or indirectly, more than 50% of all classes of common equity of the continuing or
surviving corporation or limited liability company (that is treated as a corporation for
U.S. federal income tax purposes) or transferee or a direct or indirect parent thereof
immediately after such transaction or (B) which is effected solely to change Issuers
jurisdiction of incorporation into a jurisdiction within the United States of America and
results in reclassification, conversion or exchange of outstanding Shares solely into shares of common stock of the surviving entity or a direct or indirect parent thereof,
shall not be an Additional Termination Event;
provided further
, that, for the avoidance of
doubt, the sale, conveyance, transfer, lease or other disposition, in one transaction or a
series of transactions, of all or substantially all of the assets of Issuers Commercial
and/or Aerospace segments (as defined in Issuers condensed consolidated financial
statements for the six months ended June 27, 2010) shall not constitute an Additional
Termination Event; or
(v) the Issuers stockholders approve any plan or proposal for the liquidation or
dissolution of the Issuer.
Notwithstanding the foregoing, a transaction or transactions described in clause (iii)
or (iv) will not constitute an Additional Termination Event if at least 90% of the
consideration (excluding cash payments for fractional shares and cash payments made
pursuant to dissenters appraisal rights and cash dividends) received or to be received by
Issuers shareholders in connection with such transaction or transactions consists of
shares of common stock or equivalent common equity that are listed or quoted on any of the
New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or
any of their respective successors) or will be so listed or quoted when issued or exchanged
in connection with such transaction or transactions.
(l)
Effectiveness
. If, on or prior to the Effective Date, Dealer reasonably determines based
in the advice of counsel that it is reasonably necessary or advisable to cancel the Transaction
because of concerns that Dealers related hedging activities could be viewed as not complying with
applicable securities laws, rules or regulations, the Transaction shall be cancelled and shall not
become effective, and neither party shall have any obligation to the other party in respect of the
Transaction.
(m)
Extension of Settlement
. Dealer may divide any Component into additional Components and
designate the Expiration Date and the Number of Warrants for each such Component if Dealer
determines, in its reasonable discretion, that such further division is reasonably necessary or
advisable to preserve Dealers hedging or hedge unwind activity hereunder in light of existing
liquidity conditions in the cash market or stock loan market.
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(n)
No Netting and Set-off.
The provisions of Section 2(c) of the Agreement shall not apply
to the Transaction. Each party waives any and all rights it may have to set-off delivery or
payment obligations it owes to the other party under the Transaction against any delivery or
payment obligations owed to it by the other party, whether arising under the Agreement, under any
other agreement between parties hereto, by operation of law or otherwise.
(o)
Delivery of Cash
. For the avoidance of doubt, nothing in this Confirmation shall be
interpreted as requiring the Issuer to deliver cash in respect of the settlement of the
Transaction, except in circumstances where the required cash settlement thereof is permitted for
classification of the contract as equity by ASC 815-40 (formerly EITF 00-19) as in effect on the
relevant Trade Date (including, without limitation, where the Issuer so elects to deliver cash or
fails timely to elect to deliver Shares or Share Termination Delivery Property in respect of such
settlement).
(p)
Governing Law
.
THE AGREEMENT, THIS CONFIRMATION AND ALL MATTERS ARISING IN CONNECTION
WITH THE AGREEMENT AND THIS CONFIRMATION SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW
DOCTRINE, OTHER THAN TITLE 14 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(q)
Amendment
. This Confirmation and the Agreement may not be modified, amended or
supplemented, except in a written instrument signed by Issuer and Dealer.
(r)
Counterparts
. This Confirmation may be executed in several counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the same instrument.
9.
Waiver of Jury Trial
. Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any suit, action or
proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or
attorney of the other party has represented, expressly or otherwise, that such other party would
not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and
(ii) acknowledges that it and the other party have been induced to enter into the Transaction by,
among other things, the mutual waivers and certifications provided herein.
10.
Submission to Jurisdiction
.
Section 13(b)
of the Agreement is deleted in its
entirety and replaced by the following:
Each party hereby irrevocably and unconditionally submits for itself and its property in
any suit, legal action or proceeding relating to the Agreement and/or the Transaction, or
for recognition and enforcement of any judgment in respect thereof, (each, Proceedings)
to the exclusive jurisdiction of the Supreme Court of the State of New York, sitting in New
York County, the courts of the United States of America for the Southern District of New
York and appellate courts from any thereof. Nothing in this Confirmation or the Agreement
precludes either party from bringing Proceedings in any other jurisdiction if (A) the
courts of the State of New York or the United States of America for the Southern District
of New York lack jurisdiction over the parties or the subject matter of the Proceedings or
decline to accept the Proceedings on the grounds of lacking such jurisdiction; (B) the
Proceedings are commenced by a party for the purpose of enforcing against the other partys
property, assets or estate any decision or judgment rendered by any court in which
Proceedings may be brought as provided hereunder; (C) the Proceedings are commenced to
appeal any such courts decision or judgment to any higher court with competent appellate
jurisdiction over that courts decisions or judgments if that higher court is located
outside the State of New York or Borough of Manhattan, such as a federal court of appeals
or the U.S. Supreme Court; or (D) any suit, action or proceeding has been commenced in
another jurisdiction by or against the other party or against its property, assets or
estate and, in order to exercise or protect its rights, interests or remedies under the
Agreement or this Confirmation, the party (1) joins, files a claim, or takes any other
action, in any such suit, action or proceeding, or (2) otherwise commences any Proceeding
in that other jurisdiction as the result of that other suit, action or proceeding having
commenced in that other jurisdiction.
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11.
Role of Agent
. Each party agrees and acknowledges that (i) J.P. Morgan
Securities Inc., an affiliate of Dealer (
JPMSI
), has acted solely as agent and not as principal
with respect to this Transaction and (ii) JPMSI has no obligation or liability, by way of guaranty,
endorsement or otherwise, in any manner in respect of this Transaction (including, if applicable,
in respect of the settlement thereof). Each party agrees it will look solely to the other party (or
any guarantor in respect thereof) for performance of such other partys obligations under this
Transaction.
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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing
this Confirmation and returning it to EDG Confirmation Group, J.P. Morgan Securities Inc., 277 Park
Avenue, 11th Floor, New York, NY 10172-3401, or by fax to
(212) 622 8519
.
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Very truly yours,
J.P. Morgan Securities Inc., as agent for
JPMorgan Chase Bank, National Association
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By:
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Authorized Signatory
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Name:
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Accepted and confirmed
as of the Trade Date:
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TELEFLEX INCORPORATED
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By:
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Name:
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Title:
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JPMorgan Chase Bank, National Association
Organised under the laws of the United States as a National Banking Association
Main Office 1111 Polaris Parkway, Columbus, Ohio 43271
Registered as a branch in England & Wales branch No. BR000746
Registered Branch Office 125 London Wall, London EC2Y 5AJ
Authorised and regulated by the Financial Services Authority
Annex A
For each Component of the Transaction, the Number of Warrants and Expiration Date is set forth
below.
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Component Number
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Number of Warrants
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Expiration Date
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